Number range CHAPTERRALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN S. GORDON

United States Attorney

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

LEON M. WEIDMAN

Assistant United States Attorney

MICHELE MARCHAND

Assistant United States Attorney

California Bar No. 93390

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-2727

Facsimile: (213) 894-7819

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

KRISTAN S. MAYER

JOSEPH C. RUSSO

Trial Attorneys

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Disability Rights Section

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

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, ) REPLY MEMORANDUM OF

) PLAINTIFF UNITED STATES IN

) SUPPORT OF MOTION FOR PARTIAL

v\. ) SUMMARY JUDGMENT

) RE: LINE OF SIGHT ISSUES

)

AMC ENTERTAINMENT, INC., ) DATE: Nov. 18, 2002

[et]{.underline} [al]{.underline}., ) TIME: 10:00 a.m.

) JUDGE: Hon. Florence-Marie Cooper

)

Defendants. )

)

TABLE OF CONTENTS

**INTRODUCTION** 1

**ARGUMENT**

A. [AMC Does Not Dispute Material Facts Underlying the United States'
Partial\
Summary Judgment Motion Concerning Lines of Sight In Its Stadium-Style\
Movie Theaters]{.underline} 1

B. [AMC Ignores Well-Established Administrative Law Precedents
Counseling\
That the Department of Justice's Interpretation of Its Own ADA
Regulations,\
As Well As Its Enforcement Decisions, Are Entitled to Substantial
Deference]{.underline} 4

> 1\. *The Department of Justice's Reasonable and Consistent
> Interpretation\
> of Standard 4.33.3 Warrants Substantial Deference By This Court* 4
>
> a\. AMC Mistakenly Assumes that the Access Board "Drafted"\
> Standard 4.33.3 5
>
> b\. The Department Has Consistently Interpreted Standard 4.33.3 7
>
> c\. The United States' Summary Judgment Memorandum Does Not,\
> as AMC Asserts, Present a "New" Interpretation of Standard 4.33.3 11
>
> 2\. *The Department of Justice Has Substantial Discretion To\
> Determine How Best to Regulate and Enforce Standard 4.33.3* 13

C. [AMC Already Has Been Afforded Ample Discovery In This Action and
This Court's Prior Discovery Rulings Are Now Law of the Case, Thus
Precluding AMC from Re-Litigating Such Matters In the Context of These
Summary Judgment Proceedings]{.underline} 15

D. [AMC Misapprehends Both the Role and Purpose of the United States'
Trial Experts]{.underline} 20

E. AMC Fundamentally Misconstrues the Department's Interpretation of
Standard\
4.33.3\'s Integration Requirement as Mandating Wheelchair Access to
"Every\
[Square Inch of AMC's Theaters"]{.underline} 23

**CONCLUSION** 25

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

> *Arkansas v. Oklahoma*,
>
> 503 U.S. 91, 112 S. Ct. 1046 (1992) 7
>
> *Arnold v. United Artists Theater Circuit, Inc.*,
>
> 158 F.R.D. 439 (N.D. Cal. 1994) 8
>
> *Auer v. Robbins*,
>
> 519 U.S. 452, 117 S. Ct. 905 (1997) 9, 15,
>
> 16
>
> *Bowen v. Georgetown University Hospital*,
>
> 488 U.S. 204, 109 S. Ct. 468 (1988) 9
>
> *Bullwinkel v. Federal Aviation Admin.*,
>
> 23 F.3d 167 (7th Cir. 1994) 14
>
> *Fiedler v. American Multi-Cinema, Inc.*,
>
> 871 F. Supp. 35 (D.D.C. 1994) 6, 8
>
> *Ford Motor Co. v. Federal Trade Commission*,
>
> 673 F.2d 1008 (9th Cir. 1982), [cert]{.underline}.
> [denied]{.underline}, 459 U.S. 999 (1982) 14
>
> *Hertzberg v. Dignity Partners, Inc.*,
>
> 191 F.3d 1076 (9th Cir. 1999) 9
>
> *International Brotherhood of Teamsters v. Daniel*,
>
> 439 U.S. 551, 99 S. Ct. 790 (1979) 14
>
> *Klem v. County of Santa Clara*,
>
> 208 F.3d 1085 (9th Cir. 2000) 9
>
> *Lara v. Cinemark, U.S.A.*,
>
> 207 F.3d 783 (5th Cir.), [cert]{.underline}. [denied]{.underline}, 531
> U.S. 944 (2000) 6
>
> *Martin v. Occupational Safety and Health Rev. Commission*,
>
> 499 U.S. 144, 111 S. Ct. 1171 (1991) 7, 14
>
> *Meineker v. Hoyts Cinemas Corp.*,
>
> 216 F. Supp. 2d 14 (N.D.N.Y. 2002) 23
>
> *Mendenhall v. National Transport Safety Board*,
>
> 213 F.3d 464 (9th Cir. 2000) 19
>
> *Morrison v. Walker*,
>
> 404 F.2d 1046 (9th Cir. 1968) 4
>
> *N.L.R.B. v. Bell Aerospace Co.*,
>
> 416 U.S. 267, 94 S. Ct. 1757 (1974) 14
>
> *Paralyzed Veterans of America v. D.C. Arena L.P.*,
>
> 117 F.3d 579 (D.C. Cir. 1997), [cert]{.underline}.
> [denied]{.underline}, 523 U.S. 1003 (1998) 6
>
> *Patel v. I.N.S.*,
>
> 638 F.2d 1199 (9th Cir. 1980) 14
>
> *Pauley v. BethEnergy Mines, Inc.*,
>
> 501 U.S. 680, 111 S. Ct. 2524 (1991) 7
>
> *Pennsylvania Department of Corrections v. Yeskey*,
>
> 524 U.S. 206, 118 S. Ct. 1952 (1998) 13
>
> *Rainsong Co. v. F.E.R.C.*,
>
> 151 F.3d 1231 (9th Cir. 1998), [cert]{.underline}.
> [denied]{.underline}, 528 U.S. 811 (1999) 23
>
> *S.E.C. v. Chenery Corp.*,
>
> 332 U.S. 194, 67 S. Ct. 1575 (1947) 14
>
> *Taylor v. List*,
>
> 880 F.2d 1040 (9th Cir. 1989) 4
>
> *Thomas Jefferson University v. Shalala*,
>
> 512 U.S. 504, 114 S. Ct. 2381 (1994) 7
>
> *United States v. Alexander*,
>
> 106 F.3d 874 (9th Cir. 1997) 19
>
> *United States v. Lummi Indian Tribe*,
>
> 235 F.3d 443 (9th Cir. 2000) 19

