Number range CHAPTER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA, §

§

Plaintiff § CIVIL ACTION NO.1:99CV-705

§

V. § Hon. Donald C. Nugent

§

CINEMARK USA, INC., § PLAINTIFF UNITED STATES'

§ BRIEF IN OPPOSITION TO

Defendant. § DEFENDANT'S MOTION FOR

§ SUMMARY JUDGMENT

§

§

PLAINTIFF UNITED STATES' BRIEF IN OPPOSITION TO

[DEFENDANT'S MOTION FOR SUMMARY JUDGMENT]{.underline}

Table of Contents

Number range CHAPTER[Cases]{.underline}

American Frozen Food Inst. v. United States, 855 F. Supp. 388 (Ct. Int'l
Tr. 1994) 19

American Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106
(D.C. Cir. 1993) 9, 12-14,17, 18, 20

American Postal Workers Union v. United States Postal Serv., 707 F.2d
548 (D.C. Cir. 1983) 17

Caruso v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730 (3d
Cir. 1999) 12

Federal Express v. United States Postal Serv., 151 F.3d 536 (6^th^ Cir.
1998) 11

Friedrich v. Secretary of Health & Human Servs., 894 F.2d 829 (6th Cir.
1990) 8, 9, 13

Grider v. Cavazos, 911 F.2d 1158 (5th Cir. 1990) 5

Heckler v. Community Health Services, 467 U.S. 51 (1984) 7

Hoctor v. United States Dep't of Agric., 82 F.3d 165 (7^th^ Cir. 1996)
17, 19, 20

Lara v. Cinemark USA, 1998 WL 1048497, (W.D. Tex. Aug. 21, 1998) 4, 10,
19

National Family Planning & Reproductive Health Ass'n v. Sullivan, 979
F.2d 227 (D.C. Cir. 1992) 14, 19

Orengo Caraballo v. Reich, 11 F.3d 186 (D.C. Cir. 1993) 8, 14

Paralyzed Veterans v. D.C. Arena, 117 F.3d 579 (D.C. Cir. 1997) 10, 12

Phillips Petroleum Co. v. Johnson, 22 F.3d 616 (5^th^ Cir. 1994) 14

Ryder Truck Lines v. United States, 716 F.2d 1369 (11th Cir. 1983) 18

Schweiker v. Hansen, 450 U.S. 785 (1981) 7

Shalala v. Guernsey Mem. Hosp., 514 U.S. 87 (1995) 7, 8, 14, 15, 19

Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28 (3d Cir. 1995)
11

St. Francis Health Care Centre v. Shalala, 10 F. Supp. 2d 887 (N.D. Ohio
1998) 20

State of Ohio Dep't of Human Servs. v. United States Dep't of Health &
Human Servs., 862 F.2d 1228 (6^th^ Cir. 1988) 13

Truckers United for Safety v. FHA, 139 F.3d 934 (D.C. Cir. 1998) 13

Warder v. Shalala, 149 F.3d 73 (1st Cir. 1998) 14

Your Home Visiting Nurse Servs. v. Secretary of Health and Human Servs.,
132 F.3d 1135 (6th Cir. 1997), aff\'d, 525 U.S. 449 (1999) 8

[Statutes, Regulations and Rules]{.underline}

28 C.F.R. Part 36 App. A, § 4.33.3 passim

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (1996) passim

Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 passim

[Other Authority]{.underline}

Attorney General\'s Manual on the Administrative Procedure Act (1947) 18

Robert A. Anthony, "Interpretive Rules, Legislative Rules and Spurious
Rules: Lifting the Smog," 8 Admin. L.J. Am. U. 1 (1994) 9, 18

Webster\'s Ninth New Collegiate Dictionary (1990) 5

I. **PRELIMINARY STATEMENT**

The Americans with Disabilities Act ("ADA") is a landmark civil rights
law that requires that buildings and facilities be accessible to and
usable by people with disabilities. The Defendant, Cinemark USA
("Cinemark"), owns and operates stadium-style movie theaters that, for
individuals who use wheelchairs, are not accessible. Although Cinemark
trumpets stadium-style seating as a major advantage for viewers and a
major advance for the theater industry, it fails to provide wheelchair
users with a means to sit in the stadium portion of its theaters,
instead relegating such individuals to far less desirable seats on the
floor of the theater. By filing this case, the United States is asking
this Court to end that practice.

To date, however, Cinemark has chosen not to attempt to defend itself on
the merits. Instead, it has raised a counterclaim, and now has filed
this motion, asserting not that its theaters provide wheelchair users
with stadium-style seating, but that under current regulations the
Department of Justice is precluded from requiring that equal treatment.
Specifically, Cinemark alleges that a regulation requiring it to provide
wheelchair users with "lines of sight comparable" to those provided
members of the general public cannot be interpreted to mean that
wheelchair users should be provided with similar sight lines as other
theater patrons. To enforce that interpretation, Cinemark says, would
require a new regulation. The Department of Justice respectfully
disagrees.

The Department of Justice has the statutory responsibility to enforce
the ADA and myriad other federal statutes and regulations; to get that
job done, it must be able to take a position as to the meaning of the
statutes and the regulations it interprets. The Administrative Procedure
Act, by exempting interpretations from notice and comment requirements,
explicitly allows and encourages such action. Whether or not the
Department of Justice's legal interpretation is permissible and correct
--- and that is the ultimate issue for the Court to decide in this case
--- putting it forward is a required exercise of the Department of
Justice's delegated authority, not a violation of law. To grant
Cinemark's motion would hamper severely the Department of Justice's
ability to enforce the ADA or other federal statutes and regulations.
Cinemark's motion should be denied, and the Court should proceed to the
important questions this case presents.

**II. ISSUE TO BE DECIDED**

Whether the Department of Justice's interpretation of its own regulation
as set forth in an amicus brief is an "interpretive rule" exempt from
the Administrative Procedure Act's notice and comment requirements.

