Number range CHAPTER

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

)

THE UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

versus ) Civil Action No.: 4-96-995

) Judge Tunheim

)

ELLERBE BECKET, INC., )

) ORAL ARGUMENT REQUESTED

Defendant. )

)

**UNITED STATES\' MEMORANDUM IN OPPOSITION TO**

**DEFENDANT\'S MOTION TO DISMISS**

TABLE OF CONTENTS

I. FACTUAL BACKGROUND 2

A. The United States\' investigations of Ellerbe 2

B. Other factual issues 5

II\. THE ADA\'S REQUIREMENTS FOR NEW CONSTRUCTION 7

III\. ARGUMENT 9

A. The legal standard for granting a motion to\
dismiss. 9

B. Architects who design buildings to be inaccessible\
to or unusable by individuals with disabilities\
can be held liable under title III of the ADA. 10

1\. The ADA\'s new construction requirements are broadly drawn, and
apply to all parties\
involved in the design and construction of inaccessible facilities. 10

2\. By specifically including the term \"design\"\
in section 303, Congress clearly signalled\
its intent to bring those who design new facilities \-- architects and
other designers\
\-- within the scope of section 303\'s\
coverage. 17

3\. Holding architects responsible for designing buildings that exclude
individuals with disabilities is consistent with the purposes\
of the ADA. 19

C. In sports stadiums and arenas, where other spectators can be expected
to stand, wheelchair seating\
locations must provide wheelchair users with lines\
of sight over standing spectators. 21

1\. Title III of the ADA requires all new sports stadiums and arenas to
be readily accessible\
to and usable by individuals with\
disabilities. 21

2\. The Department of Justice\'s interpretation of title III of the ADA
and the title III\
regulation is reasonable. 22

3\. The Department of Justice\'s interpretation of the ADA\'s
architectural requirements is entitled to deference. 24

D. The United States\' claim is properly before this Court. 27

E. This is an appropriate case for imposing a civil penalty and granting
injunctive relief. 33

IV\. CONCLUSION 35

TABLE OF EXHIBITS

A Letter dated August 24, 1994 from Civil Rights Division, U.S.
Department of Justice, to Mr. Steven L. Allison, Ellerbe Becket
Architects.

B Letter dated December 6, 1994 from Civil Rights Division, U.S.
Department of Justice, to Mr. Vincent W. King, General Counsel, Ellerbe
Becket, Inc.

C Letter dated February 28, 1996 from Civil Rights Division, U.S.
Department of Justice, to Mr. Vincent W. King, Deputy General Counsel,
Ellerbe Becket, Inc.

D Letter dated December 9, 1994 from Vincent W. King, Ellerbe Becket, to
Thomas M. Contois, Civil Rights Division, U.S. Department of Justice,
transmitting Project File Index for Oregon Arena Project.

E Excerpts of deposition testimony of Mr. Gordon Wood, [Paralyzed
Veterans of America, et al. v. Ellerbe Becket Architects & Engineers,
P.C., et al.]{.underline} (D.D.C. Civil Action No. 96-1354 (TFH)) (\"the
MCI Center case\"), taken September 26, 1996.

F Excerpts of deposition testimony of Mr. Steven Allison, [Independent
Living Resources, et al. v. Oregon Arena Corp.]{.underline} (D. Ore.
Civil Action No. 95-84-AS) (\"the Rose Garden Case\"), taken October 3,
1995.

G Excerpts of deposition testimony of Mr. Gordon Wood, [Independent
Living Resources, et al. v. Oregon Arena Corp.]{.underline} (D. Ore.
Civil Action No. 95-84-AS) (\"the Rose Garden Case\"), taken October 4,
1995.

H U.S. Department of Justice, Civil Rights Division, Public Access
Section, [THE AMERICANS WITH DISABILITIES ACT Title III Technical
Assistance Manual]{.underline}, Covering Public Accommodations and
Commercial Facilities (November 1993 and Supp. 1994)

I [Paralyzed Veterans of America v. Ellerbe Becket Architects &
Engineers, P.C.]{.underline}, No. 96-1354 (TFH), transcript of bench op.
(D.D.C. Oct. 21, 1996).

J [Orr v. Kindercare]{.underline}, No. S-95-507 EJG/GGH, slip op. (E.D.
Cal. June 9, 1995).

TABLE OF AUTHORITIES

[Cases]{.underline}: [Page(s)]{.underline}:

[Anderson v. Liberty Lobby]{.underline}, 477 U.S. 242 (1986) 9

[Beck v. Levering]{.underline}, 947 F.2d 639 (2d Cir. 1991), 34

*cert. denied*, 504 U.S. 909 (1992)

[Benson v. Northwest Airlines, Inc.]{.underline}, 62 F.3d 1108 27

(8th Cir. 1995)

[Board of Regents of the University of Minnesota v.]{.underline} 25

[Shalala]{.underline}, 53 F.3d 940 (8th Cir. 1995)

[Carparts Distrib. Ctr., Inc. v. Automotive]{.underline} 19

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

[Chevron, U.S.A., Inc. v. Natural Resources Defense]{.underline} 15

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

[Coleman v. Watt]{.underline}, 40 F.3d 255 (8th Cir. 1994) 9

[EEOC v. Harris Chernin, Inc.]{.underline}, 10 F.3d 1286 29, 30

(7th Cir. 1993)

[EEOC v. Kimberly-Clark Corp.]{.underline}, 511 F.2d 1352 (6th Cir.), 29

*cert. denied*, 423 U.S. 994 (1975)

[Ferguson v. City of Phoenix]{.underline}, 931 F. Supp. 688 27

(D. Ariz. 1996)

[Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35 26

(D.D.C. 1994)

[Goodman\'s Furn. Co. v. United States Postal Serv.]{.underline}, 28

561 F.2d 462 (3d Cir. 1977) (Weis, J., concurring)

[Hamm v. Groose]{.underline}, 15 F.3d 110 (8th Cir. 1994) 9

[Howe v. Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994) 19

[In re Workers\' Compensation Refund]{.underline}, 46 F.3d 813 31

(8th Cir. 1995)

[Innovative Health Sys. v. City of White Plains]{.underline}, 27

931 F. Supp 222 (S.D.N.Y. 1996)

[International Bhd. of Teamsters v. United States]{.underline}, 32

431 U.S. 324 (1977)

[Kerr-McGee Chem. Corp. v. Hartigan]{.underline}, 816 F.2d 1177 28

(7th Cir. 1987)

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993), 19

*cert. denied sub nom.* [Hoskins v. Kinney]{.underline},

114 S. Ct. 1545 (1994)

[Martin v. Feilen]{.underline}, 965 F.2d 660 (8th Cir. 1992) 34

[Moskal v. United States]{.underline}, 498 U.S. 103 (1990) 14

[Munoz v. Imperial County]{.underline}, 667 F.2d 811 (9th Cir.), 28

*cert. denied*, 459 U.S. 825 (1982)

[Newark Branch, NAACP v. Town of Harrison]{.underline}, 28

940 F.2d 792 (3d Cir. 1991)

[Northwest Airlines, Inc. v. American Airlines, Inc.]{.underline}, 32

792 F. Supp. 655 (D. Minn. 1992)

[Orr v. Kindercare]{.underline}, Civ. No. S-95-507 EJG/GGH, slip op. 27

(E.D. Cal. June 9, 1995)

[Orthmann v. Apple River Campground, Inc.]{.underline}, 765 F.2d 119 32

(8th Cir. 1985)

[Paralyzed Veterans of America v. Ellerbe Becket]{.underline} 4, 16, 18

[Architects & Engineers, P.C.]{.underline}, 945 F. Supp. 1

(D.D.C. 1996)

[Paralyzed Veterans of America v. Ellerbe Becket]{.underline} 32

[Architects & Engineers, P.C.]{.underline}, No. 96-1534

(TFH), 1996 WL 748416 (D.D.C. Dec. 20, 1996)

[Paralyzed Veterans of America v. Ellerbe Becket]{.underline} 23, 24,
25, 26

[Architects & Engineers, P.C.]{.underline}, No. 96-1534

(TFH), 1996 WL 748420 (D.D.C. Dec. 20, 1996)

