Number range CHAPTERBILL LANN LEE

Acting Assistant Attorney General

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

Civil Rights Division

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

SHIRLEY WANG

Assistant United States Attorney

California Bar No. 181669

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-0474

Facsimile: (213) 894-7819

JEANINE M. WORDEN

JOHN A. RUSS IV

Trial Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

1425 New York Avenue, N.W.

Room 4073

Post Office Box 66738

Washington, D.C. 20035-6738

Telephone: (202) 307-6556

Telephone: (202) 353-7738

Facsimile: (202) 307-1198

Counsel for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

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

)

Plaintiff, ) **PLAINTIFF UNITED STATES'** **REPLY**

v\. ) **MEMORANDUM IN SUPPORT**

) **OF ITS MOTION TO DISMISS**

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

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

) **Judge:** Florence-Marie Cooper

Defendants. ) **Date:** June 26, 2000

) **Time:** 10 a.m.

**TABLE OF CONTENTS**

**TABLE OF AUTHORITIES** iii

**PRELIMINARY STATEMENT** 1

**STATUTORY AND FACTUAL BACKGROUND** 2

**ARGUMENT** 6

> **I. Standard of Review** 6
>
> **II. No Changed Circumstances Exist to Warrant Abandoning the Law\
> of the Case** 8
>
> **III. Defendant Has Identified No Action by the Department of
> Justice\
> that Constitutes Final Agency Action** 10
>
> **IV. Further Discovery Will Not Reveal Any Final Agency Action** 17
>
> **V. The Court Need Not Reach the Issue of Whether STK Has an
> Adequate\
> Remedy in a Court Because STK Cannot Point to Any Final Agency\
> Action by the Department** 18

**CONCLUSION** 20

**TABLE OF AUTHORITIES**

**[CASES]{.underline}**

[Abbott Laboratories v. Gardner]{.underline}, 387 U.S. 136, 87 S. Ct.
1507, 18 L. Ed. 2d 681 (1967), [overruled on other grounds]{.underline},
[Califano v. Sanders]{.underline}, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed.
2d 192 (1977) 11

[Association of Public Agency Customers v. Bonneville Power
Admin.]{.underline}, 126 F.3d 1158 (9th Cir. 1997) 15

[Auer v. Robbins]{.underline}, 519 U.S. 452, 117 S. Ct. 095 (1997) 13

[Batterton v. Marshall]{.underline}, 648 F.2d 694 (D.C. Cir. 1980) 14

[Bennett v. Spear]{.underline}, 520 U.S. 154 (1997) 13

[Bragdon v. Abbott]{.underline}, 524 U.S. 624, 118 S. Ct. 2196, 141 L.
Ed. 2d 540 (1998) 13

[California Dep't of Educ. v. Bennett]{.underline}, 833 F.2d 827 (9^th^
Cir. 1987) 19

[California ex rel. Christensen v. FTC]{.underline}, 549 F.2d 1321
(9^th^ Cir. 1977) 19

[Camp v. Pitts]{.underline}, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d
106 (1973) 18

[Caruso v. Blockbuster-Sony Music]{.underline}, 174 F.3d 166, 177 (3d
Cir.), [vacated and superseded on reh'g]{.underline}, 193 F.3d 730 (3d
Cir. 1999) 2-3

[Cinemark v. United States Dept of Justice]{.underline}, 99-CV-0183
(N.D. Tex) 7, 9

[Dow Chemical v. United States EPA]{.underline}, 832 F.2d 319 (5th Cir.
1987) 10

[Ecology Center, Inc. v. United States Forest Serv.]{.underline}, 192
F.3d 922 (9^th^ Cir. 1999) 12, 16, 18

[First Nat'l Bank v. Steinbrink]{.underline}, 812 F. Supp. 849 (N.D.
Ill. 1993) 19

[Friends of the Earth v. Hintz]{.underline}, 800 F.2d 822 (9^th^ Cir.
1986) 18

[FTC v. Standard Oil Co. of Cal.]{.underline}, 449 U.S. 232, 101 S. Ct.
488, 66 L. Ed. 2d 416 (1980) 10

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

[Grolier Inc. v. FTC]{.underline}, 699 F.2d 983 (9^th^ Cir. 1983) 18

[Heckler v. Chaney]{.underline}, 470 U.S. 821, 105 S. Ct. 1649, 84 L.
Ed. 2d 714 (1985) 5, 11

[Independent Broker-Dealers' Trade Ass'n v. SEC]{.underline}, 442 F.2d
132 (D.C. Cir. 1970) 15-16

[Independent Living Resources v. Oregon Arena Corp.]{.underline} 982 F.
Supp. 698 (D. Or. 1997) 2-3, 5

[Lara v. Cinemark]{.underline}, 1998 WL 1048497 (W.D. Tex. 1998) 8

[Lara v. Cinemark]{.underline}, 207 F.3d 783 (5th Cir. 2000) 5, 8

[Lujan v. National Wildlife Federation]{.underline}, 497 U.S. 871, 110
S. Ct. 3177,\
111 L. Ed. 2d 695 (1990) 12, 18

[Marshall Leasing, Inc. v. United States]{.underline}, 893 F.2d 1096,
1110 (9^th^ Cir. 1990) 19

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

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

[Olmstead v. Zimring]{.underline}, 527 U.S. 581, 119 S. Ct. 2176 (1999)
13

[ONRC Action v. Bureau of Land Management]{.underline}, 150 F.3d 1132
(9^th^ Cir. 1998) 12, 13, 18

[Paralyzed Veterans of America v. D.C. Arena, L.P.]{.underline}, 117
F.3d 579 (D.C. Cir. 1997), [cert. denied]{.underline} [sub
nom.]{.underline}, [Pollin v. Paralyzed Veterans of
America]{.underline}, 523 U.S. 1003 (1998) 2

[Rainsong Co. v. FERC]{.underline}, 151 F.3d 1231 (9^th^ Cir. 1998),
[cert. denied]{.underline}, 120 S. Ct. 43 (1999) 5, 6

[Razore v. Tulalip Tribes of Washington]{.underline}, 66 F.3d 236 (9^th^
Cir. 1995) 5

[Ridgeway v. Montana High School Ass'n]{.underline}, 858 F.2d 579 (9^th^
Cir. 1988) 6-7, 8

[San Antonio Community Hospital v. Southern California Dist. Council of
Carpenters]{.underline}, 125 F.3d 1230 (9^th^ Cir. 1997) 19-20

[Southern California Aerial Advertisers' Ass'n v. FAA]{.underline}, 811
F.2d 672 (9^th^ Cir. 1989) 17

[Tang v. State of Rhode Island]{.underline}, 163 F.3d 7 (1^st^ Cir.
1998) 7

[Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept v.
Dole]{.underline}, 948 F.2d 953 (5th Cir. 1991) 10, 14-15

[Ukiah Valley Med. Ctr. v. Federal Trade Comm\'n]{.underline}, 911 F.2d
261 (9th Cir. 1990) 9, 11, 19