**DOCKETED CASES**

> *Lonberg v. Sanborn Theaters, Inc.*,
>
> C.A. No. CV-97-6598 10
>
> *United States v. Cinemark USA, Inc.*,
>
> C.A. No. 1:99CV-705 (N.D. Ohio) 10
>
> *United States v. Hoyts Cinemas Corp., et al.*,
>
> C.A. No. 00-12567-WGY (D. Mass.) 10

**STATUTES**

> 5 U.S.C. § 551 [et]{.underline} [seq]{.underline}. 17
>
> 5 U.S.C. §§ 702 15
>
> 5 U.S.C. §§ 706 15
>
> 42 U.S.C. §§ 12186(b) 19
>
> 42 U.S.C. §§ 12188(b) 19
>
> 42 U.S.C. §§ 12206 19
>
> 56 Fed. Reg. 35,408, 35,411 (1991) 6
>
> Fed. R. Civ. P. 702 19

**MISCELLANEOUS**

> George Santayana, [The Life of Reason]{.underline} (1905) 18
>
> 10B Charles A. Wright [et]{.underline} [al]{.underline}., [Federal
> Practice and Procedure]{.underline} § 2739 (1998) 4
>
> Department of Justice, ADA Technical Assistance Manual (1993 & Supp
> 1994) 24
>
> Architectural and Transportation Barriers Compliance Board,
>
> ADAAG Manual: A Guide to the Americans With Disabilities Act
>
> Accessibility Guidelines (1998) 24

**INTRODUCTION**

As with many of its other briefs in this action, the summary judgment
opposition memorandum of defendants AMC Entertainment, Inc. and American
Multi-Cinema, Inc. \[hereinafter collectively referred to as "AMC"\] is
littered with factual and legal inaccuracies. [See]{.underline} Mem. of
Points and Auth. In Opp. to Plntf.'s Motion for Partial Sum. Judgment
Re: Lines of Sight Issues Or, In the Alternative A Motion for
Continuance of the Sum. Judgment Hearing Pending Completion of the Add'l
Discovery (filed Nov. 4, 2002) (Docket \# 373) ("AMC SJ Opp. Mem."). In
this memorandum, AMC, for example, mischaracterizes the United States'
position with respect to the interpretation of Standard 4.33.3, ignores
the full history of fact discovery in this action, and makes bald
factual assertions supported only by the declaration of AMC's trial
counsel. Yet perhaps the most remarkable aspect of AMC's summary
judgment papers is that AMC does not dispute - and thus concedes -
significant and material aspects of the United States' summary judgment
motion concerning the seating layout of its stadium-style theaters, the
meaning of the term "lines of sight," and the inferior quality of the
lines of sight afforded patrons who use wheelchairs where, in the
overwhelming majority of AMC's stadium-style theaters, they are
relegated to seats on the traditional, sloped-floor portion of the
theater. Taken together, these considerations strongly counsel in favor
of this Court granting the United States' motion for partial summary
judgment.