[Paralyzed Veterans of America v. Ellerbe Becket]{.underline} 23, 24

[Architects & Engineers, P.C.]{.underline}, No. 96-1534

(TFH), bench op. (D.D.C. Oct. 21, 1996)

[Peyton v. Rowe]{.underline}, 391 U.S. 54 (1968) 19

[Pinnock v. International House of Pancakes]{.underline}, 27

844 F. Supp. 574 (S.D. Cal. 1993),

*cert. denied*, 114 S. Ct. 2726 (1994)

[RSBI Aerospace, Inc. v. Affiliated FM Insurance Co.]{.underline}, 9

49 F.3d 399 (8th Cir. 1995)

[Rettig v. Pension Benefit Guar. Corp.]{.underline}, 744 F.2d 133 19

(D.C. Cir. 1984)

[Tcherepnin v. Knight]{.underline}, 389 U.S. 332 (1967) 19

[Thomas Jefferson University v. Shalala]{.underline}, 25, 26

114 S. Ct. 2381 (1994)

[Tull v. United States]{.underline}, 481 U.S. 412 (1987) 33

[Tyus v. Schoemehl]{.underline}, 93 F.3d 449 (8th Cir. 1996) 29

[United States v. Balistrieri]{.underline}, 981 F.2d 916 (7th Cir. 1992)
33

[United States v. East Baton Rouge Parish School Board]{.underline}, 29

594 F.2d 56 (5th Cir. 1979)

[United States v. ITT Continental Baking Co.]{.underline}, 33

420 U.S. 223 (1975)

[United States v. Menasche]{.underline}, 348 U.S. 528 (1955) 14

[United States v. Mendoza]{.underline}, 464 U.S. 154 (1984) 30

[United States v. Reader\'s Digest Ass\'n, Inc.]{.underline}, 33

662 F.2d 955 (3d Cir. 1981)

[Wilkes v. Gomez]{.underline}, 32 F.3d 1324 (8th Cir. 1994) 25

[Statutes]{.underline}:

42 U.S.C. §§ 12101 *et seq.* 7

42 U.S.C. § 12101(a)(5) 7

42 U.S.C. § 12101(b)(1) 7

42 U.S.C. §§ 12181 through 12189 1

42 U.S.C. § 12181(2) 10

42 U.S.C. § 12181(7) 10, 11

42 U.S.C. § 12182(a) 11

42 U.S.C. § 12182(b) 11, 12, 14

42 U.S.C. § 12183(a) 8, 10, 12, 21, 22

42 U.S.C. § 12186(b) 8

42 U.S.C. § 12188(a)(1) 18

42 U.S.C. § 12188(b)(1) 3, 30, 31

42 U.S.C. § 12188(b)(2) 30, 32, 33

42 U.S.C. § 12188(b)(5) 33

[Regulations]{.underline}:

28 C.F.R. Part 36 1, 8

28 C.F.R. Part 36, Appendix A 1, 8

28 C.F.R. Part 36, Appendix A, § 4.33.3 21

[Rules]{.underline}:

Fed. R. Civ. P. 12(b) 9

Fed. R. Civ. P. 56 9

[Legislative history]{.underline}:

H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. (1990) 13

H.R. Rep. 485, Part 3, 101st Cong., 2d Sess. (1990) 8

S. Rep. 116, 101st Cong., 1st Sess. 69 (1989) 23

[Other]{.underline}:

U.S. Department of Justice, Civil Rights Division, 15

> Public Access Section, [THE AMERICANS WITH DISABILITIES ACT Title III
> Technical Assistance Manual]{.underline}, Covering Public
> Accommodations and Commercial Facilities, November 1993, § III-5.1000

The United States filed this action under the Americans with
Disabilities Act (ADA) against Ellerbe Becket, Inc., an architectural
firm headquartered in Minneapolis. The complaint alleges that Ellerbe
has designed new sports arenas and stadiums in cities across the country
that fail to comply with title III of the ADA, 42 U.S.C. §§ 12181
through 12189, and the title III implementing regulation, 28 C.F.R. Part
36, including the ADA\'s Standards for Accessible Design, 28 C.F.R. Part
36, Appendix A (\"the Standards\"), the architectural requirements
applicable to new construction. In particular, the government alleges
that Ellerbe has repeatedly designed stadiums and arenas with wheelchair
seating locations that do not provide wheelchair users with lines of
sight to the floor or field that are comparable to those for other
spectators, as required by the Standards. The United States seeks a
civil penalty and an injunction compelling Ellerbe to comply with the
requirements of the ADA when designing stadiums and arenas in the
future.

Ellerbe has moved to dismiss, arguing chiefly that the ADA imposes no
responsibility on architects to design new facilities to be accessible
to individuals with disabilities. Ellerbe also contends, among other
things, that the requirement for \"compare­able\" lines of sight does not
mean that wheelchair users must be able to see what other spectators are
able to see. Rather, Ellerbe contends that despite the ADA it can
continue to design stadiums and arenas in which wheelchair users will be
able to see only the backs of people standing in front of them. Because
Ellerbe\'s positions cannot be squared with either the language or the
purpose of the ADA, its motion to dismiss should be denied.

**I. FACTUAL BACKGROUND**

**A. The United States\' investigations of Ellerbe**

The Department of Justice began investigating Ellerbe for violations of
title III of the ADA in August 1994, when the Department received a
complaint against the Rose Garden, an arena in Portland, Oregon, being
designed by Ellerbe. Among other things, the complaint alleged that
wheelchair seating locations in the arena were designed so that when
other patrons stood up, wheelchair users would be unable to see the
action on the floor. *See* Exhibit A. The Department soon received a
second complaint, against another arena being designed by Ellerbe \--
the Fleet Center, in Boston \-- which also alleged that wheelchair
seating locations did not provide lines of sight over standing
specta­tors. The Department opened a second investigation, and so
notified Ellerbe. *See* Exhibit B.[^1]

The Department\'s investigations of the Rose Garden and the Fleet Center
included review of architectural drawings for both arenas, and confirmed
that at both arenas wheelchair users would be unable to see when other
patrons stood. As a result of these findings, the Department decided
that it was appropriate to review the compliance of other arenas
designed by Ellerbe. *See* 42 U.S.C. § 12188(b)(1)(A)(i) (directing the
Attorney General to review the compliance of entities covered by title
III of the ADA). Accordingly, the Department reviewed architectural
drawings for other Ellerbe arenas, including the Gund Arena in
Cleveland, Ohio, the Corestates Center in Philadelphia, Pennsylvania,
(formerly known as the Spectrum II) and the Marine Midland Arena in
Buffalo, New York (formerly known as the Crossroads Arena). In each
case, the Department found that the arena had been designed with
wheelchair seating locations that would not provide wheelchair users
with lines of sight to the arena floor when other patrons stood.

On February 28, 1996, the Department wrote to Ellerbe\'s counsel to
describe the findings of the investigation. *See* Exhibit C. The
Department informed Ellerbe that it believed Ellerbe had engaged in a
pattern or practice of illegal discrimi­nation, and offered Ellerbe an
opportunity to negotiate a settle­ment before suit was filed. In the
event a settlement could not be reached, the Department advised that it
would file suit in the District of Minnesota, where Ellerbe is
headquartered. The United States and Ellerbe engaged in extensive
settlement discus­sions, but no settlement had been reached when the
Paralyzed Veterans of America filed an action in June 1996 in the United
States District Court for the District of Columbia, alleging that a new
arena planned for downtown Washington \-- the MCI Center, designed by
Ellerbe \-- failed to comply with the ADA\'s architectural requirements
in various ways, including a failure to provide wheelchair seating
locations with lines of sight over standing spectators. [Paralyzed
Veterans of America, et al. v. Ellerbe Becket Architects & Engineers,
P.C., et al.]{.underline}, (D.D.C. Civil Action No. 96-1354 (TFH)) (the
\"MCI Center\" case). PVA sought a preliminary injunction halting
construction of the MCI Center. Ellerbe moved to be dismissed from the
action.