[United States v. Alexander]{.underline}, 106 F.3d 874 (9th Cir. 1997) 6

[United States v. Byrne]{.underline}, 192 F.3d 888 (9^th^ Cir. 1999),
[superseded and withdrawn]{.underline}, 203 F.3d 671 (9^th^ Cir. 2000) 7

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

[Western Radio Servs. Co. v. Glickman]{.underline}, 123 F.3d 1189 (9th
Cir. 1997) 8

[Zaharakis v. Heckler]{.underline}, 744 F.2d 711 (9th Cir. 1984) 14

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

Administrative Procedure Act (\"APA\")\
5 U.S.C. § 704 11, 19

Americans with Disabilities Act (\"ADA\")\
42 U.S.C. § 12101, [et]{.underline} [seq]{.underline} 1\
42 U.S.C. § 12188 2, 9, 13

28 U.S.C. § 636 9

28 U.S.C. § 1331 10

28 C.F.R. § 36.507 6

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

**PRELIMINARY STATEMENT**

STK claims that the United States has created and seeks to enforce
"highly technical 'line of sight' requirements for wheelchair seating in
'stadium style' movie theaters." Def.'s Opp'n Br. at 1. This assertion
fundamentally mischaracterizes the nature of the United States' lawsuit.
The United States has filed this suit to enforce the Americans with
Disabilities Act (ADA) and its implementing regulations, including
Standard 4.33.3, based upon a plain language interpretation of the law.
The District Court in its December 17^th^ written order has held that
this interpretation is not final agency action. [See]{.underline} Dec.
17^th^ Order at 11 ("The filing of the brief \[in [Lara]{.underline}\]
and [articulation of an interpretation of Standard 4.33.3]{.underline},
therefore, did not constitute final agency action subject to judicial
review.") (emphasis added).

Ignoring the binding legal authority of the December 17^th^ order,
Defendant STK attempts to reargue questions of law on the United States'
alleged violation of the Administrative Procedure Act (APA), 5 U.S.C. §§
701-706, that have already been resolved in favor of the plaintiff in
this case. The December 17^th^ Order rejected Defendant AMC's identical
arguments that the United States has engaged in final agency action, a
prerequisite for bringing a claim under the APA, and Defendant has
failed to identify any other action by the Department that constitutes
final agency action under Supreme Court and Ninth Circuit precedents.
The APA counterclaims of Defendants AMC and STK attempt to revisit
issues already decided against them and to distract attention from the
central issue in this case: that Defendants have discriminated against
persons who use wheelchairs by relegating them to the worst seats in
Defendants' stadium-style movie theaters.

Most of Defendant's arguments in its Opposition Brief have already been
rejected by Judge Morrow in the December 17^th^ Order. Despite
Defendant's assertions to the contrary, that Order's legal conclusions
that the United States has not engaged in final agency action represent
binding law of the case, and there are no facts or intervening changes
in the law that warrant revisiting these conclusions. Because Defendant
has failed to identify [any]{.underline} action by the United States
that qualifies as final agency action under either the standards set
forth in the December 17^th^ Order, [see]{.underline} Dec. 17^th^ Order
at 18, or in binding court precedent, this Court should follow the law
of the case and dismiss STK's APA-based counterclaim with prejudice.

**STATUTORY AND FACTUAL BACKGROUND**

Defendant STK attempts to rewrite the history of the Department's
promulgation and enforcement of Standard 4.33.3 in its opposition to the
United States' motion to dismiss. The Department disagrees with this
purported history, but it is not necessary to address every inaccuracy.
The most important point is that the United States has not attempted to
adopt highly technical line of sight requirements under Standard 4.33.3,
as Defendant erroneously alleges. [See]{.underline} Def.'s Opp'n Br. at
2. Standard 4.33.3 requires that movie theaters provide patrons who use
wheelchairs with "lines of sight comparable to those for members of the
general public." [See]{.underline} 28 C.F.R. pt. 36, Appendix A, §
4.33.3. Relegating wheelchair users to the worst seats of a stadium
auditorium clearly violates that standard. The Department can only
enforce this plain language interpretation of Standard 4.33.3, however,
by filing an enforcement action in U.S. District Court, 42 U.S.C. §
12188(b)(1)(B), and only a court order can force Defendant to comply
with that plain-language interpretation. [See]{.underline} 42 U.S.C. §
12188(b)(1)(B).

The United States will not repeat the history of this case as laid out
in its initial brief, [see]{.underline} Br. at 2-4,[^1] but will note
several of the more glaring errors presented by STK as fact. First, much
of Defendant's "history" focuses on the Department's enforcement of
Standard 4.33.3 in the context of sports arenas, particularly two cases,
[Caruso v. Blockbuster-Sony Music]{.underline}, 174 F.3d 166, 177 (3d
Cir.), [vacated and superseded on reh'g]{.underline}, 193 F.3d 730 (3d
Cir. 1999); [Independent Living Resources v. Oregon Arena
Corp.]{.underline}, 982 F. Supp. 698, 758 (D. Or. 1997).[^2] The
District Court's December 17^th^ Order has rejected Defendants' attempts
to apply those two cases' APA analysis to the present action:

> Neither [Caruso]{.underline} nor [Independent Living]{.underline}
> addressed the issue presently before the court, i.e., whether DOJ's
> interpretation of Standard 4.33.3 was final agency action that could
> be judicially reviewed under the APA. All parties \[in
> [Caruso]{.underline} and [Independent Living]{.underline}\] apparently
> agreed that the Department's issuance of the 1994 TAM Supplement
> constituted final agency action; their disagreement concerned whether
> requiring a line of sight over standing spectators constituted a
> substantive or interpretative rule. . . . Unlike the Department's
> interpretation of the line of sight requirement at issue in
> [Caruso]{.underline} and [Independent Living]{.underline}, the
> interpretation it seeks to enforce in this action has not been subject
> of any official statement of policy or position equivalent to the TAM
> Supplement. Rather, AMC contends that DOJ has taken final agency
> action by filing an amicus brief, sending private communications to
> theater owners, and threatening to initiate and in fact initiating
> litigation against some of them. Consequently, the 1994 TAM
> Supplemental cases do not control decision of the issues raised in
> DOJ's motion to dismiss.

December 17^th^ Order at 9. As the District Court correctly observed,
unlike the sports arena cases, the Department has issued no technical
assistance manual supplement or other policy directive that constitutes
final agency action in this case. Therefore, Defendant's assertion that
"\[t\]he issue of this case was decided in [Caruso]{.underline} and
[Independent Living Resources]{.underline}," [see]{.underline} Def.'s
Opp'n Br. at 23, is simply not true.