ARGUMENT

**A. [AMC Does Not Dispute Material Facts Underlying the United States'
Partial Summary Judgment Motion Concerning Lines of Sight In Its
Stadium-Style Movie Theaters]{.underline}**

Perhaps the most remarkable aspect of AMC's opposition memorandum (and
its accompanying Statement of Genuine Issues) is the fact that AMC does
not dispute significant and material aspects of the United States'
summary judgment motion. First, and perhaps most importantly, AMC's
opposition memorandum does not even discuss -- let alone distinguish --
its damning admission in a May 1995 memorandum filed in the [Fiedler v.
AMC]{.underline} litigation that, in the context of Standard 4.33.3,
"\[l\]ines of sight for a patron in an auditorium are measured with
reference to the horizontal and vertical angles of view the eye must
encompass in seeing the screen." [See]{.underline}, [e.g]{.underline}.,
Mem. In Support of Pl. United States' Motion for Partial Sum. Jdgmnt.
Re: Line of Sight Issues 2, 17, 19-20 (filed Oct. 28, 2002) (Docket \#
367) ("US SJ Mem."); Mem. of Pl. United States In Opp. to AMC's Motion
for \[Partial\] Summary Judgmnt. 8-9, 18 (filed Nov. 4, 2002) (Docket \#
367) ("US SJ Opp. Mem.").[^1] Given that AMC has admitted this
statement, AMC cannot now credibly challenge the reasonableness of the
Department's reading of Standard 4.33.3\'s comparable-lines-of-sight
requirement.

Second, AMC fails to dispute \-- and thus concedes \-- significant
material facts set forth in the United States' Statement of
Uncontroverted Facts. [See]{.underline} Stmnt. of Uncontroverted Facts
and Concl. of Law In Support of Pl. United States' Motion for Partial
Sum. Judgment Re: Lines of Sight (lodged Oct. 28, 2002) (Docket \# 366).
First, AMC's Statement of Genuine Issues admits the majority of the
United States' fact paragraphs concerning the configuration of its
stadium-style theater complexes. [See]{.underline} AMC SJ Opp. Facts ¶¶
1-3, 5-7, 9, 19-20, 23, 25. Remarkably, moreover, AMC does not dispute
***any*** of the United States' material facts establishing that: (i)
the phrase "lines of sight" is a well-established term of art in the
context of theater designers that encompasses several factors including
viewing angles ([see]{.underline} [id]{.underline}. at ¶¶ 43-49); (ii)
AMC's "outside" architects have admitted that "lines of sight" include
viewing angles and that AMC was using viewing angles as early as 1995 to
design its stadium-style movie theaters ([see]{.underline}
[id]{.underline}. at ¶¶ 76-77); (iii) seats placed too close to the
screen with consequently large horizontal and vertical viewing angles
cause viewer discomfort, make it difficult to view the entire screen,
and make the images

on the screen appear distorted ([see]{.underline} [id]{.underline}. at
¶¶ 79-85); (iv) the seats on the traditional, sloped-floor portion of
its stadium-style theaters (where 76% of the wheelchair and companion
seating are located) provide views of the screen that are less relaxing,
more uncomfortable, more distorted, and have overly large projected
images ([see]{.underline} [id]{.underline}. at ¶¶ 86-88); (v) "lines of
sight" can be qualitatively compared, and the middle portion of the
stadium section of AMC's stadium-style theaters is generally considered
to offer the "best" and most preferred seating, while the wheelchair
seating located on the traditional, sloped-floor portion of these
theaters provide inferior lines of sight that are less popular and less
desirable to movie patrons ([see]{.underline} [id]{.underline}. at ¶¶
89-94); and, that (vi) since most movie patrons sit in the stadium
section of AMC's stadium-style theaters, the placement of wheelchair
locations in only the non-stadium-style section of the majority of these
theaters results in the segregation and isolation of persons who use
wheelchairs ([see]{.underline} [id]{.underline}. at ¶ 95). Taken
together, these admissions provide all the facts necessary to grant the
United States' motion for partial summary judgment.[^2]