**III. STATUTORY AND FACTUAL BACKGROUND**

> **A. The Americans With Disabilities Act**

The ADA is a comprehensive federal civil rights statute established to
protect the rights of the disabled. Title III of the ADA requires 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. 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 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 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 \... When the
> seating capacity exceeds 300, wheelchair spaces shall be provided in
> more than one location.
>
> EXCEPTION: Accessible viewing positions may be clustered for
> bleachers, balconies, and other areas having sight lines that require
> slopes of greater than 5 percent. quivalent accessible viewing
> positions may be located on levels having accessible egress.

28 C.F.R. Part 36 App. A, § 4.33.3. In particular, the dispute in this
case is focused on the meaning of the requirement that wheelchair
locations be provided "lines of sight comparable to those for members of
the general public." The language of this section has not changed since
the regulations implementing the ADA were effective. What *has* changed
dramatically is the movie theater industry's standard design.
[See]{.underline} Cinemark Exh. B ¶ 4; Exh. D ¶ 11.

> **B. Stadium-Style Movie Theaters**

In 1995, four years after promulgation of Standard 4.33.3, Cinemark
began operating stadium-style movie theaters. [See]{.underline} Cinemark
Exh. B ¶ 4. Stadium-style seating, as the name suggests, has the look
and feel of a sports stadium. In Cinemark's stadium-style theaters
seating is placed on level tiers with each row/tier elevated
approximately 16 inches above the row/tier immediately ahead.. While
traditional-style seating is situated on a sloped floor, stadium-style
tiers are accessed by stepped, rather than sloped, aisles. Thus, the
stadium-style theater design, as described by Cinemark, "eliminates
virtually all obstructions to sight lines caused by lack of visual
clearance over patrons seated immediately in front of any particular
seat." [Id.]{.underline} In other words, viewers in stadium seating have
sight lines that are far superior than those found in traditional movie
theater seating. As Cinemark admits, however, wheelchair users are
denied access to the stadium portion of the theater and its enhanced
sight lines that are unobstructed, and are relegated to the front of the
theater, in traditional seating that is much closer to the screen
(directly in front of and below it) and not elevated off the floor.
[Id.]{.underline} ¶ 5.[^1]

Long before the challenged Department of Justice actions at issue, and
indeed even prior to the commencement of the Department of Justice's
investigation of Cinemark's theaters, individuals in wheelchairs and
disability advocacy groups complained to Cinemark about the wheelchair
placements in its stadium-style theaters, and at least one group of
plaintiffs filed a lawsuit claiming that those placements violate the
ADA. [Id.]{.underline} ¶¶ 7-9. In that lawsuit, Cinemark's El Paso
stadium-style theater was found to violate Title III of the ADA.
[See]{.underline} [Lara v. Cinemark USA]{.underline}, 1998 WL 1048497,
\*2 (W.D. Tex. Aug. 21, 1998). The Court concluded that Cinemark's
design fails to provide wheelchair users lines of sight that are
comparable, instead forcing them to choose between sitting in
craned-neck discomfort in the front of the theater (the \"worst seats in
the house\") or foregoing movies. [Id.]{.underline} Most of Cinemark's
auditoria across the country use designs that are almost identical to
those challenged in [Lara]{.underline}. [See]{.underline} Cinemark Exh.
B ¶ 5.

**C. Department of Justice Actions Relating to Standard 4.33.3**

In July 1998, shortly before the court issued its judgement in
[Lara]{.underline}, the United States filed an amicus brief in that case
offering its interpretation of Standard 4.33.3 as applied to the
stadium-style theaters in dispute. [See]{.underline} Cinemark Exh.
M.[^2] Cinemark describes this brief as \"final agency rule concerning
the placement of wheelchair seating in areas of public assembly.\"
Cinemark Br.at 10. [See also]{.underline} [id.]{.underline} at 10-20
(referring to brief as \"[Lara]{.underline} rule\"). The brief does not
purport to be a rule, however, and Cinemark\'s characterization assumes
that the legal arguments it advances in this motion will prevail.[^3]
Nor does the [Lara]{.underline} brief purport to\"create\[\]new
construction requirements\" for stadium-style theaters.
[See]{.underline} Cinemark Br. at 10. Instead, the operative portion of
that brief reads as follows:

> 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 (5th 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]{.underline}; [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 that of members of the general
> public. 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.

[See]{.underline} Cinemark Exh. M at 8-9. Notably, nowhere in the
[Lara]{.underline} brief or anywhere else did the Department of Justice
say that wheelchair locations "must take into account certain viewing
angle 'discomfort thresholds,'" [see]{.underline} Cinemark Br. at 10,
let alone "a 'discomfort threshold' of thirty-five degrees as the
maximum for viewing positions." [Id.]{.underline} at 15.[^4] Indeed, the
[Lara]{.underline} brief does not urge the court to adopt any required
minimum or maximum fixed angle, let alone an angle of thirty-five
degrees. [See]{.underline} Cinemark Exh. M. The regulatory requirement
for "lines of sight comparable" instead requires in every case a
comparison between lines of sight for wheelchair users and lines of
sight for the rest of the public. [See]{.underline} Cinemark Exh. P at 1
(fixed measurement "would conflict with the relevant language of the ADA
and its implementing regulation").

Prior and subsequent to the filing of the [Lara]{.underline} brief, the
Department of Justice has engaged in settlement negotiations with
various theater owners in which the Department of Justice has attempted
to enforce Standard 4.33.3, consistent with its interpretation as set
forth above.[^5]. [See]{.underline}, [e.g.]{.underline}, Cinemark Exhs.
P, R. No evidence is presented, however, nor is there any, that the
Department of Justice has made any official pronouncements on Standard
4.33.3 that interpret that regulation differently than in the
[Lara]{.underline} brief as applied to stadium-style theaters.[^6]

# IV. ARGUMENT

> **A. The Interpretation of Standard 4.33.3 in the Lara Brief is a
> \"Quintessential Example\" of an Interpretive Rule Exempt from Notice
> and Comment Requirements**