The sports arena context is also factually distinct from the present
action: in sports arenas, unlike movie theaters, spectators tend to
stand up during critical moments of sporting events in order to get a
better view of the field below. Because they generally cannot stand up,
persons seated in wheelchairs spend key moments of sporting events
staring at the backsides of persons standing in front of them, unless
wheelchair seating in sports arenas provides lines of sight over
standing spectators. Furthermore, in a sports arena, a patron typically
has a choice of admission prices, the quality of the patron\'s seat and
amenities provided to the patron typically vary depending on the
admission price paid, and the patron typically has multiple points of
focus (for example, in a baseball stadium, the patron is likely to focus
on the movement and activity of multiple players, the umpire, and the
baseball). In movie theaters, however, a patron typically pays one price
for admission and focuses on one stationary object --- the screen where
the movie is projected. These differences are important, since Standard
4.33.3 requires that wheelchair locations provide not only \"lines of
sight comparable to those for members of the general public\" but also
\"a choice of admission prices.\" Consequently, factors relevant to
determining lines of sight in sports arenas are very different from
those relevant in determining lines of sight in movie theaters.

Second, Defendant erroneously asserts that the Department has adopted a
complicated new formula for determining whether a movie theater offers
wheelchair seating with lines of sight comparable to those for members
of the general public.[^3] [See]{.underline} Def.'s Opp'n Br. at 9.
Contrary to Defendant's assertions, the United States has
[not]{.underline} incorporated the Society of Motion Picture and
Television Engineers (SMPTE) Guidelines for the Design of Effective Cine
Theaters. The United States has simply taken a plain language approach
to interpreting Standard 4.33.3: lines of sight provided to wheelchair
users must be comparable to those provided to members of the general
public, with comparable given its ordinary meaning of "equivalent" or
"similar." [See]{.underline} Webster's Ninth New Collegiate Dictionary
(1990). The purpose of the Department's reference to SMPTE Guidelines in
its [amicus]{.underline} brief in the [Lara]{.underline} case was to
provide documentary evidence of the manner in which the motion picture
theater industry measures sightlines in movie theaters and evidence of
the extremely poor quality of sightlines provided to wheelchair users in
the theaters at issue in that case. The United States has not adopted
the SMPTE Guidelines in any way.

Third, contrary to the plain language of Standard 4.33.3, Defendant
argues that "\[a\]t the time \[Standard\] 4.33.3 was adopted it
contained no specific requirements for lines of sight and the term
'comparable' referred only to the distribution of wheelchair seating in
assembly areas of more than 300 seats." Def.'s Opp'n Br. at 5. A review
of the plain language of Standard 4.33.3 reveals the errors in
Defendant's arguments. The regulation on its face contains several
requirements for each wheelchair space, including that it provide "lines
of sight comparable to those for members of the general public," that
wheelchair locations be "an integral part of any fixed seating plan,"
that they "adjoin an accessible route," and that a companion seat be
located next to each wheelchair space. [See]{.underline} 28 C.F.R. Part
36, App. A, § 4.33.3. [In addition]{.underline} to 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. [See]{.underline} [Lara v. Cinemark]{.underline}, 207
F.3d 783, 787-88 (5^th^ Cir. 2000) (holding that comparable lines of
seat applies to all theaters, regardless of number of seats). Certainly
the drafters of Standard 4.33.3 did not intend wheelchair locations in
each theater with 300 seats or less to lack companion seats so that
persons who use wheelchairs cannot sit alongside their companions, or
lack an accessible route so that persons using wheelchairs could not
access the required wheelchair seating locations or evacuate the theater
in the event of a fire or other emergency. To read the regulation as
applying its requirements only to theaters with more than 300 fixed
seats would fail to give effect to the regulation's other requirements,
thereby violating one of the primary tenets of statutory construction
that statutes and regulations should be read to give effect, if
possible, to every clause. [See]{.underline}, [e.g.]{.underline},
[Heckler v. Chaney]{.underline}, 470 U.S. 821, 829 (1985); [Rainsong Co.
v. FERC]{.underline}, 151 F.3d 1231, 1234 (9^th^ Cir. 1998), [cert.
denied]{.underline}, 120 S. Ct. 43, 145 L. Ed. 2d 39 (1999); [Razore v.
Tulalip Tribes of Washington]{.underline}, 66 F.3d 236, 239 (9^th^ Cir.
1995).

Defendant adopts the incorrect conclusion of the [Independent Living
Resources]{.underline} case to mistakenly assert that, at the time of
its adoption, Standard "4.33.3 did not contain any requirements
regarding lines of sight," other than a dispersal requirement for
theaters with more than 300 seats. Def.'s Opp'n Br. at 5, 6 (citing
[Independent Living Resources]{.underline}, 982 F. Supp. at 743). As
noted above, Defendant's reading of the regulation renders the term
"lines of sight comparable" meaningless, in violation of principles of
statutory construction. [See]{.underline} [Heckler]{.underline}, 470
U.S. at 829; [Rainsong]{.underline}, 151 F.3d at 1234. Defendant also
suggests that the lines of sight provision lacked any meaning because of
the purported lack of any commentary or technical assistance provided by
either the Access Board or the Department of Justice. [See]{.underline}
Def.'s Opp'n Br. at 5. As a legal matter, the lack of technical
assistance with respect to an issue is not a proper defense to
liability. [See]{.underline} 28 C.F.R. § 36.507 (\"A public
accommodation or other private entity shall not be excused from
compliance with the requirements of this part \[of the regulations\]
because of any failure to receive technical assistance. . . .\").[^4]

**ARGUMENT**

**I. STANDARD OF REVIEW**

Under the "law of the case" doctrine, "a court is generally precluded
from reconsidering an issue that has already been decided by the same
court, or a higher court in the identical case." [United States v.
Alexander]{.underline}, 106 F.3d 874, 876 (9^th^ Cir. 1997) (quoting
[Thomas v. Bible]{.underline}, 983 F.2d 152, 154 (9^th^ Cir. 1993)). The
Ninth Circuit has flatly rejected Defendant's argument,
[see]{.underline} Def.'s Opp'n Br. at 2-3, that a district court is
"free to disregard the preceding orders" of another district court judge
assigned to the same case. [Ridgeway v. Montana High School
Ass'n]{.underline}, 858 F.2d 579, 587 (9^th^ Cir. 1988). Courts "should
be reluctant to change decisions already made, because encouragement of
change would create intolerable instability for the parties."
[Id.]{.underline} at 587.

The Ninth Circuit has identified only five narrow circumstances under
which a court might depart from the law of the case: where "1) the first
decision was clearly erroneous; 2) an intervening change in the law has
occurred; 3) the evidence on remand is substantially different; 4) other
changed circumstances exist; or 5) a manifest injustice would otherwise
result." [Id.]{.underline} The failure to apply this doctrine "absent
one of the requisite conditions constitutes an abuse of discretion."
[Id.]{.underline} Defendant has failed to identify any legitimate
rationale for revisiting the Judge Morrow's conclusion that the
Department's activities identified by Defendants do not constitute final
agency action. [See]{.underline} discussion below, Sections II & III.
Furthermore, the Northern District of Ohio has reached the same
conclusion as Judge Morrow did in this Court's December 17^th^ Order,
holding that the United States' actions in attempting to enforce
Standard 4.33.3 to stadium-style movie theaters do not constitute final
agency action.[^5] [See]{.underline} [United States v. Cinemark USA,
Inc.]{.underline}, 99-CV-705, Memorandum Opinion and Order at 12 (Mar.
22, 2000) (hereinafter "Ohio [Cinemark]{.underline} Order (Mar. 22,
2000)") ([see]{.underline} United States' Initial Brief, Exhibit A).