Finally, the remaining portions of AMC's Statement of Genuine Issues do
not directly dispute the United States' facts, but, rather, "object" to
these facts on the basis of "relevancy." [See]{.underline} AMC SJ Opp.
Facts ¶¶ 11 - 18, 21-22, 24, 27-42, 75, 78.[^3] Such an objection,
however, fails to satisfy AMC's obligation under Rule 56(e) of the
Federal Rules of Civil Procedure to counter the United States'
properly-supported factual statements with "specific facts showing that
there \[are\] genuine issue\[s\] for trial." This obligation is not met
by the assertion of conclusory allegations or denials.
[See]{.underline}, [e.g]{.underline}., [Taylor v. List]{.underline}, 880
F.2d 1040, 1045-46 (9th Cir. 1989) ("A summary judgment motion cannot be
defeated by relying on conclusory allegations unsupported by factual
data."); [Morrison v. Walker]{.underline}, 404 F.2d 1046, 1048-49 (9th
Cir. 1968) (facts not contradicted by party opposing summary judgment
are admitted); 10B Charles A. Wright [et]{.underline} [al]{.underline}.,
[Federal Practice and Procedure]{.underline} § 2739 (1998). The facts
set forth in the United States' Statement of Uncontroverted Facts to
which AMC raises "relevancy" objections should, therefore, be deemed
admitted for purposes of the instant motion for partial summary
judgment. [See]{.underline} [id]{.underline}.; [see]{.underline}
[also]{.underline} C.D. Local Rule 56-3 (noting that material facts
adequately supported by the moving party are admitted to exist unless
"controverted by declaration or other written evidence filed in
opposition to the motion").

**B. [AMC Ignores Well-Established Administrative Law Precedents
Counseling\
That the Department of Justice's Interpretation of Its Own ADA
Regulations,\
As Well As Its Enforcement Decisions, Are Entitled to Substantial
Deference]{.underline}**

> **1. The Department of Justice's Reasonable and Consistent
> Interpretation\
> of Standard 4.33.3 Warrants Substantial Deference By This Court**

As discussed in the United States' summary judgment memorandum, the
Department's interpretation of Standard 4.33.3\'s comparability and
integration requirements is entitled to substantial deference because
its reading of these provisions fully comports with the language of the
regulation and best serves the anti-discrimination principles underlying
Title III of the ADA and its implementing regulations. [See]{.underline}
US SJ Mem. at 11-14, 23-25.[^4] AMC, in its opposition memorandum,
attempts to avoid this well-established principle of administrative law
by suggesting that the Access Board \-- rather than the Department of
Justice \-- "drafted" Standard 4.33.3, and by claiming that the
Department's interpretation of Standard 4.33.3 is merely a "litigating
position" that has changed over time. [See]{.underline} AMC SJ Opp. Mem.
at 1-3, 9-11, 22-25.[^5] Indeed, AMC even goes so far as to argue that
the United States' summary judgment memorandum itself contains a "new"
interpretation of Standard 4.33.3 by noting (in footnote six) that the
Department does not view this regulation as imposing specific viewing
angle requirements. [See]{.underline} AMC SJ Opp. Mem. at 22-25;
[see]{.underline} [also]{.underline} Decl. of Gregory F. Hurley In
Support of Opp. to Plntf.'s Motion for Partial Sum. Judgment Re: Lines
of Sight Issues ¶¶ 12-13 (filed Nov. 4, 2002) (Docket \# 378) ("Hurley
Dec."). AMC's claims are meritless.

> a\. [AMC Mistakenly Assumes that the Access Board "Drafted" Standard
> 4.33.3]{.underline}

As an initial matter, AMC is mistaken when stating that the Access Board
"drafted" Standard 4.33.3. Rather, as discussed at length in the United
States' memorandum in opposition to AMC's motion for summary judgment,
Standard 4.33.3 traces its regulatory roots back to private assembly
area accessibility guidelines published in 1980 by the American National
Standards Institute ("ANSI"). [See]{.underline} US SJ Opp. Mem. at 2-4.
These ANSI assembly area guidelines were then picked up, with some
modification, by other federal accessibility regulations and guidelines
over the years until finally becoming part of the Access Board's "ADA
Accessibility Guidelines for Buildings and Facilities" ("ADAAG").
[Id]{.underline}. at 3. ADAAG, however, merely establishes minimum
guidelines for new construction and alterations of facilities covered by
Title III of the ADA. [See]{.underline} US SJ Mem. at 5 & n.2; US SJ
Opp. Mem. at 3. The Department of Justice alone is
congressionally-tasked with promulgating binding regulations under Title
III of the ADA, and this regulatory authority includes the discretion to
"exceed the \[Access\] Board's 'minimum guidelines' and establish
standards that provide greater accessibility." 56 Fed. Reg. 35,408,
35,411 (1991). Pursuant to Congress' delegated regulatory authority, the
Department in 1991 issued final regulations \-- after notice-and-comment
rulemaking -- to govern new construction of, and alterations to, Title
III-covered facilities. [See]{.underline} US SJ Mem. at 5-6 (discussing
DOJ Standards for Accessible Design). [Id]{.underline}.