The United States was granted permission to file an *amicus* brief
addressing the plaintiffs\' application for a preliminary injunction,
motions to dismiss by other defendants on various grounds, and
Ellerbe\'s motion to dismiss. The United States was not allowed to
participate in the oral argument on any of the pending motions.
Ellerbe\'s motion was granted, and Ellerbe was dismissed from the MCI
Center case on July 29, 1996. 945 F. Supp. 1 (D.D.C. 1996).[^2] After
Ellerbe was dismissed from the action, the United States and Ellerbe
resumed negotiations toward a resolution of this matter, but were unable
to reach an agree­ment. On October 10, 1996, the United States filed this
action.

**B. Other factual issues**

Although there has been no opportunity to conduct discovery in this
matter, the United States can offer some evidence contra­dicting certain
of Ellerbe\'s factual assertions. For instance, Ellerbe asserts that
while it designed the arenas identified in the United States\'
complaint, it did not construct them. *See* Ellerbe\'s Memorandum at 4.
While it may be true that Ellerbe has not served as a contractor for any
stadium or arena, that does not mean \-- and Ellerbe does not claim \--
that Ellerbe has not routinely been involved in the construction phase
of the stadiums and arenas it designs. To the contrary, it appears that
Ellerbe has provided \"construction administration\" or similar services
to its arena clients, services which continue throughout the
con­struction process. For instance, an index to Ellerbe\'s project file
for the Portland arena \-- an index provided to the United States by
Ellerbe in the course of the United States\' investiga­tion \-- indicates
that Ellerbe had substantial involvement in the construction of the Rose
Garden. *See* Exhibit D.[^3]

Ellerbe also asserts that in designing stadiums and arenas, it has
always endeavored in good faith to comply with all of the ADA\'s
architectural requirements, and that there is no evidence that it has
acted recklessly or willfully. *See* Ellerbe\'s Memorandum at 21-22;
Beckenbaugh Declaration ¶ 7. Despite this assertion, however, there is
such evidence. In his deposition in the MCI Center case, Ellerbe
architect Gordon Wood \-- the firm\'s vice president and technical
director \-- testified that he serves as an advisor to all of Ellerbe\'s
stadium and arena design teams, particularly with respect to issues of
ADA compliance. Wood Deposition (MCI Center case) at 10, 15 (*see*
Exhibit E).[^4] Mr. Wood acknowledged that he has known of the
Department\'s position since at least late 1994, and acknowledged his
understanding that the Department of Justice is responsible for
enforcing the ADA, and for providing interpretive assistance.
[Id]{.underline}. at 23. Mr. Wood testified, however, that he does not
consider the Department\'s position on lines of sight authoritative and
has \"chose\[n\] to disregard it.\" [Id]{.underline}. at 25. Indeed, he
did not make any effort to communicate the Department\'s position to the
MCI Center design team. [Id]{.underline}. Further, when Ellerbe learned
of the Department\'s position, it did not make its clients aware of that
position. [Id]{.underline}. at 34-36.[^5]

**II. THE ADA\'S REQUIREMENTS FOR NEW CONSTRUCTION**

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 chief purpose is 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.

Congress found that architectural barriers constituted one of the types
of discrimination \"continually encounter\[ed\]\" by individuals with
disabilities. 42 U.S.C. § 12101(a)(5). To redress this form of
discrimination, Congress mandated that all commercial facilities and
public accommodations completed after January 26, 1993, must be
\"readily accessible to and usable by\" individuals with disabilities.
42 U.S.C. § 12183(a). Congress intended strict adherence to the new
construction requirements so that, \"over time, access will be the rule
rather than the exception.\" H.R. Rep. 485, Part 3, 101st Cong., 2d
Sess. 63 (1990) (\"The ADA is geared to the future . . . . Thus, the
bill only requires modest expenditures to provide access in existing
facilities, while requiring [all]{.underline} new construction to be
accessible.\") (emphasis added). Congress required that all newly
constructed facilities be designed and constructed according to
architectural standards to be set by the Attorney General. 42 U.S.C. §§
12183(a), 12186(b). The Attorney General\'s architectural standards are
incorporated into the Department of Justice\'s regulation implementing
title III of the ADA, 28 C.F.R. Part 36, and are known as the Standards
for Accessible Design, 28 C.F.R. Part 36, Appendix A (\"the
Standards\"). Among other things \-- and as discussed in more detail
below (*see* *infra* at 21) \-- the Standards set requirements for the
number, size, location, and other attributes of wheelchair seating
locations for newly constructed stadiums and arenas. The United States\'
complaint alleges that Ellerbe has engaged in a pattern or practice of
designing new arenas with wheelchair locations that do not meet the
requirements of the Standards.

**III. ARGUMENT**

**A. The legal standard for granting a motion to dismiss.**

In considering a motion to dismiss, the court must construe the
complaint in the light most favorable to the plaintiff, and should not
grant the motion unless it is beyond doubt that the plaintiff can prove
no set of facts that would warrant relief. [Coleman v.
Watt]{.underline}, 40 F.3d 255, 258 (8th Cir. 1994); [Hamm v.
Groose]{.underline}, 15 F.3d 110, 112 (8th Cir. 1994).[^6] Thus,
Ellerbe\'s motion must be decided against the factual background alleged
in the United States\' complaint: Ellerbe has repeatedly designed new
stadiums and arenas which are not accessible to and usable by
individuals with disabilities, because wheelchair users in those
stadiums and arenas are not able to see what other spectators can see.
Indeed, nowhere in its motion to dismiss does Ellerbe claim that the
stadiums and arenas it has designed provide wheelchair users with lines
of sight over standing spectators. Nowhere does Ellerbe claim that
wheelchair users who attend events in its facilities can see what other
spectators can see. The facilities designed by Ellerbe \-- in Boston,
Philadelphia, Washington, Cleveland, Portland, and elsewhere \-- have
all been designed for different owners. It is Ellerbe that is the common
denominator among inaccessible arenas from coast to coast. Ellerbe
nonetheless contends that it should bear no responsibility for its
pattern or practice of designing facilities which effectively exclude
wheelchair users from the events held there.

**B. Architects who design buildings to be inaccessible to or unusable
by individuals with disabilities can be held liable under title III of
the ADA.**

*1. The ADA\'s new construction requirements are broadly drawn, and
apply to all parties involved in the design and construction of
inaccessible facilities.*

As discussed above, title III of the ADA requires new facilities to be
designed and constructed to be readily access­ible to and usable by
individuals with disabilities. 42 U.S.C. § 12183(a)(1). The requirement
applies to two categories of facilities: \"public accommodations\" and
\"commercial facilities.\" [Id]{.underline}. 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 category of public
accommodations, while still large, is not as broadly inclusive as
\"commercial facilities.\" 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).[^7]

Title III of the ADA, however, does not only set architect­tural
requirements for the design and construction of new facil­ities. It also
prohibits a variety of forms of discrimination in the day-to-day
operation of certain businesses. That is, in addition to the
requirements for new construction set out in section 303, section 302 of
the Act imposes on public accommoda­tions, but [not]{.underline} on
commercial facilities, various other non-discrimination obligations with
respect to their day-to-day operations. *See* 42 U.S.C. § 12182(a) and
(b).[^8]

Ellerbe\'s argument that the ADA does not cover architects rests
entirely on a cross-reference in section 303 to section 302(a). Section
303 provides, in pertinent part, 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). The reference to section 302(a) will not bear the
construction Ellerbe puts upon it.