Despite the clear law of this Circuit, Defendant baldly asserts that
"\[t\]his Court is free to decide the Dismissal Motion independent of
any previous order." Def.'s Opp'n Br. at 3. Defendant cites to [United
States v. Byrne]{.underline}, 192 F.3d 888, 891 (9^th^ Cir. 1999), an
opinion that was withdrawn on January 31, 2000, and superseded on
rehearing by [United States v. Byrne]{.underline}, 203 F.3d 671 (9^th^
Cir. 2000). [Byrne]{.underline} analyzed whether the Double Jeopardy
Clause was violated when a judge reconsidered an oral ruling granting a
motion for acquittal; the case does not address the "law of the case"
doctrine. [See]{.underline} 203 F.3d at 673. Likewise, Defendant's
citation to [Tang v. State of Rhode Island]{.underline}, 163 F.3d 7, 11
(1^st^ Cir. 1998) is inapposite. In that case, the First Circuit found
that an oral comment made by one district court judge on the
admissibility of certain evidence did not bind a subsequent district
court judge under the law of the case doctrine. [Id.]{.underline} at
10-11. This result turned in part on the First Circuit's practice of not
applying the law of the case doctrine to interlocutory orders,
[id.]{.underline} at 11, a policy that the Ninth Circuit has rejected.
[See]{.underline} [Ridgeway]{.underline}, 858 F.2d at 587 (holding that
law of the case doctrine "applies to interlocutory decisions of the same
or higher tribunals"). The December 17^th^ Order is binding law of the
case.

**II. No Changed Circumstances Exist to Warrant Abandoning the Law of
the Case.**

Defendant raises several "subsequent events" that allegedly provide
grounds for ignoring the District Court's December 17^th^ Order
dismissing AMC's APA-based counterclaim. Def.'s Opp'n Br. at 10-11, 12.
For example, Defendant asserts that the Fifth Circuit's decision in
[Lara v. Cinemark]{.underline} somehow justifies disregarding the
December 17^th^ Order. [Id.]{.underline} at 11. In fact,
[Lara]{.underline} supports the conclusion that the United States has
not engaged in final agency action. In [Lara]{.underline}, a private
lawsuit against a movie theater, the United States filed an
[amicus]{.underline} brief to convince the Court to adopt the
Department's interpretation of Standard 4.33.3. The District Court found
that the stadium-style theaters violated the ADA and Standard 4.33.3,
based on its own interpretation of the plain language of the regulation.
[See]{.underline} [Lara v. Cinemark]{.underline}, 1998 WL 1048497 (W.D.
Tex. 1998) ([see]{.underline} U.S. Initial Brief, Ex. B). The Fifth
Circuit reversed the District Court, announcing its own, different
interpretation of Standard 4.33.3 by holding that the regulation "does
not require movie theaters to provide disabled patrons with the same
viewing angles available to the majority of non-disabled patrons."
[See]{.underline} [Lara]{.underline}, 207 F.3d 783, 789 (5th Cir. 2000).
Although the Department strongly disagrees with the Fifth Circuit's
conclusions as to the proper interpretation of the Department's
regulation, the decision is further evidence that the Department's
interpretation is not final agency action. The Fifth Circuit referred to
the Department's interpretation as a "litigating position" that did not
provide "specific regulatory guidance" about the meaning of Standard
4.33.3. [See]{.underline} [id.]{.underline} at 789. Whether or not the
Fifth Circuit gave the Department's interpretation the proper level of
consideration, it is plain that the Court did not believe that the
interpretation fixes rights or imposes legal obligations. Absent those
facts, the Department's interpretation cannot be final agency action.
[See]{.underline} [Gallo Cattle Co. v. United States Dep't of
Agriculture]{.underline}, 159 F.3d 1194, 1199 (9^th^ Cir. 1998);
[Western Radio Servs. Co. v. Glickman]{.underline}, 123 F.3d 1189, 1196
(9^th^ Cir. 1997).

Second, Defendant's citation to recent statements made by the United
States Architectural and Transportation Barriers Compliance Board ("the
Access Board") are also inapposite. [See]{.underline} Def.'s Opp'n Br.
at 3, 10-11 (citing 64 Fed. Reg. 62,248, 62,278 (Nov. 16, 1999)). The
Board's statement that the Department is attempting to settle particular
cases where patrons who use wheelchairs are not provided comparable
lines of sight is consistent with the December 17^th^ Order's conclusion
that there is no final agency action in this case. The Department's
interpretation of the regulation in litigation does not determine rights
or fix obligations, nor do any binding legal consequences flow from it.
[See]{.underline} [Gallo Cattle Co.]{.underline}, 159 F.3d at 1199;
[Ukiah Valley Medical Ctr. v. FTC]{.underline}, 911 F.2d 261, 264 (9^th^
Cir. 1990). Although the Department attempts to settle or resolve
violations of law without resorting to litigation, the Department cannot
enforce the regulation upon an unwilling party except by filing an
enforcement action in a U.S. District Court and obtaining a court order.
[See]{.underline} 42 U.S.C. § 12188(b)(1)(B); [id.]{.underline} §
12888(b)(2); [Ukiah Valley]{.underline}, 911 F.2d at 265 (no final
agency action where party is "not yet subject to any order requiring
them to act"); [see also]{.underline} Ohio [Cinemark]{.underline} Order
at 8 (Mar. 22, 2000). This language by the Access Board mentioning
recent litigation by the Department has no bearing on whether there was
final agency action in this case.

Third, Defendant cites a Texas magistrate judge's oral recommendation in
[Cinemark v. Department of Justice]{.underline}, No. 99-CV-0183 (N.D.
Tex.) that the United States had engaged in final agency action.
[See]{.underline} Def.'s Opp'n Br. at 12. Review of that recommendation
is currently pending before a District Court in Texas, and the United
States argued against its adoption at a hearing on April 21, 2000. A
recommendation by the Texas Magistrate Judge---made orally on September
17, 1999---does not constitute an intervening change in law, both
because it occurred prior to this Court's December 17^th^ written order
and because it currently does not have the status of law.
[See]{.underline} 28 U.S.C. § 636(b)(1) (providing that magistrate
judges may be designated to conduct hearings on a motion to dismiss and
to submit "[proposed]{.underline} findings and recommendations," which
the district court is to review [de novo]{.underline} if there are
objections) (emphasis added). Furthermore, at least one other district
court has adopted the reasoning of this Court's Order and dismissed with
prejudice all APA-based claims brought by another movie theater chain
against the Department, holding that the Department's actions did not
constitute final agency action. [See]{.underline} Ohio
[Cinemark]{.underline} Order at 6 (N.D. Ohio Mar. 22, 2000). As the
Court correctly found, the Department of Justice

> has no inherent power under the Act to adjudicate. . . . If the Court
> were to adopt Defendant's position \[on finality\], the United States
> and the Attorney General would be subject to suit any time the
> Attorney General initiated an investigation or filed a complaint based
> on the belief that some party was unlawfully discriminating against
> persons with disabilities. This is an untenable position which this
> Court declines to adopt.[^6]