Thus, whatever Standard 4.33.3\'s regulatory and linguistic roots, the
interpretation and enforcement of this regulation is now the sole
responsibility of the Department of Justice. The Department's
interpretation of Standard 4.33.3 is, therefore, entitled to substantial
deference. [See]{.underline}, [e.g]{.underline}., [Paralyzed Veterans of
America v. D.C. Arena L.P.]{.underline}, 117 F.3d 579, 585 (D.C. Cir.
1997) (deferring to the Department of Justice's interpretation of
Standard 4.33.3 and ruling that "\[o\]nce the \[Access\] Board's
language was put out by the Department as its own regulation, it became,
as the \[ADA\] contemplates, the Justice Department's and only the
Justice Department's responsibility"), [cert]{.underline}.
[denied]{.underline}, 523 U.S. 1003 (1998); [Fiedler v. American
Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35, 36 & n.4 (D.D.C. 1994)
(deferring to the Department's interpretation of Standard 4.33.3);
[but]{.underline} [see]{.underline} [Lara v. Cinemark,
U.S.A.]{.underline}, 207 F.3d 783 (5th Cir.) ("[Lara II]{.underline}"),
[cert]{.underline}. [denied]{.underline}, 531 U.S. 944 (2000).[^6]

In any event, identifying the "drafter" of Standard 4.33.3 proves beside
the point since deference principles do not rest -- as AMC asserts
without citation -- on the notion that "who better than the drafters of
the regulation know what it means." AMC SJ Opp. Mem. at 2;
[see]{.underline} [also]{.underline} [id]{.underline}. at 9. AMC's bald
assertion notwithstanding, the Supreme Court describes the doctrine of
deference as stemming from several considerations having nothing to do
with regulatory authorship, including the agency's familiarity and
experience with the regulated program, and Congress' express delegation
of rulemaking and policymaking authority to the agency.
[See]{.underline}, [e.g]{.underline}., [Thomas Jefferson Univ. v.
Shalala]{.underline}, 512 U.S. 504, 512, 114 S. Ct. 2381, 2387 (1994);
[Pauley v. BethEnergy Mines, Inc.]{.underline}, 501 U.S. 680, 696, 111
S. Ct. 2524, 2534 (1991) (holding that Secretary of Labor's "entitlement
to deference" derived from congressionally-delegated authority to adopt
regulations). Indeed, the Supreme Court's comments regarding the
rational for affording deference in [Martin v. Occupational Safety and
Health Rev. Comm'n]{.underline}, 499 U.S. 144, 111 S. Ct. 1171 (1991)
applies with equal vigor to this action:

> Because applying an agency's regulations to complex or ***changing
> circumstances*** calls upon the agency's unique expertise and
> policymaking prerogatives, we presume that the power authoritatively
> to interpret its own regulations is a component of the agency's
> lawmaking powers.

499 U.S. at 151, 111 S. Ct. at 1176 (emphasis added).[^7] Since the
Department (rather than the Access Board) has been exclusively tasked by
Congress with rulemaking and enforcement authority for Title III of the
ADA, these Supreme Court precedents make plain that: (i) Standard 4.33.3
is the Department's own regulation for deference purposes irrespective
of authorship; and that (ii) this Court should afford deference to the
Department's interpretation of this regulation.

> b\. [The Department Has Consistently Interpreted Standard
> 4.33.3]{.underline}

Setting aside issues regarding the "authorship" of Standard 4.33.3, AMC
also suggests that the Department's interpretation of this regulation is
not entitled to deference both because it is allegedly only a
"litigating position" that was "first published in an amicus brief" and
because the Department's reading of this regulation has purportedly
changed over time. [See]{.underline} AMC SJ Opp. Mem. at 9-11, 22-25.
Neither of these claims undercut the broad deference due the
Department's interpretation of Standard 4.33.3.

The Department's interpretation of Standard 4.33.3\'s comparability
requirement is not, as AMC suggests, merely a "litigating position"
devised in the heat of a lawsuit in which the United States or the
Department was a party.[^8] Rather, the Department first stated its
position with respect to the application of stadium-style theaters in an
*amicus* brief in the [Lara]{.underline} action in light of the fact
that: (i) the Department reasonably understood that \-- when
promulgating Standard 4.3.33 in 1991 \-- the phrase "lines of sight" was
a well-recognized term of art in the context of theater design and
architects and designers would thus naturally understand the term as
encompassing viewing angles; (ii) inferior viewing angles for wheelchair
users in movie theaters did not become a prominent problem until after
the first stadium-style theater complex (AMC's Grand 24 in Dallas,
Texas) opened for business in May 1995 since traditional-style movie
theaters in existence prior to that time lacked the elevated (tiered)
seating of the stadium-style theaters which frequently caused dramatic
disparities in viewing angles; and (iii) the defendant theater operator
in [Lara]{.underline} (Cinemark, U.S.A., Inc.) was advocating a novel
interpretation of Standard 4.33.3\'s comparable-lines-of-sight
requirement whereby, in Cinemark's view, the phrase "lines of sight" had
nothing to do with viewing angles and only referred to visual
obstructions. [See]{.underline} US SJ Mem. at 14-20; US SJ Opp. Mem. at
14.[^9]