Under the APA, notice-and-comment rulemaking is not required for
\"inter­pretative rules, general statements of policy, or rules of agency
organization, proce­dure, or practice.\" 5 U.S.C. 553(b)(A).[^7]
Interpretive rules are those rules or statements that are \"issued by an
agency to advise the public of the agency\'s construction of the
statutes and rules which it administers.\" [Shalala v. Guernsey Mem.
Hosp.]{.underline}, 514 U.S. 87, 99 (1995) (internal quotation marks
omitted). As such, interpretive rules \"explain\[\] what the more
general terms of the Act and regulations already provide.\" [Your Home
Visiting Nurse Servs. v. Secretary of Health and Human
Servs.]{.underline}, 132 F.3d 1135, 1139 (6th Cir. 1997),
[aff\'d]{.underline}, 525 U.S. 449 (1999) (internal quotation marks
omitted). Thus, although distinguishing interpretive rules from other
agency actions has sometimes been described as a difficult process, the
most basic truth about an interpretive rule is that it is one that
\"states what the administrative agency thinks the statute means.\"
[Friedrich v. Secretary of Health & Human Servs.]{.underline}, 894 F.2d
829, 834 (6th Cir. 1990) (citation omitted).

The agency action at issue here is the [Lara]{.underline} brief,[^8] in
which the Department of Justice explicitly stated that the purpose of
the brief was to "provide the Court with the United States'
interpretation" of the ADA and Standard 4.33.3. Cinemark Exh. M at 2.
Furthermore, the most important part of the brief was a statement
interpreting the phrase "lines of sight comparable," and in particular
defining the word "comparable," in Standard 4.33.3 as applied to
stadium-style theaters. Cinemark Exh. M at 8. Classifying this brief as
interpretive is simple. An interpretation of generally applicable
regulatory language (Standard 4.33.3) to a particular set of facts
(stadium-style theaters) is exactly the type of agency action that this
Circuit has said cannot be determined to be a legislative rule requiring
notice and comment. [See]{.underline} [Friedrich]{.underline}, 894 F.2d
at 837; [see also]{.underline} [Guernsey Mem. Hosp.]{.underline}, 514
U.S. at 99. Instead, it is a statement seeking to interpret a regulatory
provision --- \"the quintessential example of an interpretive rule.\"
[Orengo Caraballo v. Reich]{.underline}, 11 F.3d 186, 195 (D.C. Cir.
1993).

> **B. Under Any Accepted Test For Distinguishing Interpretive From
> Legislative Rules, the [Lara]{.underline} Brief Would Be Classified as
> Interpretive**

Because courts have often stated that the distinction between
interpretive rules and legislative rules is "enshrouded in considerable
smog," [see]{.underline} [Friedrich]{.underline}, 894 F.2d at 834, they
have employed a variety of analytical tools to help in the task. The
D.C. Circuit, in an opinion that has won scholarly praise, summarized
these tools in four questions, the answers to which can help determine
whether a rule is interpretive. [See]{.underline} [American Mining Cong.
v. Mine Safety & Health Admin.]{.underline}, 995 F.2d 1106, 1112 (D.C.
Cir. 1993); [see also]{.underline} Robert A. Anthony, "Interpretive
Rules, Legislative Rules and Spurious Rules: Lifting the Smog," 8 Admin.
L.J. Am. U. 1, 5, 16-17 (1994) ([American Mining]{.underline} opinion is
"best judicial expression on the subject"). Those questions are:

> \(1\) whether in the absence of the rule there would not be an
> adequate legislative basis for enforcement action or other agency
> action to confer benefits or ensure the performance of duties, (2)
> whether the agency has published the rule in the Code of Federal
> Regulations, (3) whether the agency has explicitly invoked its general
> legislative authority, or (4) whether the rule effectively amends a
> prior legislative rule. If the answer to any of these questions is
> affirmative, we have a legislative, not an interpretive rule.

[American Mining]{.underline}, 995 F.2d at 1112. Two of these are the
questions previously deemed most important by this Circuit as well.
[See]{.underline} [Friedrich]{.underline}, 894 F.2d at 834-35 (citing
questions of agency intent and pre-existing legal basis for duties).
Thus, answering these questions illuminates the proper characterization
of the Department of Justice's statements in the [Lara]{.underline}
brief.

\(1\) Standard 4.33.3 provides an adequate legal basis for agency action
independent of any statement of its interpretation of that regulation by
the Department. It is Standard 4.33.3, and not anything in the
[Lara]{.underline} brief or any other interpretive document, that
requires that wheelchair spaces be provided "lines of sight comparable"
to members of the general public. The [Lara]{.underline} brief is the
Department of Justice's attempt to clarify the application of this
requirement to stadium-style theaters in a particular case, and as such
it defines the term "comparable" and provides suggestions as to ways to
determine when comparability is achieved. But it does not purport to,
nor does it, add new legal duties. The "lines of sight comparable"
language of Standard 4.33.3, a valid, legislative rule promulgated after
notice and comment and pursuant to a delegation of legislative
authority, is the source of any and all relevant rights and duties.
[See]{.underline} [Paralyzed Veterans v. D.C. Arena]{.underline}, 117
F.3d 579, 588 (D.C. Cir. 1997) (specifically holding that "lines of
sight comparable" language provides adequate legal basis to ensure
performance of duties within meaning of [American Mining]{.underline});
[see also]{.underline} [Lara v. Cinemark USA]{.underline}, 1998 WL
1048497, \*2 (W.D. Tex. Aug. 21, 1998) (finding that certain of
Cinemark's theaters violate ADA because they do not provide "comparable
lines of sight" without mention of Department of Justice's
interpretation of Standard 4.33.3).