[See]{.underline} [id.]{.underline} at 8 (citing [FTC v. Standard Oil
Co.]{.underline}, 449 U.S. 232, 239 (1980)). Likewise in this case,
Defendant STK's contention that the United States has violated the APA
merely by offering a plain language interpretation of the statute,
[see]{.underline} Def.'s Opp'n Br. at 22-23, would turn every
enforcement action into an APA challenge, because enforcing the law
necessarily requires an interpretation of what the law means. As the
Supreme Court has warned, "\[j\]udicial review . . . should not be a
means of turning prosecutor into defendant." [FTC v. Standard Oil
Co.]{.underline}, 449 U.S. 232, 243, 101 S. Ct. 488, 495, 66 L. Ed. 2d
416 (1980); [see also]{.underline} [Dow Chemical v. United States
EPA]{.underline}, 832 F.2d 319, 324 n. 30 (5^th^ Cir. 1987). In short,
there has been no factual or legal development that would warrant
departing from the law of the case on the APA question.

**III. Defendant Has Identified No Action by the Department of Justice
that Constitutes Final Agency Action.**

The APA can provide a waiver of sovereign immunity in suits seeking
judicial review of a final agency action, where some other statute
provides subject matter jurisdiction over the United States.[^7]
[See]{.underline} [Gallo Cattle Co.]{.underline}, 159 F.3d at 1198. The
APA, however, does not make every agency action subject to judicial
review. [See]{.underline} [Taylor-Callahan-Coleman Counties Dist. Adult
Probation Dep't v. Dole]{.underline}, 948 F.2d 953, 956 (5^th^ Cir.
1991); [see also]{.underline} [Heckler]{.underline}, 470 U.S. at 828.
For Defendant STK to have a claim under the APA, it must identify "final
agency action." 5 U.S.C. § 704; [see also]{.underline} [Ukiah Valley
Med. Ctr.]{.underline}, 911 F.2d at 264. As fully briefed previously,
there has been no final agency action here. [See]{.underline} United
States' Initial Br. at 12-17.

Citing [Abbott Laboratories v. Gardner]{.underline}, 387 U.S. 136,
140-41, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967),[^8] STK argues
that the Court should permit its APA-based counterclaim because "\[t\]he
Supreme Court has directed the federal courts to accord a 'generous' and
'hospitable' interpretation to the review provisions of the APA." Def.'s
Opp'n Br. at 13. [Abbott Laboratories]{.underline} does not eliminate
the requirement that an APA claim can only challenge final agency
action. As the Ninth Circuit has explained, "a finding of finality, or
an applicable exception, is essential when the court's reviewing
authority depends on one of the many statutes permitting appeal only of
'final' agency actions, such as § 10 of the APA, 5 U.S.C. § 704."[^9]
[Ukiah Valley Medical Ctr.]{.underline}, 911 F.2d at 264. Administrative
actions are only final and thereby reviewable under the APA when the
agency action imposes an obligation, denies a right, or fixes a legal
relationship that creates a consummation of the administrative process.
[Id.]{.underline}

None of the Department's actions in this case constitute final agency
action, and Defendant has failed to identify any new specific action
that might qualify as final agency

action that has not already been rejected by the December 17^th^ Order
or by binding Supreme Court and Ninth Circuit precedent.
[See]{.underline} December 17^th^ Order at 14 ("Thus, viewed separately
or in combination, the matters \[Defendant\] AMC characterizes as final
agency action are not the kind of actions that are subject to judicial
review under the APA."). [See also]{.underline} United States' Initial
Br. at 12-17.

In its opposition brief, Defendant asserts that it is not challenging
the United States' filing of this lawsuit but rather the United States'
"adoption of new line of sight requirements." Def.'s Opp'n Br. at 22. As
noted previously, [see]{.underline} page 4 [supra]{.underline}, the
United States has not adopted SMPTE or any other highly technical line
of sight requirements. Instead, the United States' is alleging that the
Defendants have violated the plain language of Standard 4.33.3, which
requires that movie theaters provide to patrons who use wheelchairs
lines of sight "comparable" to those offered to the general public.
Defendant fails to identify any specific action that the United States
has taken other than its nebulous assertion that the United States has
purportedly "adopt\[ed\]" new line of sight requirements. To assert an
APA claim, Defendant has an obligation to identify a specific final
agency action that provides the basis for its claim. [See]{.underline}
[ONRC Action v. Bureau of Land Management]{.underline}, 150 F.3d 1132,
1137 (9^th^ Cir. 1998) (rejecting APA claim on the ground that party
"cannot point to a deliberate decision by \[the agency\] to act or not
to take action"); [see also]{.underline} [Lujan v. National Wildlife
Federation]{.underline}, 497 U.S. 871, 891, 110 S. Ct. 3177, 111 L. Ed.
2d 695 (1990) ("Under the terms of the APA, respondent must direct its
attack against some particular 'agency action' that causes it harm.");
[Ecology Center, Inc. v. United States Forest Serv.]{.underline}, 192
F.3d 922, 926 (9^th^ Cir. 1999) (requiring plaintiff to identify
"concrete action").

The December 17^th^ Order rejected AMC's attempts to label the United
States' actions as "final agency action," including the United States'
filing of [amicus]{.underline} briefs articulating its interpretation of
Standard 4.33.3, its attempts to settle cases with theater owners, and
the initiation of litigation such as the present action.
[See]{.underline} December 17^th^ Order at 8, 11. STK fails to identify
any new or different specific action taken by the Department that
qualifies as final agency action. The Ninth Circuit requires that a
party bringing an APA claim must point to an "identifiable agency order,
regulation, policy or plan that may be subject to challenge as final
agency action." [See]{.underline} [ONRC Action]{.underline}, 150 F.3d at
1136. Defendant simply challenges the Department's plain language
interpretation. [See]{.underline} Def.'s Opp'n Br. at 22-23. Defendant's
argument, however, has already been rejected by the Court.
[See]{.underline} Dec. 17^th^ Order at 11 ("The filing of the brief \[in
[Lara]{.underline}\] and [articulation of an interpretation of Standard
4.33.3]{.underline}, therefore, did not constitute final agency action
subject to judicial review.") (emphasis added). As noted previously, the
Department's interpretation fixes no rights and imposes no legal
obligations; only a court order can require STK to follow the law.
[See]{.underline} 42 U.S.C. §§ 12188(b)(2); Ohio [Cinemark]{.underline}
Order (Mar. 22, 2000) ("Any order for relief, damages, or levying of a
fine can only be made by the district court, not by the Attorney
General."). Therefore, the Department's interpretation is not final
agency action. [See]{.underline} [Gallo Cattle Co.]{.underline}, 159
F.3d at 1199; [Bennett v. Spear]{.underline}, 520 U.S. 154-, 177-78, 117
S. Ct. 1154, 137 L. Ed. 2d 281 (1997).