That the Department's views with respect to the application of Standard
4.33.3\'s comparability requirement to stadium-style movie theaters were
initially stated in an *amicus* brief, moreover, does not diminish the
deference due the Department's interpretation of its own regulations
implementing the ADA. [See]{.underline}, [e.g]{.underline}., [Auer v.
Robbins]{.underline}, 519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997)
(expressly rejecting petitioner's claim that, because Secretary of
Labor's interpretation was set forth in an *amicus* brief, it was
"unworthy of deference"); [Klem v. County of Santa Clara]{.underline},
208 F.3d 1085, 1089 (9th Cir. 2000) ("The Secretary's interpretation is
entitled to deference even when, as here, that interpretation comes to
the court in the form of a legal brief."); [Hertzberg v. Dignity
Partners, Inc.]{.underline}, 191 F.3d 1076, 1082 (9th Cir. 1999)
(deferring to agency interpretation expressed in *amicus* brief).
Moreover, because neither the United States nor the Department were
parties to the [Lara]{.underline} litigation, the interpretation put
forth by the Department in its *amicus* brief in that action were "'in
no sense a 'post hoc rationalizatio\[n\]' advanced by an agency seeking
to defend past action against attack," but rather "reflect\[ed\] the
\[Department's\] considered judgment on the matter in question."
[Auer]{.underline}, 519 U.S. at 462, 117 S. Ct. at 912 (internal
citation omitted).[^10] In accordance with well-established
administrative law principles, this Court should, therefore, afford
substantial deference to the Department's interpretation of Standard
4.33.3.

Furthermore, since the filing of its [Lara]{.underline} *amicus* brief,
the Department has uniformly interpreted Standard 4.33.3's
comparable-lines-of-sight requirement in the context of stadium-style
movie theaters in a manner that is fully consistent with its views
expressed in that action. As discussed previously, [see]{.underline} US
SJ Mem. at 16-17, the Department reasonably stated in [Lara]{.underline}
that: (i) Standard 4.33.3 encompassed horizontal and vertical viewing
angles; (ii) lines of sight provided to wheelchair users must be
comparable to those provided to members of the general public; (iii)
wheelchair locations should not be relegated to the worst sight lines in
the theater, but neither do they categorically have to be the best; and
that, (iv) consistent with the overall intent of the ADA, wheelchair
users should be provided equal access so that their experience equates
with that of most members of the general public. The Department has
taken the same position in subsequent litigation involving the
application of Standard 4.33.3 to stadium-style movie theaters.
[See]{.underline}, [e.g]{.underline}, Mem. of Plaintiff-Intervenor
United States As Amicus Curiae In Opp. to Defendants' Partial Motion for
Sum. Judgment 7-8 (filed April 20, 1999), [Lonberg v. Sanborn Theaters,
Inc.]{.underline}, C.A. No. CV-97-6598 AHM (Jgx) (C.D. Cal.) (Docket \#
170); Mem. of Law In Support of Pl. United States' Cross Motion for
Partial Sum. Judgment 12-13, 19-28 (filed Jan. 18, 2001), [United States
v. Cinemark USA, Inc.]{.underline}, C.A. No. 1:99CV-705 (N.D. Ohio)
(copy attached as Exhibit 1 to Appendix to Reply Memorandum In Support
of Plaintiff United States' Motion for Partial Summary Judgment Re: Line
of Sight Issues "("US SJ Reply App.")); Consol. Opp. of United States to
Defendants' Motions for Sum. Judgment 3-8 (filed July 15, 2002), [United
States v. Hoyts Cinemas Corp., et al.]{.underline}, C.A. No.
00-12567-WGY (D. Mass.) (US SJ Reply App., Ex. 2).