Cinemark asserts that the only duty created by Standard 4.33.3 is one of
dispersal of wheelchair spaces to different locations, and that
therefore the Department of Justice's interpretation adds new
requirements not present in the rule. [See]{.underline} Cinemark Br. at
6. This reading of the regulation is not only contrary to precedent, but
also to common sense. The regulation on its face contains several
requirements for each wheelchair space in addition to the requirement
that wheelchair locations be provided comparable lines of sight:  each
one is to be \"an integral part of any fixed seating plan;\" to \"adjoin
an accessible route;\" and to have \"at least one companion fixed seat\"
next to it. [See]{.underline} Standard 4.33.3. [In addition
to]{.underline} these requirements, when seating capacity exceeds 300,
wheelchair spaces are to be dispersed in more than one location.
[Id.]{.underline} None of the other requirements is contingent on the
seating capacity exceeding 300, nor could they be. Certainly the
drafters of the ADA Accessibility Guidelines ("ADAAG") or the Standards
did not intend that, for example, wheelchair locations in small theaters
need not be on an accessible route that serves as an exit. Indeed,
Cinemark itself concedes that this requirement applies to theaters of
any size. [See]{.underline} Cinemark Br. at 18. To read the regulation
as Cinemark suggests would be to fail to give effect to any provisions
requiring something other than dispersal, a violation of one of the
primary tenets of statutory and regulatory construction.
[See]{.underline}, [e.g.]{.underline}, [FederalExpress v.United States
Postal Serv.]{.underline}, 151 F.3d 536, 542 (6^th^ Cir. 1998);
[Silverman v. Eastrich Multiple Investor Fund]{.underline}, 51 F.3d 28,
31 (3d Cir. 1995) (both statutes and regulations should be construed so
that effect is given to all provisions, so that no part will be
inoperative or superfluous, void or insignificant, and so that one
section will not destroy another).[^9]

The history of the adoption of Standard 4.33.3 confirms that the
requirement that wheelchair users be provided comparable lines of sight
was always considered to be independent from the requirement that
wheelchair seating be dispersed. When the Access Board originally
proposed the ADAAG, it included this statement of explanation of Section
4.33.3:

> Section 4.33.3 provides that seating locations for people who use
> wheelchairs [shall be dispersed]{.underline} throughout the seating
> area [and shall be located to provide lines of sight
> comparable]{.underline} to those for all viewing areas.

56 Fed. Reg. 2296, 2314 (1991) (emphasis added). The final guidelines
adopted by the Access Board, in response to comments from the theater
industry and others, modified the dispersal requirement such that
dispersal would only be required in theaters with seating capacity
larger than 300, but left intact the requirement that, in all assembly
areas, wheelchair \"spaces be situated so as to provide wheelchair users
. . . lines of sight comparable to those available to the rest of the
public.\" [See]{.underline} 56 Fed. Reg. 35,408, 35,440 (1991). Indeed,
the Access Board specifically noted again that the line of sight and
dispersal requirements were independent. [See]{.underline}
[id.]{.underline} at35,418 (noting mandated compliance with \"line of
sight and dispersion requirements of 4.33.3\").^1^[^10]

Similarly, the Justice Department\'s final rule adopting the ADAAG text
(including 4.33.3) as its Standards for Accessible Design explicitly
treats dispersal and comparable lines of sight as two separate
requirements. While noting in several places that dispersal would only
be required in assembly areas with seating capacity over 300,
[see]{.underline} 56 Fed. Reg. 35,544, 35,586, 35,587, the Standards
include the separate, operative language of Standard 4.33.3 requiring
provision of comparable lines of sight in all assembly areas.
Furthermore, the Department simultaneously adopted regulations that
provide that wheelchair seating in theaters that predated the new
construction requirements is to [both]{.underline} provide lines of
sight comparable to those for members of the general public,
[see]{.underline} 28 C.F.R. § 36.308(a)(ii)(B), [and]{.underline}, in
cases where seating capacity exceeds 300, be dispersed throughout the
seating area. [See]{.underline} 28 C.F.R. § 36.308(a)(ii)(A); [see
also]{.underline} 56 Fed. Reg. at 35,572. Because, as this history
shows, the legal duty to provide comparable lines of sight preceded the
[Lara]{.underline} brief, the refinements of that duty advocated by the
Department of Justice are interpretive. [See]{.underline} [American
Mining]{.underline}, 995 F.2d at 1110.

\(2\) The [American Mining]{.underline} Court suggested that whether an
agency had published a rule in the Code of Federal Regulations was
indicative of its status as interpretive orlegislative. The
[Lara]{.underline} brief (even if referred to by Cinemark as a "rule")
was not so published.

\(3\) The question of whether an agency has explicitly invoked its
legislative authority in promulgating a rule is simply another way of
asking what "label" the agency has itself put on the action in question.
[See]{.underline} [Friedrich]{.underline}, 894 F.2d at 834. In this
case, the [Lara]{.underline} brief itself uses interpretive language and
purports to be an interpretation, not an exercise of legislative
authority. [See]{.underline} Cinemark Exh. M. That characterization,
while not dispositive of the ultimate question of whether the rule is
interpretive or legislative, is relevant because it is further evidence
that the action in question was not intended to create new rights or
duties. [See]{.underline} [Truckers United for Safety v.
FHA]{.underline}, 139 F.3d 934, 939 (D.C. Cir. 1998); [American
Mining]{.underline}, 995 F.2d at 1112; [Friedrich]{.underline}, 894 F.2d
at 834-35 (agency\'s characterization is \"important\").^1^[^11]

\(4\) Finally, the [Lara]{.underline} brief is interpretive because it
does not amend any prior legislative rule adopted by the Department of
Justice. In this context, the teaching of the D.C. Circuit is
instructive:

A rule does not, in this inquiry, become an amendment merely because it
supplies crisper and more detailed lines than the authority being
interpreted. If that were so, no rule could pass as an interpretation of
a legislative rule unless it were confined to parroting the rule or
replacing the original vagueness with another.

[American Mining]{.underline}, 995 F.2d at 1112. At issue in [American
Mining]{.underline} was enforcement of a Mine Safety and Health
Administration ("MSHA") rule requiring mine operators to report the
"diagnosis" of certain occupational injuries. The MSHA issued a letter
indicating that it would consider a chest x-ray of a miner that showed
at least a certain level of evidence of disease (on a 12-step scale) to
constitute a "diagnosis" for purposes of that rule. The court found this
to be an interpretation of the diagnosis requirement, and not an
amendment of it. [See]{.underline} [id.]{.underline} at1107-08, 1112-13.
The same is true here. The Department of Justice stated that it views
the "lines of sight comparable" language as requiring provision of lines
of sight that are "within the range" of those provided to most other
patrons and neither the worst nor the best. While this is more detailed
than Standard 4.33.3, that does not mean it is not interpretive. [See
also]{.underline} [Orengo Caraballo]{.underline}, 11 F.3d at 195 ("mere
paraphrase would hardly be interpretive at all").