STK repeats an argument made previously by AMC that the Court should
allow its APA claim because the Department will argue that its
interpretation of Standard 4.33.3 is entitled to deference.
[See]{.underline} Def.'s Opp'n Br. at 18. The fact that the views of the
Department of Justice on the meaning of the ADA and its implementing
regulations are entitled to deference[^10] does not change the analysis
of whether final agency action exists and therefore whether sovereign
immunity has been waived. The deference accorded to the Department as a
matter of law does not mean that every time the Department expresses its
views it subjects itself to an APA lawsuit. Rather, the appropriate step
for a litigant like STK that disagrees with the Department's views is to
convince the Court of the accuracy of its own contrary interpretation.

Defendant cites for support [National Automatic Laundry & Cleaning
Council]{.underline}, 443 F.2d 689 (D.C. Cir. 1971), for the proposition
that the United States has engaged in final agency action. The December
17^th^ Order has already rejected this contention, holding that
communicating with ten members of the theater industry nationwide does
not establish a situation similar to that in the [National Automatic
Laundry]{.underline} case. [See]{.underline} December 17^th^ Order at
17. Furthermore, the facts of this case differ from [National Automatic
Laundry]{.underline}. In that case, an official at the Department of
Labor issued a ruling in 1963 that coin-operated laundrettes were not
covered under one exemption of the Fair Labor Standards Act, 29 U.S.C. §
201, [et seq.]{.underline} for laundry establishments, but that they
might qualify for another exemption for conventional retail or service
establishments. [See]{.underline} 443 F.2d at 691-92. Following
amendments to the Fair Labor Standards Act specifying that laundry
establishments could not qualify for the retail exemption, an industry
group wrote to the head of an agency at the Labor Department asking if
the prior 1963 ruling still applied. [Id.]{.underline} at 691-92, 700.
The official responded with a new ruling finding that the amendments
covered coin-operated laundrettes and therefore the old ruling no longer
was good law. [Id.]{.underline} at 692. The Court found the second
ruling final agency action, noting that "\[w\]hen a published
interpretation represents the initial views of an agency, approved by
the Commission or person who heads the agency, when it is the product of
the process provided by the agency for taking into account the position
of agency staff as well as the outside presentation, when the
interpretation is not labeled as tentative or otherwise qualified by
arrangement for reconsideration," the agency action is final.
[Id.]{.underline} at 702. [But see]{.underline} [Zaharakis v.
Heckler]{.underline}, 744 F.2d 711, 712 (9^th^ Cir. 1984) (holding that
interpretive rules do not "grant rights \[or\] impose obligations");
[Batterton v. Marshall]{.underline}, 648 F.2d 694, 701-02 (D.C. Cir.
1980) (same).

The narrow factual situation presented by [National Automatic
Laundry]{.underline} does not apply to this case: the only final agency
action here was the promulgation of Standard 4.33.3 in 1991, which
Defendant does not challenge. The Department's decision to enforce the
plain language of the law simply does not fall within the facts provided
by [National Automatic Laundry]{.underline} as an example of an agency
issuing a published ruling to an industry. The Department has issued no
ruling signed by the head of the agency that announces a new standard in
conflict with a prior published ruling. [See]{.underline}
[id.]{.underline} at 702.

Indeed, the Fifth Circuit distinguished [National Automatic
Laundry]{.underline} in the case [Taylor-Callahan-Coleman Counties Dist.
Adult Probation Dep't v. Dole]{.underline}, 948 F.2d 953 (5^th^ Cir.
1991). In [Taylor-Callahan-Coleman]{.underline}, a county investigated
by the Department of Labor for violations of the Fair Labor Standards
Act sought declaratory judgment against the agency by claiming that the
Department had issued inconsistent opinion letters without following the
notice and comments procedures required by the APA. [See]{.underline}
[id.]{.underline} at 954-55, 957. The Court found that such advisory
opinions were "neither final nor binding on employers or employees" and
were limited to the factual situation presented by the requesting party.
[Id.]{.underline} at 957. The Court observed that such "opinions are
intended to guide DOL officials in similar situations, \[and therefore\]
they surely are carefully reasoned. Nevertheless it is the regulations,
not the opinion letters, which fix rights. . . ." [Id.]{.underline} at
958. It distinguished [National Automatic Laundry]{.underline}, without
reaching the question of whether it conflicted with Fifth Circuit
precedent, [id.]{.underline} at 958, by observing that the opinion
letters in [Taylor-Callahan-Coleman]{.underline} were not directed at a
trade association and addressed inquiries specific to individual
entities. [See]{.underline} [id.]{.underline} at 958-59.

Similarly in this case, the Department's attempts to negotiate
settlements with individual theaters owners whom it believes to be in
violation of the plain language of the law do not constitute final
agency action that binds the industry.[^11] These efforts "do not have
the status of law with penalties for noncompliance." [See]{.underline}
[id.]{.underline} at 959. Indeed, this Court has already determined that
investigating and litigating against approximately ten members of the
theater industry nationwide "does not establish that DOJ has engaged in
final agency action." [See]{.underline} December 17^th^ Order at 17.
This ruling is consistent with the Ninth Circuit's determination that
negotiations "are not final action, \[and\] therefore are not
reviewable." [See]{.underline} [Association of Public Agency Customers
v. Bonneville Power Admin.]{.underline}, 126 F.3d 1158, 1184 (9th Cir.
1997).

The case of [Independent Broker-Dealers' Trade Ass'n v.
SEC]{.underline}, 442 F.2d 132 (D.C. Cir. 1970) cited by STK is also
distinguishable. [See]{.underline} Def.'s Opp'n Br. at 20. In that case,
the chairman of the SEC made a written request pursuant to the
Securities Exchange Act that the New York Stock Exchange change the
manner in which minimum commission rates were set. [Id.]{.underline} at
136. The Exchange responded with a counterproposal that included
abolishing "customer-directed give-ups of brokerage fees," in which a
securities broker surrendered part of his or her commission to another
broker. [Id.]{.underline} at 136, 134-35. This practice developed in
part to avoid the Exchange's rigid minimum rate schedule.
[Id.]{.underline} at 135. The Commission accepted the counterproposals,
and the Exchange voted to abolish these "give-ups." An association of
securities broker sued the SEC, but not the Exchange, for ending
"give-ups." A majority of the panel held that although the court had
jurisdiction under the APA to review the association's APA claim, the
merits of the association's arguments were "insubstantial;" the court
therefore dismissed the association's complaint with prejudice.
[Id.]{.underline} at 387.

On the jurisdiction issue, the majority held that the SEC "had injected
itself, without legal justification, into an area of business
relationships and ha\[d\] asked one of the parties to the relationship
to terminate or modify it." [Id.]{.underline} at 145. In this case,
however, the Department is simply trying to enforce the plain language
of the regulation, and to allow an APA claim every time the Department
attempted to enforce the law would eviscerate the protections afforded
to individuals with disabilities under the ADA. This case is further
distinguished from [Independent Broker-Dealers]{.underline} because
Defendant STK has a "remedy" in this case---it can offer its own
interpretation of what it believes Standard 4.33.3 requires. In
contrast, in [Independent Broker-Dealers]{.underline}, the Court found
that the association had no available alternative remedy.
[Id.]{.underline} at 140. Finally, to the extent the majority opinion
holds that recommendations by an agency constitute final agency action,
the Ninth Circuit has rejected that contention. [See]{.underline}
[Ecology Center, Inc.]{.underline}, 192 F.3d at 925 ("agency
recommendations are not reviewable as final agency actions").