It does violence to the statutory scheme to read the cross reference in
section 303 to mean that only those who have oblige­tions under 302 \--
the owners, lessors, lessees and operators of public accommodations \--
can be held liable for new construction violations under section 303.
Under that reading, the [only]{.underline} people who could be held
liable for design and construction vio­lations of [commercial
facilities]{.underline} would be those who own, lease, or operate
[public accommodations]{.underline}. For strictly commercial facil­ities
\-- many office buildings, for instance, do not contain places of public
accommodation \-- there is no party who would meet this definition and,
therefore, no party to be held account­able for ADA violations. Such a
result cannot be harmonized with the language in 303 that explicitly
includes \"commercial facili­ties\" within the scope of the new
construction requirements.[^9] Ellerbe does not explain either 1) how
its \"plain language\" reading of the statute can be squared with the
inclusion of commercial facilities in section 303, or 2) if they cannot
be squared, why this Court should adopt a reading of the statute which
eliminates an entire category of buildings from the coverage marked out
by Congress.[^10]

The most sensible reading of section 303\'s reference to section 302(a)
is that section 303 refers to section 302(a) only to indicate that the
failure to design and construct accessible facilities constitutes
another type of \"discrimination on the basis of disability,\" and
[not]{.underline} to identify the parties that may be held liable under
section 303. 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)).

Such a reading, moreover, is entirely consistent with the differing
characters of sections 302 and 303. As noted above, section 303 differs
from section 302 in that 302 defines a variety of prohibited activities
\-- imposition of discriminatory eligibility criteria, failure to modify
policies and practices, failure to provide auxiliary aids and services,
failure to remove architectural barriers, and others. *See* 42 U.S.C. §
12182(b)(1), (2); *supra* n.8. Because the nature of these prohibitions
varies so greatly, it is not clear from the prohibitions themselves who
is responsible for compliance, and a failure to specify who is
responsible would undoubtedly produce finger-pointing between parties
with connections to the facility. Accordingly, it made sense to
identify, for the variety of obligations imposed in section 302, what
parties were responsible for those obligations. Section 303, by
contrast, addresses only one category of activity: the design and
construction of inaccessible facilities. The parties responsible for
complying with section 303 are evident from the nature of the activity
itself: those who are involved in the design and construction of a new
facility. There is no need to further define \-- either to expand or to
limit \-- the category of responsible parties, because the definition of
the prohibited activity inherently carries with it an identification of
the responsible parties.[^11]

Ellerbe relies heavily on the opinion dismissing it from the MCI Center
case, [Paralyzed Veterans of America v. Ellerbe Becket Architects &
Engineers, P.C.]{.underline}, 945 F. Supp. 1 (D.D.C. 1996), the only
case to address this issue. That opinion, however, is not persuasive,
for the same reasons that Ellerbe\'s argument is not persuasive. For
instance, the decision does not explain why section 303, which plainly
applies to public accommodations [and]{.underline} commercial
facilities, should be limited to parties who own, lease, or operate
public accommodations. The opinion does not even acknowledge this
discrepancy, much less try to account for it. Rather, the court states
only that \"the limitation in § 302 to owners, operators, and lessors
also applies to § 303 and thereby excludes architects . . . .\"
[Id]{.underline}. at 2. But because section 302 applies only to owners,
operators, and lessors of [public accommodations]{.underline} and not to
commercial facilities at all, this analysis, as discussed above, leads
to the patently incorrect result of eliminating from section 303 any
meaningful coverage of commercial facilities. The correct reading is one
that gives full effect to both sections \-- interpreting the
cross-reference to 302 in section 303 to mean that a failure to design
and construct accessible facilities is merely an additional form of
discrimination to be included in section 302\'s definition of
discrimination.

*2. By specifically including the term \"design\" in section 303,
Congress clearly signalled its intent to bring those who design new
facilities \-- architects and other designers \-- within the scope of
section 303\'s coverage.*

The language of section 303 itself indicates that architects fall within
the scope of its coverage. By including the term \"design,\" Congress
clearly intended that those entities who design new facilities \--
architects, engineers, and other designers of all types \-- have
obligations under the ADA. Congress could have written this paragraph
without using the word \"design,\" addressing itself only to the end
result by making it illegal only to \"construct\" inaccessible
facilities. By including the design function 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, but also those parties who play a role
in the design of a building. Thus, section 303 is properly read to
prohibit designing an inaccessible facility as well as constructing an
inaccessible facility. The language applies to the entire process of
building a facility \-- the \"design and construction\" of a public
accommodation or commercial facility, and requires all parties involved
in that process to conform their involvement, whatever its scope, to the
requirements of the ADA.

Ellerbe argues that only those parties that both \"design
[and]{.underline} construct\" new facilities can be held liable under
section 303. Because Ellerbe is only the designer, the argument goes, it
cannot be held responsible for ADA violations at the arena since it is
not involved in the construction of the arenas. *See* Ellerbe\'s
Memorandum at 11-12. Initially, Ellerbe\'s argument fails as a factual
matter. As discussed above, *supra* at 5, Ellerbe provides services
which continue throughout construction of the facility. Moreover, as a
matter of law, Ellerbe\'s parsing of the language of section 303 creates
a large loophole. Under Ellerbe\'s proposed reading of section 303, so
long as a facility is [designed]{.underline} to be in compliance with
the ADA, the owner and contractor can freely depart from the designs
during construction and eliminate accessible features without violating
the ADA, because the building is not both designed [and]{.underline}
constructed in violation. Such a result would effectively nullify
section 303.[^12]

The [Paralyzed Veterans]{.underline} opinion does not address this
loophole. Rather the Court simply concludes that

> the phrase \"design and construct\" is distinctly conjunctive. It
> refers only to parties responsible for both functions, such as general
> contractors or facilities owners who hire the necessary design and
> construction experts for each project.

945 F. Supp. at 2. If this exclusive focus on those ultimately
responsible for the facility were correct, it would have made far more
sense for Congress to have omitted the word design from the statute
altogether, and simply to have made it illegal to construct an
inaccessible facility. Congress, however, did expressly include the term
\"design\" when describing the prohibited activities, and neither
Ellerbe nor the [Paralyzed Veterans]{.underline} decision explains how
its inclusion can be squared with their reading of the statute. It is
more faithful to the language of the statute, and better serves the
purposes of the Act, to read section 303\'s use of the conjunctive
\"and\" to make it unlawful to design an inaccessible facility as well
as to construct an inaccessible facility.

*3. Holding architects responsible for designing buildings that exclude
individuals with disabilities is consistent with the purposes of the
ADA.*

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.[^13] Architects play key roles in the design and
construction of new facilities, particularly in cases involving large
sports stadiums and arenas, where an owner relies heavily on architects,
engineers, contractors, and other building professionals 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
or she has entrusted the project are complying with the statute,
particular­ly if, as the evidence suggests Ellerbe has done, the
architect disregards the law or authoritative interpretations of it, or
fails to inform his client of the applicable requirements or
interpretations. *See* discussion *supra*, at 6-7. In most cases, owners
will not realistically be in a position to identify and prevent ADA
violations during the design and construction of the facility, and
errors will have to be addressed after construction is complete, when it
may be considerably more difficult and expensive to remedy ADA
violations.

In addition to architects and other design professionals, entities other
than those who own, operate, or lease the facility in question may exert
considerable influence or control over the design and construction of a
new facility. For instance, a franchisor of a chain of hotels or
restaurants may dictate or control the design plans for facilities in
its chain, but typically will not own or lease the facilities, and may
have too little control over the operations of the facilities after they
are built to be held to be \"operating\" the facilities within the
meaning of title III. Under Ellerbe\'s reading of the statute, such an
entity would have no responsibility to comply with the ADA, despite its
control over the design of the facility.

**C. In sports stadiums and arenas, where other spectators can be
expected to stand, wheelchair seating locations must provide wheelchair
users with lines of sight over standing spectators.**

*1. Title III of the ADA requires all new sports stadiums and arenas to
be readily accessible to and usable by individuals with disabilities.*

As discussed above (see pp. 7-8, *supra*), 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
and arenas, 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.

*2. 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 recognizes that most wheelchair
users cannot stand in order to see over others in front of them. 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.