Relying exclusively and extensively on alleged prior interpretations of
Standard 4.33.3 by the Department of Justice, Cinemark contends that the
[Lara]{.underline} brief is legislative because it marks a "clear
change" from preexisting law. [See]{.underline} Cinemark Br. at 7-9,
17-18. This contention is both legally and factually flawed. As a legal
matter, interpretive rules need not merely "restate consistent agency
practice." [Orengo Caraballo]{.underline}, 11 F.3d at 196. An agency can
change its interpretation of an existing statute or legislative rule at
any time. An otherwise interpretive rule, even when representing such a
change, does not require notice and comment unless it is inconsistent
with another rule having the force of law, not just any agency
interpretation regardless of whether it had been codified.
[See]{.underline} [Warder v. Shalala]{.underline}, 149 F.3d 73, 81-82
(1st Cir. 1998)(citing cases); [see also]{.underline} [Guernsey Mem.
Hosp.]{.underline}, 514 U.S. at 100.^1^[^12]

Regardless, as a factual matter, the [Lara]{.underline} brief is not
inconsistent with prior interpretations of Standard 4.33.3. First of
all, there are no such prior interpretations in the context of
stadium-style theaters. As Cinemark itself acknowledges, prior to 1998
the Department of Justice had [never]{.underline} interpreted Standard
4.33.3 in the context of stadium-style theaters. [See]{.underline}
Cinemark Exh. L ¶ 5. The "historical pronouncements" on which Cinemark
places such importance date to an era when stadium-style theaters did
not even exist. [See]{.underline} Cinemark Br. at 7. But as agencies can
apply existing regulations to new facts without engaging in rulemaking
at all, [see]{.underline}, [e.g.]{.underline}, [Guernsey Mem.
Hosp.]{.underline}, 514 U.S. at 96, they cannot be bound by
interpretations that may have been developed before those facts even
existed. Similarly, the primary "pronouncement"on which Cinemark relies
--- an alleged oral statement from April 1991 ---
[pre-dates]{.underline} the promulgation of Standard 4.33.3.
[See]{.underline} Cinemark Br. at 7, 18. Obviously, even if this
reported oral statement were otherwise worthy of credence, the
Department of Justice cannot be bound by alleged interpretations that
pre-date the authority being interpreted.

Furthermore, even if one believed Cinemark's "historical pronouncements"
occurred and were relevant, they are not inconsistent with the
[Lara]{.underline} brief. The gravamen of Cinemark's position is that it
believes the Department of Justice said that in theaters of fewer than
300 seats, the dispersal requirement did not apply and thus wheelchair
locations could be in a single, integrated location. [See]{.underline}
Cinemark Br. at 7. The [Lara]{.underline} brief does not contradict
that, nor does the Department of Justice dispute that there is no
dispersal requirement for such theaters. But nowhere does Cinemark
suggest that the Department of Justice ever said that the single,
integrated location could be placed without regard to comparability of
lines of sight; that may have been Cinemark's wish or assumption, but it
was without foundation.^1^[^13]

Nor does the [Lara]{.underline} brief create any "new" requirements. The
three requirements Cinemark claims are new are that wheelchair spaces
must be in the stadium-style seats, must provide lines of sight within
the range of those provided the general public, and must take into
account viewing angle "discomfort thresholds." [See]{.underline}
Cinemark Br. at 10. Taking them in reverse order, the last of the three,
as noted earlier, is something Cinemark made up. [See]{.underline}
[supra]{.underline} at 6-7. The second is merely a way of describing
what the "lines of sight comparable" language always provided.
[See]{.underline} Cinemark Exh. M at 8. And as to the first, Standard
4.33.3\'s requirements that wheelchair locations be an integral part of
a fixed seating plan and be provided lines of sight "comparable" to
those for members of the general public surely encompass a duty to
provide wheelchair users the same basic product (i.e., stadium seating)
offered to everyone else, especially when that product\'s primary
purpose is to improve sight lines.

Finally, Cinemark can take no solace from the fact that the
Architectural and Transportation Barriers Compliance Board ("Access
Board") has recently proposed amending its Section 4.33.3 as part of a
revision of the entire ADAAG, and has submitted those proposed revisions
for notice and comment. The Access Board continued to make clear in its
proposed rule, consistent with the Department of Justice's
interpretation, that the "lines of sight comparable" requirement is a
separate requirement from the dispersal requirement, and applies in
assembly areas of all sizes. [See]{.underline} 64 Fed. Reg. 62,248,
62,277 (2d. col.) (1999). The Access Board also announced that it would
consider including specific requirements consistent with the Department
of Justice's interpretation of Standard 4.33.3 as part of a legislative
rule. [Id.]{.underline} at 62,278. But the fact that an agency
[can]{.underline} adopt requirements via a legislative rule does not
mean that an agency [must]{.underline} do so. On the contrary, agencies
are free to use notice and comment procedures incases in which t hey are
not required by the APA. [See]{.underline}, [e.g.]{.underline}, [Hoctor
v. United States Dep't of Agric.]{.underline}, 82 F.3d 165, 171-72
(7^th^ Cir. 1996); [American Postal Workers Union v. United States
Postal Serv.]{.underline}, 707 F.2d 548, 565 (D.C. Cir. 1983). The
Access Board's discussion of the Department of Justice interpretation
therefore says nothing about whether the interpretation is itself
legislative or interpretive.

C.  **The Analytical Methods Suggested by Cinemark Are Not Accepted
    Bases for Distinguishing Interpretive From Legislative**

Cinemark's brief does not, for the most part, address any of the modes
of analysis cited above that this Circuit and the D.C. Circuit have
employed to define interpretive rules and distinguish them from other
agency actions. Instead, Cinemark suggests that the [Lara]{.underline}
brief is legislative, and not interpretive, because it creates a
"binding norm," because it has been enforced by the Department of
Justice, and because it "eliminates agency discretion."
[See]{.underline} Cinemark Br. at 14-17. Courts, however, have
specifically rejected the notion that any of these factors are relevant
to the question of whether a rule is interpretive.