Although Defendant claims that the Ninth Circuit has recognized that
informal agency action can constitute final agency action, Def.'s Opp'n
Br. at 21, the Ninth Circuit has not abandoned the requirement that
agency action is only reviewable if it has the indicia of finality:
[i.e.]{.underline}, that it is an agency action "by which rights or
obligations have been determined, or from which legal consequences will
flow." [Gallo Cattle Co.]{.underline}, 159 F.3d at 1199; [see
also]{.underline} [Ecology Center, Inc.]{.underline}, 192 F.3d at 922.
Therefore, Defendant's attempts to characterize the Department's
interpretation as "informal agency action," [see]{.underline} Def.'s
Opp'n Br. at 21, does not change the fact that the United States'
interpretation does not bind Defendant's activities. For example,
[Southern California Aerial Advertisers' Ass'n v. FAA]{.underline}, 881
F.2d 672, 675 (9^th^ Cir. 1989), involved a letter by the FAA banning a
route frequently used by fixed-wing aircraft. The Court found this
letter to be a final agency action for purposes of conferring
jurisdiction. [Id.]{.underline} at 676. In contrast, in this case it is
Standard 4.33.3, and not the Department's plain language interpretation,
that binds Defendant's conduct, and Defendant has not challenged the
promulgation of Standard 4.33.3.

Finally, STK errs when its suggests that the Department "provided
theatre owners with its interpretation of Section 4.33.3 line of sight
requirements" in the settlement agreement with United Artist, somehow
implicating the APA analysis in this case. [See]{.underline} Def.'s
Opp'n Br. at 8. The Department's settlement agreement with United
Artists is nothing more than a contract embodying a compromise on terms
mutually agreed upon by the parties to that agreement. It is not, and
does not purport to be, a definitive statement of the Department's
position on the interpretation of Standard 4.33.3 having the status of
law, nor can it have the effect of amending the plain language of the
regulation. Since STK was not a party to the settlement agreement and
since the settlement agreement can be in no way binding on, or
enforceable against, STK, the Department's entry into the settlement
agreement is simply not an action "by which \[STK's\] rights or
obligations have been determined, or from which legal consequences \[for
STK\] will flow." [Gallo Cattle Co.]{.underline}, 159 F.3d at 1199.

**IV. Further Discovery Will Not Reveal Any Final Agency Action**

Rather than identifying a specific action that it believes constitutes
final agency action, STK claims that further discovery is needed because
the United States, and presumably STK, "cannot possibly know what
discovery will reveal." Def.'s Opp'n Br. at 14. STK has not alleged a
single new fact that the Department took "final agency action" after the
December 17^th^ Order when the Court held that there was no final agency
action in this case. Defendant is not entitled to a discovery fishing
expedition in an attempt to create a cause of action where none exists,
especially because STK "points to nothing tangible that it could
explore" through additional discovery.[^12] [See]{.underline} [Grolier
Inc. v. FTC]{.underline}, 699 F.2d 983, 987 (9^th^ Cir. 1983).

Defendant cannot even identify a specific, concrete action taken by the
Department that constitutes final agency action, as required by Supreme
Court and Ninth Circuit precedent. [See]{.underline} [National Wildlife
Federation]{.underline}, 497 U.S. at 891; [Ecology Center,
Inc.]{.underline}, 192 F.3d at 926; [ONRC Action]{.underline}, 150 F.3d
at 1137. Supported by binding precedents, this Court has already found
that the only specific action alleged to have been taken by the
Department in enforcing Standard 4.33.3 in movie
theaters---[i.e.]{.underline} filing briefs, initiating lawsuits, or
entering settlement negotiations---do not constitute final agency
action.[^13] The Court should therefore dismiss STK's counterclaim with
prejudice.

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

Because the Department has not engaged in final agency action, the court
need not reach the question of whether an adequate remedy in court
exists because the Court lacks jurisdiction to hear STK's APA-based
counterclaim. [See]{.underline} 5 U.S.C. § 704; [see also]{.underline}
[Gallo Cattle Co.]{.underline}, 159 F.3d at 1198; [New Jersey Hosp.
Ass'n v. United States]{.underline}, 23 F. Supp. 2d 497, 500, 501 (D.
N.J. 1998). Even if the Department's interpretation of Standard 4.33.3
were final agency action, however, the Court still lacks jurisdiction
because STK has an \"adequate remedy" in a court. 5 U.S.C. § 704; [see
also]{.underline} [Marshall Leasing, Inc. v. United States]{.underline},
893 F.2d 1096, 1110 (9^th^ Cir. 1990). In defending this action, STK is
free to argue that the Department's interpretation of Standard 4.33.3 is
incorrect, and therefore should not be applied to STK.
[See]{.underline}, [e.g.]{.underline}, [New Jersey Hospital
Ass'n]{.underline}, 23 F. Supp. 2d at 51.

Defendant asserts that the mere fact that the Department has filed a
lawsuit against it causes it harm to its reputation that proves it has
no adequate remedy at law. [See]{.underline} Def.'s Opp'n Br. at 23-24.
This standard would turn every lawsuit by the Department of Justice to
enforce its federal civil rights laws into an APA-claim, if the harm to
reputation of being accused of discriminating were sufficient grounds to
invoke this Court's jurisdiction under the APA. This argument has been
soundly rejected by the courts. [See Ukiah Valley Medical
Ctr.]{.underline}, 911 F.2d at 264 (holding that conclusory statements
of party that litigation creates a cloud of uncertainty that hurts
company is not sufficient effect to show final agency action);
[California ex rel. Christensen v. FTC]{.underline}, 549 F.2d 1321, 1323
(9^th^ Cir. 1977) (holding that litigation expenses are the normal
incident of agency process, do not constitute irreparable harm, and are
insufficient to provide basis for judicial intervention pursuant to
APA); [California Dep't of Educ. v. Bennett]{.underline}, 833 F.2d 827,
834 (9^th^ Cir. 1987) (possible financial loss is not sufficient to
provide jurisdiction of APA claim); [First Nat\'l Bank v.
Steinbrink]{.underline}, 812 F. Supp. 849, 853-54 (N.D. Ill. 1993)
(expense or inconvenience of defending oneself does not make defense an
inadequate remedy).