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. 116, 101st
Cong., 1st Sess. 69 (1989). The central purpose of a sports stadium or
arena 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, music concerts, and others \-- spectators will stand
for much or all 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
sanction designs which relegate wheelchair users to looking at the backs
of the people in front of them during those periods is to diminish 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 only court to consider the issue \-- the [Paralyzed
Veterans]{.underline} court (the MCI Center case) \-- has come to
precisely this conclusion. In a bench ruling denying a defense motion
for summary judgment, the court ruled that the ADA does require sports
arenas to provide wheelchair users with lines of sight over standing
spectators.[^14] The court found that \"the ADA requires a higher degree
of accommodation\" than previously was required, and that the ADA is \"a
new remedial law adopted by the Congress of the United States to put
those who are disabled in as equal a position as possible with the
general public.\" Transcript of bench op. at 7, 12. The court added that
if the Justice Department\'s interpretation of the \"comparable\" lines
of sight requirement were not correct,

> there would be really no new requirements under the ADA, it seems to
> the Court, and that this new construction then could go along as other
> construction always has, which would simply not bring any relief to
> people in the plaintiffs\' position that I believe that the statute
> was meant to cover.

[Id]{.underline}. at 16-17. The court concluded that, as a matter of
law, \"the Americans with Disabilities Act does require such enhanced
sightlines at substantially all wheelchair locations in a new arena.\"
1996 WL 748420, \*1.

*3. The Department of Justice\'s interpretation of the ADA\'s
architectural requirements is entitled to deference.*

Significantly, in arguing that wheelchair users need not be able to see
over other patrons, Ellerbe nowhere argues that wheelchair users at the
arenas it has designed are actually able to see what other spectators
are able to see. Instead, Ellerbe argues only that the Department\'s
position with respect to the \"comparable\" lines of sight requirement
does not have the force of law and is not binding. *See* Ellerbe\'s
Memorandum at 18-21. Ellerbe is correct that the Department\'s
interpretations of title III of the ADA and the title III regulation do
not themselves have the force of law. It is well established, however,
that the courts must give substantial deference to an agency\'s
interpreta­tion of its own regulations. [Thomas Jefferson University v.
Shalala]{.underline}, 114 S. Ct. 2381, 2386 (1994) (internal quotes
omitted). This means, the 8th Circuit has held, that the agency\'s
inter­pretation \"must be given controlling weight unless plainly
erroneous or inconsistent with the regulation.\" [Board of Regents of
the University of Minnesota v. Shalala]{.underline}, 53 F.3d 940, 943
(8th Cir. 1995) (citing [Thomas Jefferson]{.underline}). The court added
that \"this broad deference is all the more warranted when, as here, the
regulation concerns a complex and highly technical regulatory program.\"
[Id]{.underline}. (internal brackets and quotation marks omitted). *See
also* [Wilkes v. Gomez]{.underline}, 32 F.3d 1324, 1329 (8th Cir. 1994)
(same).

Ellerbe contends that the Architectural and Transportation Barriers
Compliance Board is the authoritative agency with respect to the ADA\'s
architectural standards, and points to various statements by the Board
or its representatives suggesting that the Board differs with the
Department of Justice on the question of comparable lines of sight. The
[Paralyzed Veterans]{.underline} court, however, has already rejected
this argument. The court noted that the Board \"has declined to address
the issue of lines of sight over standing spectators,\" but added that
whatever the Board\'s treatment of that issue,

> it is clear that the Board is not the authoritative agency on this
> matter. Under the ADA, the Board is merely given the role of setting
> minimum guidelines for the Attorney General\'s regulations to follow.
> Nowhere is the Board listed as one of the agencies having primary
> responsibility for either enforcing the Act or for interpreting it; at
> most it has a supplementary role. . . .
>
> Instead, the Justice Department is the authoritative agency, and the
> \[Standards for Accessible Design\], not the \[Board\'s ADA
> Accessibility Guidelines\], are the authorita­tive guidelines.
> Therefore, it is the interpretation of the Department of Justice \--
> the agency with the authority to enact binding regulations and to
> enforce the Act \-- that shapes the meaning of the regulations.

[Paralyzed Veterans]{.underline}, 1996 WL 748420, \*2. (citation
omitted). The court found the Department of Justice\'s reading of the
comparable lines of sight requirement to be reasonable, and consistent
with the terms of the architectural standards and the Act itself.
[Id]{.underline}. at \*4. In addition, the Department\'s interpretation
does not

\"add new duties or rights to the statute, such that A\[dminis­trative\]
P\[rocedure\] A\[ct\] requirements are triggered.\" [Id]{.underline}.
\"Therefore,\" the court held, \"the interpretation outlined by the
Justice Department is entitled to deference from this Court.\"
[Id]{.underline}.[^15]

**D. The United States\' claim is properly before this Court.**

Raising an assortment of issues \-- forum shopping, preclu­sion, comity,
standing, ripeness, and the first-filed rule \-- Ellerbe argues that
this case is not properly before this Court, and should be dismissed.
None of Ellerbe\'s arguments has merit.

First, the United States is not forum shopping, or, as Ellerbe puts it,
\"\[h\]opping from circuit to circuit looking for a favorable forum.\"
Ellerbe\'s Memorandum at 16. Ellerbe ignores two facts. First, the
United States has filed only one action, and can hardly be accused of
\"hopping from circuit to circuit.\" Second, as discussed above, *see*
*supra* at 3, the United States informed Ellerbe in February 1996 of its
intent to bring an enforcement action [in this district, where Ellerbe
is headquartered]{.underline}. The government thus registered its intent
to sue, and its choice of forum, well before the Paralyzed Veterans
brought their action in Washington.

Raising issues of preclusion and comity, Ellerbe next contends that the
decision of the [Paralyzed Veterans]{.underline} should be binding, and
prevent this court from deciding the issue indepen­dently. The United
States, however, was not a party to, and is not bound by the judgment
dismissing Ellerbe from the MCI Center case. The United States
participated in that case only as an *amicus curiae*, and thus had only
a limited opportunity to be heard, and has no right or opportunity to
appeal the district court ruling. *See*, *e.g.,* [Newark Branch, NAACP
v. Town of Harrison]{.underline}, 940 F.2d 792, 808 (3d Cir. 1991)
(amicus has no right to review by appeal, and cannot request relief not
sought by the parties).[^16] Recognizing that \"\[p\]articipation as an
amicus curiae does not provide the requisite degree of control\" to
warrant binding the amicus with the judgment in the case, [Kerr-McGee
Chem. Corp. v. Hartigan]{.underline}, 816 F.2d 1177, 1181 (7th Cir.
1987), the courts have held that amici are not bound by the judgments in
the cases in which they participate. *See, e.g.,*
[Kerr-McGee]{.underline}, 816 F.2d at 1180-81, 1180-81 n.4; [Munoz v.
Imperial County]{.underline}, 667 F.2d 811, 816 (9th Cir.) (same),
*cert. denied*, 459 U.S. 825 (1982).

Further, actions brought by private parties do not bind the government.
As the 5th Circuit has explained, \"the United States will not be barred
from independent litigation by the failure of a private plaintiff,\"
because \"the United States has an interest in enforcing federal law
that is independent of any claims of private citizens.\" [United States
v. East Baton Rouge Parish School Board]{.underline}, 594 F.2d 56, 58
(5th Cir. 1979). \"\[A\]ny contrary rule would impose an onerous and
extensive burden upon the United States to monitor private litigation in
order to ensure that possible mishandling of a claim by a private
plaintiff could be corrected by intervention.\" [Id]{.underline}. *See
also* [EEOC v. Harris Chernin, Inc.]{.underline}, 10 F.3d 1286, 1291
(7th Cir. 1993) (EEOC\'s interests are broader than those of individuals
injured by discrimination; \"private litigants cannot adequately
represent the government\'s interest in enforcing the prohibitions of
federal statutes\"); [EEOC v. Kimberly-Clark Corp.]{.underline}, 511
F.2d 1352, 1361 (6th Cir.) (EEOC sues to vindicate the public interest,
which is broader than the interests of the individual parties in the
prior action), *cert. denied*, 423 U.S. 994 (1975).[^17]

And while comity is certainly important, the Supreme Court has
recognized that \"the government is often involved in litigating issues
of national significance where conservation of judicial resources is
less important than \`getting a second opinion.\'\" [United States v.
Mendoza]{.underline}, 464 U.S. 154, 158 (1984). The Court rejected the
attempt of a private party to collaterally estop the government from
relitigating an issue, because doing so

> would substantially thwart the development of important questions of
> law by freezing the first final decision rendered on a particular
> issue. Allowing only one final adjudication would deprive this Court
> of the benefit it receives from permitting several courts of appeals
> to explore a difficult question before this Court grants certiorari.