First, whether a rule creates a \"binding norm,\" \"eliminates agency
discretion,\" or uses mandatory language \"tells one little about
whether a rule is interpretive.\" [American Mining]{.underline}, 995
F.2d at 1111. As the D.C. Circuit explained, the inquiry as to whether a
rule creates a binding effect arose in the context of attempting to
distinguish legislative rules from [policy statements]{.underline}, not
legislative and interpretive rules. [Id.]{.underline}; [see
also]{.underline} [Ryder Truck Lines v. United States]{.underline}, 716
F.2d 1369, 1377 (11th Cir. 1983). Policy statements and interpretive
rules, although both exempt from notice and comment requirements, are
different types of agency actions, and what distinguishes one from a
legislative rule does not similarly distinguish the other.
[See]{.underline} Attorney General\'s Manual on the Administrative
Procedure Act (1947), at 30 n.3. In particular, while policy statements
are not binding, do not eliminate agency discretion, and do not use
mandatory language, \"\[a\]gencies may permissibly attempt to make their
interpretive rules binding upon private parties without having issued
them through notice-and-comment procedures.\" Anthony, \"Lifting the
Smog,\" 8 Admin. L.J. Am. U. at 12. Thus, the \"two-part test\" that
Cinemark invents has no application to the question before this Court.

Second, the fact that the Department of Justice has attempted to enforce
compliance with Standard 4.33.3, and has done so in a manner consistent
with its interpretation of that rule as set forth in the
[Lara]{.underline} brief, does not change the proper characterization of
the [Lara]{.underline} brief under the APA. Instead, as one commentator
has explained:

> an agency can attempt to make an interpretive document binding upon
> private parties as a practical matter. The agency does this in the
> course of taking action --- typically, initiating an enforcement
> proceeding or passing upon an application --- based on the
> interpretive rule it has adopted. For purposes of that action, the
> agency treats the document as determinative of the interpretive issue
> in question. In this way, the agency has attempted to make the
> document binding in a practical sense, since affected private parties
> must abide by it or get the courts to set it aside. [This is a normal
> use of interpretive rules, and there are important theoretical and
> practical reasons that interpretive rules so used come within Section
> 553\'s exemption from notice-and-comment requirements]{.underline}.

Anthony, \"Lifting the Smog,\" 8 Admin. L.J. Am. U. at 12-13 (emphasis
added). A court is, of course, free to adopt a different interpretation,
and thus the agency\'s action is not legally binding. Nor, in this
respect, does it matter that the agency\'s interpretation is entitled to
some deference from a court. [Cf.]{.underline} Cinemark Br. at 16. It is
well-established that courts defer to the reasonable interpretations of
agencies, and such deference does not transform an otherwise
interpretive rule into a legislative rule. [See]{.underline} [Guernsey
Mem. Hosp.]{.underline}, 514 U.S. at 94-95, 99 (Court defers to agency
interpretation it describes as \"prototypical example\" of interpretive
rule).

Cinemark also cites several random cases in which courts found the rules
before them to be legislative in nature, but fails to explain how any of
those cases is similar to this one. [See]{.underline} Cinemark Br. at
18-20. In fact, the obvious differences further emphasize why the
[Lara]{.underline} brief is interpretive. For example, in [National
Family Planning]{.underline}, the court was faced with a "unique"set of
circumstances: an agency that had promulgated a legislative rule
interpreting a statute as barring abortion counseling by health care
professionals, and that had defended exactly that interpretation of the
rule to the Supreme Court, subsequently suggested that the proper
interpretation was that doctors were exempt from the ban. See [National
Family Planning]{.underline}, 979 F.2d at 231-34, 236. Here, on the
contrary, there is no allegation that the Department of Justice has ever
taken an official position, and certainly not to the Supreme Court, that
lines of sight provided to wheel chair users in theaters need not be
comparable to those provided to the general public. Indeed, the only
court to interpret Standard 4.33.3 in this context has interpreted the
regulation the same way the Department of Justice does,
[see]{.underline} [Lara]{.underline}, 1998 WL 1048497, at \*2, further
distinguishing this case from [National Family Planning]{.underline}.
[See]{.underline} 979 F.2d at 234, 236.

Similarly unhelpful to Cinemark are [Hoctor]{.underline} and [American
Frozen Food Inst. v. United States]{.underline}, 855 F. Supp. 388, 396
(Ct. Int'l Tr. 1994). In each of these cases, the courts found that
specific numerical requirements which purported to be interpretations of
more general requirements were in fact legislative because of their
specificity. Thus, for example, the Seventh Circuit said that an 8 foot
fence requirement was not an interpretation of a regulation requiring
"secure" containment, because it was no more drawn from the language of
the regulation than would have been a 7 or 9 foot fence.
[See]{.underline} [Hoctor]{.underline}, 82 F.3d at 170. No analogous
circumstances exist here. Despite Cinemark's unsupported (and false)
statements to the contrary, the Department of Justice has never
suggested that the duty to provide "lines of sight comparable" requires
wheelchair spaces to be provided lines of sight at or below any
particular viewing angle. [Compare]{.underline} Cinemark Br. at 10, 11,
15 (implying Department of Justice insists on viewing angles of better
than 35 degrees) with Cinemark Exh. P at 1 (noting that Department of
Justice cannot agree to settlement which provides fixed viewing angles
for wheelchair spaces). Rather, the Department's interpretation is
merely that comparable means similar, or within the range provided to
others. If an entire theater provided vertical lines of sight only
between 50 and 60 degrees, wheelchair spaces with vertical sight lines
between 50 and 60 degrees would be comparable notwithstanding the fact
that they, like every other seat in the theater, would have sight lines
greater than 35 degrees that would cause viewers great discomfort.
[Hoctor]{.underline} and similar cases, therefore, have no relevance
here.^1^[^14]

# V. CONCLUSION

For these reasons, Cinemark's Motion For Summary Judgment should be
denied.