Dissemination of the Department's interpretation of Standard 4.33.3\'s
comparability requirement, moreover, has not been restricted (as AMC
contends without support) to legal briefs. [See]{.underline} AMC SJ Opp.
Mem. at 1, 10. Rather, the Department has broadly disseminated its views
regarding Standard 4.33.3 through: public speeches given by Department
officials to several national disability and trade organizations,
including NATO; meetings between Department officials and the NATO codes
committee; publication of the Department's ADA quarterly status reports
which is circulated to a mailing list of about 5,000 organizations; and,
posting of relevant materials on the Department's ADA website
(www.ada.gov). [See]{.underline}, [e.g]{.underline}., Pl. United States'
Response to Defendant AMC Entertainment, Inc.'s Third Set of
Interrogatories 3-6 (served July 31, 2002) (US SJ Reply App., Ex. 3);
Pl. United States' Amended and Supplemental Objections to Def. AMC
Entertainment, Inc.'s Interrogatories 6 and 7, Response to Interrogatory
No. 6 (served Feb. 11, 2000) (US SJ Reply App., Ex. 4); NATO, "Wodatch
Talks to NATO Members Assembled in DC - Stadium-Style Seating: The
Government's View," [NATO News]{.underline}, at 10 (July 1998) (US SJ
Reply App., Ex. 5).

Against this backdrop, it cannot be said that the Department has issued
inconsistent interpretations of Standard 4.33.3\'s
comparable-lines-of-sight requirement. Indeed, in June 2000, the Court
reached the opposite conclusion. From December 1999 through May 2000,
the parties were engaged in a lengthy discovery skirmish regarding AMC's
motion to compel additional interrogatory responses and documents.
[See]{.underline} discussion [infra]{.underline} pp. 15-20. AMC moved to
compel additional discovery outside the administrative record underlying
Standard 4.33.3 based, in part, on its assertion that the Department had
offered inconsistent interpretations of Standard 4.33.3 over the years.
[Id]{.underline}. After reviewing hundreds of pages of briefing and
exhibits, Magistrate Judge Hillman flatly rejected AMC's "inconsistency"
argument and precluded AMC from seeking discovery outside the
administrative record, stating:

> Judicial review under the APA is limited to the administrative record
> in all but a few cases. Defendant has not met the threshold
> requirement for discovery to supplement the administrative record.
> ***Defendant has not shown inconsistent interpretations by plaintiff
> of § 4.33.3 with regard to commercial stadium style movie theaters.***

Minute Order at 3 (June 5, 2000) (emphasis added) (Docket #134) (US SJ
Reply App., Ex. 6). This June 2000 Order sounds the death knell for
AMC's argument that the Department has interpreted Standard 4.33.3 in an
inconsistent fashion.

> c\. The United States' Summary Judgment Memorandum Does Not,\
> [as AMC Asserts, Present a "New" Interpretation of Standard
> 4.33.3]{.underline}

Perhaps the most frivolous aspect of AMC's opposition memorandum is its
insistence that footnote six of the United States' instant motion for
partial summary judgment represents "the first time the Department has
asserted that Standard 4.33.3 does not impose \[specific\] viewing angle
\[requirements\]." [See]{.underline} AMC SJ Opp. Mem. at 10-11, 22-25.
Remarkably, AMC makes this claim based ***solely*** on the unsupported
declaration of its trial counsel (Mr. Gregory Hurley). [See]{.underline}
Reply Mem. In Support of United States' Motion to Strike Declaration of
Attorney Gregory F. Hurley and Supp. Mem. In Support of Motion to Strike
Second Declaration By Attorney Gregory F. Hurley (filed Nov. 12, 2002)
("US Strike Reply Mem."). AMC's claim is baseless and should be
summarily rejected by this Court.

That the Department does not interpret, and has not interpreted,
Standard 4.33.3\'s comparable-lines-of-sight requirement as imposing
specific viewing angle requirements is a matter of public record. What
makes AMC's contention even more egregious is that AMC's counsel (Mr.
Hurley) has been informed of this position on no less than four
occasions. [See]{.underline}, [e.g]{.underline}., Mem. of Law In Support
of Pl. US' Cross Motion for Partial Summary Judgment \[[US v.
Cinemark]{.underline}\] at 26 ("\[A\]lthough various industry design
standards provide that no seat should have a viewing angle to the top of
the screen exceeding 30-35 degrees because of discomfort, . . . the
Department does [not]{.underline} adopt theat 30-35 degree measurement
as a maximum for wheelchair spaces.") (emphasis in original) (US SJ
Reply App., Ex. 1)[^11]; Pl. United States' Reply Mem. In Support of Its
Motion to Dismiss Def. STK's Counterclaim 4, 12 (filed June 6, 2000)
(noting, in response to STK's claim that the Department had
"promulgat\[ed\] new line of sight requirements, that the Department had
not adopted the SMPTE Guidelines regarding viewing angles) (Docket \#
133); Correspondence from Jeanine Worden to Gregory F. Hurley 1-2 (dated
March 26, 1999) ("\[W\]e have repeatedly advised you that the Department
does not use a formula when evaluating compliance with the comparable
sightlines requirement of Section 4.33.3\[.\]") (US SJ Reply App., Ex.
7); United States Portion of Joint Stip. Re: Discovery 7, 10 (filed Dec.
15, 1999) (Docket \# 55) ("Contrary to AMC's assertions, the United
States has not incorporated the \[SMPTE Guidelines\] into Standard
4.33.3, nor has it formally or informally set any other specific viewing
angle requirements for wheelchair seating in movie theaters.").[^12]
AMC's frivolous claim that the United States' summary judgment
memorandum amounts to a "new" interpretation of Standard 4.33.3 should,
therefore, be summarily dismissed.