[Id]{.underline}. at 160.[^18]

Ellerbe\'s jurisdictional arguments are no more persuasive. Its
contention, for instance, that the United States does not have standing
to bring this action is really an argument that the United States has
failed to state a claim: Ellerbe\'s \"standing\" argument is that the
ADA does not require a line of sight over standing spectators, so that
there is no injury and therefore no standing. The argument has no
independent force, resting entirely on the question of the meaning of
the comparable lines of sight requirement. Similarly, what Ellerbe
labels a \"ripeness\" argument is really an attack on the ability of the
Attorney General to bring actions alleging a \"pattern or practice\" of
discrimination, as provided by title III of the ADA. *See* 42 U.S.C. §
12188(b)(1)(B)(i).[^19] Ellerbe argues that because no other court has
yet determined that an arena designed by Ellerbe violates the ADA, the
United States cannot bring an action alleging Ellerbe has engaged in a
pattern or practice of discrimination.[^20] Ellerbe\'s Memorandum at 17.
Ellerbe thus contends that the Attorney General cannot bring a pattern
or practice action until there is a judgment or finding in some other
action that the conduct at issue violates the statute. Ellerbe cites no
authority for this proposition, and neither the ADA nor the cases
contain such a requirement. *See, e.g.,* [International Bhd. of
Teamsters v. United States]{.underline}, 431 U.S. 324, 336, 336 n.16
(1977).[^21]

Lastly, the \"first-filed rule\" has no application here. As the cases
cited by Ellerbe make clear, that rule applies when one party files
multiple claims against the same defendant in different courts, or when
two parties each file claims against the other, and do so in different
courts. *See* [Orthmann v. Apple River Campground, Inc.]{.underline},
765 F.2d 119, 121 (8th Cir. 1985); [Northwest Airlines, Inc. v. American
Airlines, Inc.]{.underline}, 792 F. Supp. 655 (D. Minn. 1992). The
United States has filed only one action, and Ellerbe has filed no action
at all. Even if the rule applied, the only conclusion could be that this
is the \"first-filed\" action.

**E. This is an appropriate case for imposing a civil penalty and
granting injunctive relief.**

In addition to authorizing the court to grant equitable relief, title
III of the ADA authorizes the court, in cases brought by the Attorney
General, to vindicate the public interest by assessing a civil penalty
against an entity found to have violated the statute. 42 U.S.C. §
12188(b)(2)(C). When consid­ering whether to assess a civil penalty or
determining the amount of a penalty, the court must consider the
defendant\'s good faith. 42 U.S.C. § 12188(b)(5).[^22]

Ellerbe asserts that \"there is no evidence that Ellerbe willfully,
intentionally or recklessly disregarded the law,\" offering the
conclusory statement in the declaration of Thomas Beckenbaugh that
Ellerbe has made a good faith effort to comply with the ADA in designing
the arenas in question. *See* Ellerbe\'s Memorandum at 22; Beckenbaugh
Dec. ¶ 7. As the deposition testimony cited above shows, however, there
is already strong evidence that Ellerbe did willfully or recklessly
disregard the Department of Justice\'s interpretation of the comparable
lines of sight requirement. *See* *supra* pp. 6-7. Gordon Wood testified
twice that he knew of the Department\'s position, disagreed with it, and
disregarded it to the point of not bringing it to the attention of
Ellerbe\'s design teams. He and Mr. Allison also testified that Ellerbe
may not even have advised their clients of the Department\'s position.
Discovery may yield further evidence of a reckless or willful disregard
for the ADA.

Finally, Ellerbe argues that injunctive relief is not appro­priate here
because enjoining Ellerbe \"will not bind other design professionals\"
or other parties. Ellerbe\'s Memorandum at 22-23. The standard for
granting an injunction, however, does not include a requirement that it
be effective against the world; the ADA authorizes the court to grant
\"any equitable relief\" that the court considers appropriate, *see* 42
U.S.C. § 12188(b)(2)(A), and preventing further violations by this
defendant is sufficient reason to grant an injunction. *See* [Martin v.
Feilen]{.underline}, 965 F.2d 660, 672 (8th Cir. 1992) (\"serious
misconduct that violates statutory obligations is sufficient grounds for
a permanent injunction\" (*quoting* [Beck v. Levering]{.underline}, 947
F.2d 639, 641 (2d Cir. 1991), *cert. denied*, 504 U.S. 909 (1992))). To
the extent that other parties need to be deterred from designing and
constructing new arenas that do not comply with the ADA, they can be
deterred by imposing a substantial civil penalty on Ellerbe. As the
cases cited above point out, deterring misconduct by others is one of
the chief purposes of civil penalties. *See* n.22, *supra*.

**IV. CONCLUSION**

For the reasons stated above, the United States respectfully urges the
court to deny Ellerbe\'s motion to dismiss.

> Respectfully submitted,
>
> DEVAL L. PATRICK
>
> Assistant Attorney General
>
> Civil Rights Division
>
> [                       ]{.underline}
>
> JOAN A. MAGAGNA
>
> THOMAS M. CONTOIS
>
> KATHERINE M. NICHOLSON
>
> Attorneys
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-6014

ROBERT SMALL

Assistant U.S. Attorney

Minnesota Bar No. 10212X

234 United States Courthouse

110 South 4th Street

Minneapolis, Minnesota 55401

\(612\) 348-1500

Dated: January 13, 1997

**CERTIFICATE OF SERVICE**

I hereby certify that a true copy of the United States\' Memorandum in
Opposition to Defendant\'s Motion to Dismiss was served upon

Lewis J. Baker

Watt, Tieder & Hoffar, LLP

7929 Westpark Drive, Suite 400

McLean, Virginia 22102

attorney for defendant Ellerbe Becket, Inc., by hand delivery on January
13, 1997, and upon

Philip L. Bruner

Faegre & Benson LLP

2200 Norwest Center

90 South Seventh Street

Minneapolis, Minnesota 55402-3901

and

Vincent W. King

310 Fourth Avenue South, Suite 500

Minneapolis, Minnesota 55415

attorneys for defendant Ellerbe Becket, Inc.,

Richard C. Wall

McKenna & Cuneo, L.L.P.

1900 K Street, N.W.

Washington, D.C. 20006

attorney for *amici curiae* the American Institute of Architects and the
Associated General Contractors, and

Lawrence A. Moloney

Doherty, Rumble & Butler, P.A.

3500 Fifth Street Towers

150 South Fifth Street

Minneapolis, Minnesota 55402-4245

attorney for *amicus curiae* Building Owners and Managers Association,
International, by overnight common carrier Federal Express on January
13, 1997.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Thomas M. Contois
>
> U.S. Department of Justice
>
> Civil Rights Division
>
> Disability Rights Section
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-6014

[^1]: ^?^The Department also investigated the new Olympic Stadium in
    Atlanta, Georgia, a stadium which Ellerbe helped to design. As
    Ellerbe correctly points out in its brief, *see* Ellerbe\'s
    Memorandum in Support of Defendant\'s Motion to Dismiss at 4
    (hereinafter \"Ellerbe\'s Memorandum\"), the Olympic Stadium
    ultimately turned out to be most accessible stadium in the United
    States. More than 95% of the wheelchair locations in that stadium
    provide lines of sight over standing spectators. However, providing
    lines of sight over standing spectators was a central subject of the
    negotiations between the Department and the owners and designers of
    the stadium, and Ellerbe\'s effort to take credit for the degree of
    accessibility of the stadium must be tempered by a recognition that
    the stadium was designed and constructed under the close scrutiny of
    the Department of Justice, and the threat of legal action to compel
    compliance with the ADA.

[^2]: ^?^As discussed more fully below, the MCI Center court ultimately
    ruled that the arena was designed in violation of the ADA because it
    fails to provide wheelchair seating locations with lines of sight
    over standing spectators. *See* *infra* at 23-24.