> Respectfully submitted,
>
> BILL LANN LEE
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> L. IRENE BOWEN, Deputy Chief
>
> Disability Rights Section

Dated: February 14, 2000
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> EDWARD MILLER
>
> PHYLLIS M. COHEN
>
> Trial Attorneys
>
> Disability Rights Section
>
> Civil Rights Section
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> Telephone: (202) 514-3882
>
> Facsimile: (202) 305-9775
>
> Counsel for Plaintiff
>
> United States of America

[CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1(g)]{.underline}

As of today's date this case has not been assigned a particular track
for case management purposes. I hereby certify that this memorandum does
not exceed twenty(20) pages and therefore complies with the page limits
for unassigned cases contained in Local Rule 7.1(g).

Dated: February 14, 2000
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> EDWARD MILLER

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that today I served copies of Plaintiff United States'
Brief in Opposition to

Defendant's Motion for Summary Judgment, together with the Exhibits to
that Brief, upon Defendant's counsel in the above matter, via prepaid
Federal Express overnight mail, to the following address:

Laura M. Franze, Esquire

Akin, Gump, Strauss, Hauer & Feld, L.L.P.

1700 Pacific Avenue, Suite 4100

Dallas, Texas 75204-4675

A courtesy copy was also sent to the following address by first class
mail:

Mary Adele Springman, Esquire

Millisor & Nobil Co., L.P.A.

1228 Euclid Avenue, Suite 840

Cleveland, Ohio 44115-1802

DATED: February 14, 2000
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> EDWARD MILLER
>
> Trial Attorney
>
> Disability Rights Section
>
> Civil Rights Division
>
> U. S. Department of Justice
>
> P. O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-3442

[^1]: 1 ^1^To the extent Cinemark's affiant testifies that wheelchair
    users have "unobstructed" lines of sight, [see]{.underline} Cinemark
    Exh. B. ¶ 5, that iscontradictedbyhis prior testimony that
    stadium-style seating eliminates obstruction that would be present
    in non-stadium seating. [See]{.underline} [id.]{.underline} at ¶ 4.
    Both of these statements cannot be true.Instead, Cinemark's own
    designs graphically demonstrate that wheelchair seating locations,
    placed on the floor and not on the risers, are provided obstructed
    sight lines. [See]{.underline} United States' Exhibit 2.

[^2]: 2 ^2^Although the Department of Justice brief was filed prior to
    the court\'s order, the court did not rely on the Department of
    Justice\'s views in ruling against Cinemark, finding that
    Cinemark\'s theaters violated the ADA and Standard 4.33.3 on their
    face. [See]{.underline} Cinemark Exh. O, Order Denying Def.\'s Mot.
    for Delay Ending Discovery. Cinemark\'s further statement that the
    [Lara]{.underline} court ordered it to retrofit its theaters \"in
    accordance with the [Lara]{.underline} rule\" is similiary
    inaccurate. [See]{.underline} Cinemark Br. at 11. The
    [Lara]{.underline} court did not hear from or rely on the Department
    of Justice in fashioning a remedy. [See]{.underline} Cinemark Exh.
    O, Order Awarding Damages and Granting Injunctive Relief.

[^3]: 3

    ^3^ The [Lara]{.underline} brief is undisputedly a brief .Whether it
    is a rule, and if so what type, is for the Court to determine.

[^4]: 4 ^4^This is only one example --- there are at least four --- of
    an instance where Cinemark's brief purports to quote language from a
    document that does not contain any such language. [See
    also]{.underline} Cinemark Br. at 10 ("industry-wide"), 11 ("better
    than median"), 11 ("less than 35 degrees"). Nor is it a case of
    merely mistyping words but accurately reflecting ideas; as shown in
    the text above, the ideas Cinemark suggests are represented in these
    documents do not so appear. Cinemark's "factual" recitations should
    therefore be read skeptically.

[^5]: 5 ^5^The Defendant included only excerpts of a settlement
    agreement in [Arnold, et al. v. United Artists Theatre
    Circuit]{.underline} and then misrepresented that the agreement
    "placed no restriction on the location of wheelchair placements in
    small movie theaters\..." Cinemark Br. at 8, ¶16. The United States
    encloses a complete copy of the agreement, demonstrating that such
    restrictions are included. [See e.g.]{.underline}, §§ 3.1.1; 3.1.4;
    4.4; 5.1.2; 5.3.2 of United States' Exhibit 3

[^6]: 6 ^6^Another incorrect factual assertion relates to Cinemark's
    claims that the Department of Justice had, until the
    [Lara]{.underline} brief, consistently informed that the "exception"
    in Standard 4.33.3 applied to auditoria with a floor slope of
    greater than five percent (and therefore applied to Cinemark's
    theaters). Cinemark Br. at 7, ¶ 15. In support of its self-serving
    construction of the Department's position, Cinemark relies on two
    affidavits, Def. App. Ex. D and E, to establish that a staff
    attorney made oral statements in 1991 supporting NATO's and
    Cinemark's reading of Standard 4.33.3. Even if the statements were
    made, they clearly could not have constituted official
    interpretations of the Department's position, and it is unreasonable
    for Cinemark or NATO to rely upon them. [See e.g.]{.underline},
    [Heckler v. Community Health Services]{.underline}, 467 U.S. 51, 65
    (1984); [Schweiker v. Hansen]{.underline}, 450 U.S. 785, 788 (1981)
    (per curiam).

    More substantively, the facts concerning events since the time of
    the speech do not support Cinemark's assertions. On December 9,
    1991, NATO informed its members that Standard 4.33.3 "applies only
    to balconies and mezzanines and was never intended to apply to the
    primary seating area in a public seating area." United States'
    Exhibit 4 at 2. Further, since the alleged Kaltenborn speech NATO
    has contacted the Department of Justice repeatedly regarding the
    exception language and urged that the Department adopt NATO's
    position. United States' Exhibit 5. Surely, if NATO and its members,
    including Cinemark, had believed that the Department officially
    endorsed their reading of the section 4.33.3 exception to the
    wheelchair seating dispersal, there would have been no need for the
    letters requesting meetings on the subject.