[San Antonio Community Hospital v. Southern California Dist. Council of
Carpenters]{.underline}, 125 F.3d 1230 (9^th^ Cir. 1997) is not to the
contrary. In that case, the Court held that a union's fraudulent
statements suggesting that a hospital was infested with rodents
warranted a preliminary injunction against the union. [Id.]{.underline}
at 1235-36. As a prerequisite to allowing an injunction, the Court
required a showing of irreparable injury and no adequate legal remedy.
[Id.]{.underline} at 1237. The Court noted that the hospital had
experienced a 200 patient per month drop in maternity preadmissions
since the Union began carrying a banner near the hospital alleging that
the hospital was "full of rats." [Id.]{.underline} at 1238, 1236. This
case does [not]{.underline} stand for the proposition that every
potential harm to reputation is irreparable or that there will be a lack
of an adequate remedy at law. Nor does the case provide any guidance in
determining whether an agency action is final for purposes of conferring
jurisdiction under the APA.

**CONCLUSION**

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

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

Dated: June \_\_, 2000

**PROOF OF SERVICE**

I, John Albert Russ IV, declare:

I am over the age of 18 and not a party to the within action. I am
employed by the U.S. Department of Justice, Civil Rights Division,
Disability Rights Section. My business address is P.O. Box 66738,
Washington, D.C. 20035-6738.

On June \_\_\_, 2000, I served

> **PLAINTIFF UNITED STATES' REPLY MEMORANDUM IN SUPPORT OF ITS MOTION
> TO DISMISS DEFENDANT STK'S COUNTERCLAIM**

on each person or entity named below by sending a facsimile copy to
their office, and by enclosing a copy in an envelope addressed as shown
below and by sending it via overnight mail to the following addresses:

Date and Place of mailing: June \_\_\_, 2000, Washington, D.C.

Person(s) and/or Entity(ies) to Whom mailed:

> Gregory F. Hurley, Esq.
>
> Kutak Rock
>
> 620 Newport Ctr. Drive, Suite 450
>
> Newport Beach, CA 92660
>
> Robert Harrop, Esq.
>
> Lathrop & Gage L.C.
>
> 2345 Grand Boulevard
>
> Kansas City, MO 64108-2684

I declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.

Executed on: June \_\_\_, 2000, at Washington, D.C.

> [                                             ]{.underline}
>
> John Albert Russ IV

[^1]: Plaintiff United States' Memorandum in Support of Its Motion to
    Dismiss STK's Counterclaim 2-4 (hereinafter "United States' Initial
    Brief").

[^2]: [But see]{.underline} [Paralyzed Veterans of America v. D.C.
    Arena, L.P.]{.underline}, 117 F.3d 579 (D.C. Cir. 1997), [cert.
    denied]{.underline} [sub nom.]{.underline}, [Pollin v. Paralyzed
    Veterans of America]{.underline}, 523 U.S. 1003 (1998).

[^3]: Likewise, the United States has [not]{.underline} "promulgat\[ed\]
    new line of sight requirements." [See]{.underline} Def.'s Opp'n Br.
    at 18. The Standard being applied in this case is the plain language
    of Standard 4.33.3.

[^4]: Despite Defendant's assertions to the contrary, the United States
    has interpreted Standard 4.33.3 consistently. The Department
    articulated its plain-language interpretation of Standard 4.33.3 as
    applied to stadium-style movie theaters in an [amicus]{.underline}
    brief filed in 1998 in a private action against another motion
    picture theater operator, [Lara v. Cinemark USA]{.underline}, No.
    EP-97-CV-502-H (W.D. Tex.), and in a brief in 1999 in [Lonberg v.
    Sanborn Theatres, Inc.]{.underline}, No. CV-97-6598 AHM (BQRx) (C.D.
    Cal) (The United States intervened in [Sanborn]{.underline}, a case
    brought by a private plaintiff.). It is Standard 4.33.3, however,
    and not the Department of Justice's interpretation of that Standard,
    that has binding legal effect.

[^5]: A District Court in Texas is currently reviewing the oral
    recommendation of a magistrate judge that the Department's actions
    were final agency action subject to review. [Cinemark v. Department
    of Justice]{.underline}, No. 99-CV-0183 (N.D. Tex.). The hearing on
    this issue before the District Court was held April 21, 2000.

[^6]: Cinemark's motion to reconsider the Court's March 22^nd^ Order is
    pending, and the United States has opposed the motion.

[^7]: Jurisdiction can be conferred under 28 U.S.C. § 1331, which
    permits challenge to federal agency action for claims arising under
    federal law, unless a statute expressly precludes review.
    [See]{.underline} [Gallo Cattle Co.]{.underline}, 159 F.3d at 1198.
    In this case, 5 U.S.C. § 704 permits review of "final" agency
    actions.

[^8]: In 1977, the Supreme Court in [Califano v. Sanders]{.underline},
    430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977) overruled the
    suggestion in [Abbott Laboratories]{.underline} that the APA
    provided an independent grant of subject matter jurisdiction.

[^9]: The [Ukiah]{.underline} Court noted that "\[f\]inality in
    administrative law is sometimes treated as an aspect of the doctrine
    of ripeness, and sometimes as an independent jurisdictional
    requirement." [Id.]{.underline} at 264 n.1. The Court added,
    however, that "while exhaustion and ripeness are judge-made
    prudential doctrines, finality is, where applicable, a
    jurisdictional requirement." [Id.]{.underline} (citations omitted).

[^10]: [See]{.underline}, [e.g.]{.underline},[Olmstead v.
    Zimring]{.underline}, 527 U.S. 581, \_\_\_, 119 S. Ct. 2176, 2185-86
    & 2185 n.9 (1999); [see also]{.underline} [Bragdon v.
    Abbott]{.underline}, 524 U.S. 624, 642, 118 S. Ct. 2196, 141 L. Ed.
    2d 540 (1998); [Auer v. Robbins]{.underline}, 519 U.S. 452, 461-62,
    117 S. Ct. 095 (1997).

[^11]: On April 12, 2000, this Court held in a written order that
    settlement negotiations between the United States and other theaters
    are privileged and not subject to discovery.

[^12]: It is axiomatic that in cases alleging APA violations, review is
    typically limited to the administrative record, rather than creating
    a new record through discovery. [See]{.underline} [Camp v.
    Pitts]{.underline}, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244, 36 L.
    Ed. 2d 106 (1973); [Friends of the Earth v. Hintz]{.underline}, 800
    F.2d 822, 828 (9^th^ Cir. 1986). Nonetheless, the Department has
    provided Defendants with thousands of pages of discovery in response
    to Defendants' expansive discovery requests relating to their APA
    counterclaim, [see]{.underline} Declaration of Stephanie L.
    Stoltzfus, ¶¶ 2-5 (Exhibit A) (previously filed as with the United
    States' April 28^th^ Opposition Brief to Defendant's [Ex
    Parte]{.underline} Application).

    Furthermore, in May the Magistrate Judge tentatively denied much of
    Defendants' motion to compel further discovery, finding that many of
    the documents Defendants sought are privileged or not relevant. The
    Magistrate invited the parties to comment on his proposed written
    order; the parties have submitted their comments, and the Department
    anticipates a final order soon. Regardless of the ultimate outcome
    of this pending discovery dispute, however, Defendants have not
    identified any agency action that qualifies as final for purposes of
    their APA counterclaims.

[^13]: For further analysis of this issue, see the Department's initial
    brief at 17-19, and this Court's December 17^th^ Order at 7-14.