[^3]: ^?^It appears from the index that Ellerbe corresponded, met with,
    and talked on the phone with the arena\'s contractors and
    subcontractors (Headings 4b, 4c, 4e); received and responded to
    \"requests for information\" (RFI) from contractors (Heading 4g);
    received and reviewed shop drawings and other submittals from
    contractors and subcontractors (Heading 4d); received and processed
    change orders (Heading 5a); conducted various field tests and made
    reports of its findings (Headings 6a, 6c, 6d, 6f); and maintained a
    \"construction diary\" (Heading 6b).

[^4]: ^?^Steven Allison, Ellerbe\'s senior project architect for the
    Rose Garden arena, confirmed the importance of Mr. Wood\'s role in
    Ellerbe\'s compliance with the ADA. Mr. Allison testified in his
    deposition in [Independent Living Resources, et al. v. Oregon Arena
    Corporation]{.underline}, (D. Ore. Civil Action No. 95-84-AS) (\"the
    Rose Garden case\"), that if there are questions about compliance
    with the ADA at Ellerbe, \"one of the people we talk to is Gordon
    Wood.\" *See* Allison Deposition (Rose Garden case) at 8, 10, 28
    (excerpt provided as Exhibit F). He added that Mr. Wood, as the
    office\'s technical director, \"keeps himself informed of \[ADA\]
    issues, and as he knows of information he disseminates it to the
    project teams.\" [Id]{.underline}. at 29-30. If there were a
    question about ADA compliance issues, they would discuss it
    in-house, and Mr. Wood \"would certainly be involved.\"
    [Id]{.underline}. at 36.

[^5]: ^?^Mr. Wood gave similar testimony in his deposition in the Rose
    Garden case, again stating that he was aware of the Department\'s
    position, but that he does not believe the ADA architectural
    standards require a line of sight over standing spectators, and that
    the Department\'s view is \"just their opinion.\" Wood Deposition
    (Rose Garden case) at 34-36 (*see* Exhibit G). As with the MCI
    Center, he did not inform the Rose Garden design team of the
    Department\'s position. [Id]{.underline}. Similarly, Mr. Allison,
    the senior project architect for the Rose Garden, added that
    \"\[i\]nterpretations and requirements to me aren\'t necessarily the
    same thing,\" and while they would certainly inform their clients of
    \"requirements,\" he was not sure whether they would inform a client
    of an \"interpretation.\" Allison Deposition (Rose Garden case) at
    61-62 (*see* Exhibit F).

[^6]: ^?^In the event that the Court treats Ellerbe\'s motion to dismiss
    as a motion for summary judgment (pursuant to Fed. R. Civ. P. 12(b)
    and 56), the standard is the same: the court should construe all
    evidence in favor of the non-movant, and grant the motion only if
    there is no genuine issue of material fact, and the moving party is
    entitled to judgment as a matter of law. [RSBI Aerospace, Inc. v.
    Affiliated FM Insurance Co.]{.underline}, 49 F.3d 399, 401 (8th Cir.
    1995) (citing [Anderson v. Liberty Lobby]{.underline}, 477 U.S. 242,
    247, 255 (1986)).

[^7]: ^?^Many facilities meet both definitions. Each of the sports
    stadiums and arenas designed by Ellerbe, for instance, is a
    non-residential facility whose operations will affect commerce, and
    thus each is a \"commercial facility.\" In addition, each stadium or
    arena is a \"public accommodation,\" as each falls within at least
    two of the statute\'s categories of public accommodation: each is a
    \"stadium, or other place of exhibition or entertain­ment,\" within
    the meaning of section 301(7)(C), and each 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).

[^8]: ^?^Title III\'s general mandate prohibiting discrimination against
    individuals with disabilities in public accommodations 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, 302(b) generally makes it
    unlawful for public accommodations to 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). Section 302(b) also prohibits
    several specific forms of discrimination, including, for instance,
    failing to provide auxiliary aids or services \-- such as assistive
    listening devices, sign language interpreters, documents in Braille,
    and so on \-- and failing to remove architectural barriers to
    access, when doing either is necessary to ensure that individuals
    with disabilities are not excluded from or denied services by a
    public accommodation. *See* 42 U.S.C. § 12182(b)(2)(A).

[^9]: ^?^The legislative history is clear that section 303 was intended
    to cover [all]{.underline} commercial facilities. As the report of
    the House Committee on Education and Labor explains:

    > In many situations, the new construction will be covered as a
    > \"public accommodation,\" because in many situations it will
    > already be known for what business the facility will be used. The
    > Act also includes, however, the phrase \"comercial facilities,\"
    > to ensure that [all]{.underline} newly constructed commercial
    > facilities will be constructed in an accessible manner. That is,
    > the use of the term \"commercial facilities\" is designed to cover
    > those structures that are not included within the specific
    > definition of \"public accommodation.\"

    H.R. Rep. 485, Part 2, 101st Cong., 2d Sess. 116 (1990) (emphasis in
    original).

[^10]: ^?^In addition, limiting section 303 coverage to those parties
    identified in section 302 makes no sense from a practical
    perspective. While parties who own, operate, or lease public
    accommodations are the obvious choice for the obligations related to
    the day to day operation of the businesses imposed by section 302,
    *see* n.8, *supra*, parties who lease or operate a facility
    frequently will have nothing whatever to do with the initial design
    and construction of the facility. Ellerbe does not explain why
    Congress would choose those parties to carry out the ADA\'s new
    construction requirements.

[^11]: ^?^Ellerbe repeatedly insists that its reading of section 303 is
    compelled by the \"plain language\" of the statute. *See* Ellerbe\'s
    Memorandum at 5, 7, 8, 11, 13. At the same time, how­ever, Ellerbe
    advances an argument which departs from the \"plain language\" of
    the statute. In urging that the statute must be construed to give
    effect to all of its terms, Ellerbe posits that \"entities liable
    for discrimination as identified in § 302(a) are \`persons who own,
    lease (or lease to) or operate\' places of public accommodation [or
    commercial facilities]{.underline}.\" Ellerbe\'s Memo­randum at 9
    (emphasis added). The words \"commercial facilities\" do not appear
    anywhere in section 302. Without mentioning it, Ellerbe thus
    suggests expanding the \"plain language\" of section 302, to bring
    other parties within the scope of section 302, and disguise the
    difficulty presented by its approach.

    While Ellerbe does not acknowledge it, it is possible to argue that
    title III is ambiguous as to who is responsible for complying with
    section 303. That is, because section 303 itself does not identify
    who the responsible parties are, and because the identification of
    parties contained in section 302 is limited in scope in a way that
    makes it incompatible with section 303, there is no clear answer to
    the question of who is responsible for compliance with section 303.
    In such a case, of course, the interpretation of the statute by the
    agency entrusted with enforcement of the statute is entitled to
    substantial deference. [Chevron, U.S.A., Inc. v. Natural Resources
    Defense Council, Inc.]{.underline}, 467 U.S. 837, 843 (1984) (where
    Congress has not directly addressed the precise question at issue,
    \"considerable weight should be accorded to an executive
    department\'s construction of a statutory scheme it is entrusted to
    administer\").

    As the agency charged with enforcement of title III of the ADA, the
    Department of Justice has consistently taken the position that all
    parties involved in the design and construction of new facilities
    must conform their involvement, whatever its scope, to the
    requirements of the ADA. *See, e.g.,* U.S. Department of Justice,
    Civil Rights Division, Public Access Section, [THE AMERICANS WITH
    DISABILITIES ACT Title III Technical Assistance Manual]{.underline},
    Covering Public Accommodations and Commercial Facilities, November
    1993, § III-5.1000 at 46. *See* Exhibit H.

[^12]: ^?^Further support comes from one of title III\'s remedial
    provisions, which allows private actions to be brought
    [before]{.underline} a new facility is built inaccessibly. The Act
    specifically provides that an action may be brought by any person
    \"who has reasonable grounds for believing that such person is about
    to be subjected to discrimination in violation of section \[303\].\"
    42 U.S.C. § 12188(a)(1). That Congress authorized actions against
    buildings before they are completed \-- based, presumably, on
    nothing more than the designs for the facility \-- further
    demonstrates the importance Congress attached to insuring that those
    who design new facilities do so in compliance with the ADA.