    NATO itself has rejected Cinemark's contention that "comparable
    lines of sight" is relevant only to "degrees of obstruction." Since
    January, 1994, it has been NATO's position that Standard 4.33.3 "is
    included to ensure that wheelchair patrons are not always placed in
    the worst seats in an auditorium." United States' Exhibit 6 at 3.
    While Cinemark has relied on NATO affiants, it failed to rely on
    NATO's position when constructing its theaters.

[^7]: 7 ^7^As a threshold matter, the [Lara]{.underline} brief, and the
    interpretation within it, is not even "final agency action" subject
    to challenge under the APA. [See]{.underline} United States' Motion
    to Dismiss Counterclaim, filed Nov. 17, 1999 (pending). The only
    federal district court to issue a decision on this issue agrees.
    [See]{.underline} AMC decision attached hereto as United States'
    Exhibit 7. The Magistrate Judge's recommendation to which Cinemark
    refers, [see]{.underline} Cinemark Br. at 3, is still pending before
    the Northern District of Texas, along with the United States'
    objections to that recommendation.

[^8]: 8 ^8^To the extent Cinemark argues that the Department has
    subsequently further modified or clarified the interpretation set
    forth in the [Lara]{.underline} brief, [see]{.underline} Cinemark
    Br. at 11, that argument is based solely on inadmissible (or
    non-existent) evidence and should be disregarded. [See]{.underline}
    United States' Motion to Strike, filed contemporaneously with this
    brief, at 1-4; [see also]{.underline} [supra]{.underline} at 6
    (noting that, contrary to Cinemark's assertion, nowhere in
    [Lara]{.underline} brief does U.S. say anything about taking into
    account "discomfort thresholds"). In any event, while Cinemark seeks
    to cloud the issue by referring to the challenged act as the
    "[Lara]{.underline} rule" it is clear that the focus of its
    challenge is no more than the interpretation of Standard 4.33.3 set
    forth in the [Lara]{.underline} amicus brief. [See]{.underline}
    Cinemark Br. at 10.

[^9]: 9 ^9^Similarly, the exception language of Standard 4.33.3 is an
    exception to the dispersal requirement in that regulation, but could
    not be read as an exception to other requirements for wheelchair
    spaces such as that they adjoin an accessible route, have companion
    seats, and be provided comparable lines of sight.

[^10]: 0 ^10^[Caruso v. Blockbuster-Sony Music Entertainment
    Centre]{.underline}, 193 F.3d 730 (3d Cir. 1999), is not to the
    contrary. The issue in that case (like in [Paralyzed
    Veterans]{.underline}) was whether Standard 4.33.3\'s "lines of
    sight comparable" language was sufficiently broad to require lines
    of sight [over standing spectators]{.underline}. Based on specific
    regulatory language that seemed to reserve that issue for future
    regulation, the Third Circuit found that Standard 4.33.3 could not
    be read as covering that topic. [See]{.underline}
    [Caruso]{.underline}, 193 F.3d at 734-36; [but see]{.underline}
    [Paralyzed Veterans]{.underline}, 117 F.3d at 587 (D.C. Circuit
    reached opposite conclusion). Cinemark cites no comparable
    regulatory history in this case, nor is there any, that would
    support Cinemark's notion that the "lines of sight comparable"
    language is devoid of meaning in assembly areas where dispersal is
    not also required. Thus, the Third Circuit's analysis in
    [Caruso]{.underline}, even if it were correct, would be
    inapplicable.

[^11]: 1 ^11^Contrary to Cinemark's suggestion, [see]{.underline}
    Cinemark Br. at 13-14, neither this Circuit nor the D.C. Circuit
    considers the agency's own label of its action to be irrelevant in
    determining whether a particular action is interpretive or
    legislative. [Cf.]{.underline} [State of Ohio Dep't of Human Servs.
    v. United States Dep't of Health & Human Servs.]{.underline}, 862
    F.2d 1228, 1234 (6^th^ Cir. 1988) (agency characterization
    \"relevant\" but not dispositive)..

[^12]: 2 ^12^The cases cited by Cinemark are to the same effect.
    [See]{.underline}, [e.g.]{.underline}, [Phillips Petroleum Co. v.
    Johnson]{.underline}, 22 F.3d 616, 619 & n.3 (5^th^ Cir. 1994) (rule
    required notice and comment because inconsistent with existing
    legislative rule); [National Family Planning & Reproductive Health
    Ass'n v. Sullivan]{.underline}, 979 F.2d 227, 235, 239 (D.C. Cir.
    1992) (same).

[^13]: 3 ^13^Similarly without foundation is any expectation by Cinemark
    arising out of the Department of Justice's certification that the
    Texas Accessibility Standards --- the state accessibility code of
    Texas --- meet or exceed the standards of the ADA. As ADA
    regulations make clear, the Department of Justice can and does
    certify that state codes meet ADA standards, but it cannot and does
    not say anything about a state or local government official's
    application or interpretation of that code. [See]{.underline} 28
    C.F.R. pt. 36, App. B at 668 ("the fact that the Department has
    certified the code itself will not stand as evidence that \[an
    approved\] facility has been constructed or altered in accordance
    with the minimum accessibility requirements of the ADA"). Indeed,
    the City of El Paso's Department of Public Inspection, which is a
    TAS Plan Review Municipal Contract Provider, specifically states on
    its cover form granting "conditional approval" of Cinemark's El Paso
    theater: "This determination does not address applicability of the
    Americans with Disabilities Act (ADA)." Cinemark Exh. B.

[^14]: 4 ^14^Furthermore, a rule that provides numerical absolutes as an
    interpretation of a more general requirement is not necessarily
    legislative. [See]{.underline}, [e.g.]{.underline}, [St. Francis
    Health Care Centre v. Shalala]{.underline}, 10 F. Supp.2d887,889-90,
    894 (N.D. Ohio 1998); [see also]{.underline} [Hoctor]{.underline},
    82 F.3d at 171; [American Mining]{.underline}, 995 F.2d at 1112-13.