[^13]: ^?^*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\"). \"\[R\]emedial
    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).

[^14]: ^?^[Paralyzed Veterans of America v. Ellerbe Becket Architects
    and Engineers, P.C.]{.underline}, No. 96-1354 (TFH), (D.D.C. Oct.
    21, 1996) (cited herein as \"transcript of bench op.\") (copy
    provided as Exhibit I). On December 20, 1996, the court issued a
    written opinion \"as an additional explanation of its bench
    opinion.\" [Paralyzed Veterans of America v. Ellerbe Becket
    Architects and Engineers, P.C.]{.underline}, No. 96-1534 (TFH), 1996
    WL 748420, at \*1 (D.D.C. Dec. 20, 1996).

[^15]: ^?^Other courts have also deferred to the Department of
    Justice\'s interpretations of its ADA regulations. In [Fiedler v.
    American Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35 (D.D.C.
    1994), the court resolved a dispute over the meaning of a provision
    in the Standards by relying on the Department of Justice\'s
    interpreta­tion in its Technical Assistance Manual for title III. 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)).

    *See also* [Ferguson v. City of Phoenix]{.underline}, 931 F. Supp.
    688 (D. Ariz. 1996) (deferring to the Department\'s Technical
    Assistance Manual for title II of the ADA (which applies to state
    and local governments) with respect to the requirements for making
    911 emergency systems accessible to individuals with hearing
    impair­ments); [Innovative Health Sys. v. City of White
    Plains]{.underline}, 931 F. Supp 222 (S.D.N.Y. 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 (copy provided as Exhibit J) (Attorney
    General\'s interpretations of the title III regulations are entitled
    to substantial deference). *Cf.* [Pinnock v. International House of
    Pancakes]{.underline}, 844 F.Supp. 574 (S.D. Cal. 1993), *cert.
    denied*, 114 S. Ct. 2726 (1994) (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).

    Similarly, the 8th Circuit has relied on the EEOC\'s Techni­cal
    Assistance Manual in interpreting title I of the ADA (governing
    employment discrimination). *See* [Benson v. Northwest Airlines,
    Inc.]{.underline}, 62 F.3d 1108, 1112, 1113, 1114 (8th Cir. 1995).

[^16]: ^?^Even the authority cited by Ellerbe recognizes that the right
    to appeal is one of the crucial aspects of being a party, justifying
    preclusion of relitigation of the same question by a party. *See*
    Ellerbe\'s Memorandum at 15-16 (citing Weis, J., concurring in
    [Goodman\'s Furn. Co. v. United States Postal Serv.]{.underline},
    561 F.2d 462, 465 (3d Cir. 1977)).

[^17]: ^?^Ellerbe mistakenly relies on [Tyus v. Schoemehl]{.underline},
    93 F.3d 449 (8th Cir. 1996). *See* Ellerbe\'s Memorandum at 14 n.6.
    In [Tyus]{.underline} the 8th Circuit held that a prior action under
    the Voting Rights Act brought by private plaintiffs would bar the
    current action by another group of private plaintiffs, on a theory
    of \"virtual representation.\" The [Tyus]{.underline} court,
    however, carefully limited its holding, ruling that the doctrine
    would apply \"only when it finds the existence of some special
    relationship between the parties justifying preclusion.\"
    [Id]{.underline}. at 455. Ellerbe has not alleged, and cannot show,
    that there is any such relationship between the Paralyzed Veterans
    and the United States. Moreover, as discussed in the text, the
    federal courts have uniformly held that the United States has a
    special, independent interest in enforcement of federal law, an
    interest that cannot be represented by a private party. *See, e.g.,*
    [Harris Chernin]{.underline}, 10 F.3d at 1291 (no privity between
    private party and EEOC such that private party\'s claim for relief
    under title VII would bar EEOC from bringing action seeking
    injunction to prevent further violations).

[^18]: ^?^Ellerbe attempts to distinguish [Mendoza]{.underline} by
    arguing that since parties other than the United States can bring
    actions under title III, preventing the government from going
    forward will not thwart the development of the case law. Ellerbe\'s
    Memorandum at 16 n.7. Ellerbe does not explain, however, why a
    private party should be allowed to proceed with an action, but not
    the Attorney General \-- the officer charged by Congress with
    enforcing the statute. This discrepancy is particularly problematic
    given that private parties cannot bring the same kinds of actions
    under title III that the Attorney General can: only the Attorney
    General can seek compensatory damages for persons aggrieved by
    violations of the statute, and only the Attorney General can seek
    civil penalties against wrongdoers. *See* 42 U.S.C. §
    12188(b)(2)(B), (C). Moreover, only the Attorney General has
    authority to bring actions (like this one) to address a pattern or
    practice of discrimination, and secure the broader relief available
    in such actions. *See* 42 U.S.C. § 12188(b)(1).

[^19]: ^?^Ellerbe errs when it characterizes this action as one in which
    \"DOJ alleges . . . that Ellerbe failed to design five facilities\"
    with comparable lines of sight. Ellerbe\'s Memorandum at 17. This
    action alleges that Ellerbe has engaged in a pattern or practice of
    illegal discrimination; the five facilities identified in paragraph
    9 of the Complaint are only illustrative examples of Ellerbe\'s
    pattern of conduct.

    There is no question that United States\' pattern or practice action
    meets traditional ripeness requirements. *See, e.g.,* [In re
    Workers\' Compensation Refund]{.underline}, 46 F.3d 813, 821 (8th
    Cir. 1995) (determining whether case is ripe requires consideration
    of fitness of issues for judicial decision and hardship to parties
    of withholding court consideration). Ellerbe does not deny that it
    has routinely designed arenas to have wheelchair locations that do
    not provide lines of sight over standing spectators, including the
    arenas identified in the Complaint. Nor does Ellerbe deny that it
    will continue to design stadiums and arenas in the future, or
    suggest that it has changed or will change its practice of providing
    wheelchair locations without lines of sight over standing
    spectators.

[^20]: ^?^In any case, the factual predicate for Ellerbe\'s \"ripeness\"
    argument is no longer true. On December 20, 1996, the [Paralyzed
    Veterans]{.underline} court ruled that the design for the MCI Center
    violates the ADA, and ordered the arena to be redesigned. [Paralyzed
    Veterans of America v. Ellerbe Becket Architects & Engineers,
    P.C.]{.underline}, No. 96-1354 (TFH), 1996 WL 748416 (D.D.C. Dec.
    20, 1996).

[^21]: ^?^It is important to note that, with respect to the relief
    sought, there is no overlap between this action and the other
    actions involving arenas designed by Ellerbe. The United States does
    not seek any relief with respect to the arenas involved in the other
    actions; the only injunctive relief sought here involves stadiums
    and arenas designed after the filing of this action. Also, because
    only the Attorney General can seek a civil penalty, and the United
    States is not a party to any of the other actions, this is the only
    action in which such a penalty might be assessed. *See* 42 U.S.C. §
    12188(b)(2) (court may assess civil penalty in action brought by
    Attorney General).

[^22]: ^?^Civil penalties serve two purposes: 1) to punish wrongful
    conduct, [Tull v. United States]{.underline}, 481 U.S. 412, 422 n.7
    (1987); [United States v. Balistrieri]{.underline}, 981 F.2d 916,
    936 (7th Cir. 1992), and 2) to deter other potential violators.
    [United States v. ITT Continental Baking Co.]{.underline}, 420 U.S.
    223, 231, 232-33 (1975); [United States v. Reader\'s Digest Ass\'n,
    Inc.]{.underline}, 662 F.2d 955, 966-67 (3d Cir. 1981). Thus, a
    civil penalty must not be so small as to be an acceptable cost of
    doing business, as that would nullify its effectiveness in punishing
    wrongdoing, and in deterring illegal conduct. [ITT Continental
    Baking]{.underline}, 420 U.S. at 231-32; [Reader\'s Digest
    Ass\'n]{.underline}, 662 F.2d at 966-67, 967 n.16.