> **2. The Department of Justice Has Substantial Discretion To\
> Determine How Best to Regulate and Enforce Standard 4.33.3**

Though the relevance to the instant motion for partial summary judgment
is unclear, AMC also cavalierly asserts in its opposition memorandum
that the United States should have promulgated amended regulations
specifically relating to stadium-style movie theaters, rather than
pursuing the instant enforcement action. [See]{.underline} AMC SJ Opp.
Mem at 18-20. In AMC's view, "\[a\]s originally drafted, § 4.33.3 did
not anticipate the issues raised by stadium seating" and, therefore,
"new issues call for new rules." [Id]{.underline}. at 18. AMC is both
factually and legally mistaken. Not only is the language of Standard
4.33.3 sufficiently broad to cover stadium-style movie theaters (or any
other type of assembly area), but also longstanding administrative law
principles afford regulatory agencies the broad discretion to address
emergent regulatory issues either by general rulemaking or by individual
enforcement actions.

As discussed previously, in light of the myriad types of assembly areas
to which Standard 4.33.3 applies, the Department of Justice reasonably
and necessarily opted for a flexible regulatory standard in Standard
4.33.3 that does not dictate the configuration of each assembly area so
long as disabled patrons are provided comparable views of the screen,
stage, or other spectacle being viewed. [See]{.underline} US SJ Mem. at
11-13 & n.6; US SJ Opp. Mem. at 17-22. When the Department promulgated
Standard 4.33.3 in 1991, it could not possibly anticipate every design
innovation that might occur in the future that could effect lines of
sight in movie theaters or other assembly areas. But that inability to
predict the future does not limit the authority of the Department to
apply the broad language of its regulation to new factual situations as
they develop, even if they were unanticipated at the time Standard
4.33.3 was promulgated. [Cf]{.underline}. [Pennsylvania Dep't of
Corrections v. Yeskey]{.underline}, 524 U.S. 206, 212, 118 S. Ct. 1952,
1956 (1998) (broad language of ADA can be applied to prisons even if
Congress did not expressly anticipate coverage of prisons when drafting
the statute). Indeed, one reason that the judiciary defers to
administrative agency interpretations is to allow a "measure of
flexibility to \[the\] agency as it encounters new and unforeseen
problems over time." [International Bhd. of Teamsters v.
Daniel]{.underline}, 439 U.S. 551, 566 n.20, 99 S. Ct. 790, 800 (1979);
[see]{.underline} [also]{.underline} [Martin]{.underline}, 499 U.S. at
151 (agency has inherent authority to interpret its own regulations
because "applying an agency's regulation to complex or changing
circumstances calls upon the agency's unique expertise and policymaking
prerogatives"). The mere fact that AMC's first stadium-style theater
(AMC Grand 24) was constructed several years after the promulgation of
Standard 4.33.3 does not, therefore, render this regulation inapplicable
to AMC's stadium-style theater complexes. Indeed, were it otherwise,
administrative agencies - such as the Department of Justice - would be
engaged in ceaseless rulemaking to account for every new issue or
situation that arose on the regulatory horizon.

Administrative law principles, moreover, make plain that the
determination of whether to address emerging regulatory issues through
general rule or case-by-case methods (such as adjudication or individual
enforcement actions) rests with the sound discretion of the agency.
[See]{.underline}, [e.g]{.underline}, [N.L.R.B. v. Bell Aerospace
Co.]{.underline}, 416 U.S. 267, 293, 94 S. Ct. 1757, 1771 (1974) (choice
between announcing policy through rulemaking or adjudication is within
agency discretion); [S.E.C. v. Chenery Corp.]{.underline}, 332 U.S. 194,
203, 67 S. Ct. 1575, 1580 (1947) ("\[T\]he choice made between
proceeding by general rule or by individual ad hoc litigation is one
that lies primarily in the informed discretion of the administrative
agency.") ("[Chenery II]{.underline}"); [accord]{.underline} [Bullwinkel
v. Federal Aviation Admin.]{.underline}, 23 F.3d 167, 171-72 (7th Cir.
1994); [Ford Motor Co. v. Federal Trade Comm'n]{.underline}, 673 F.2d
1008, 1009 (9th Cir. 1982), [cert]{.underline}. [denied]{.underline},
459 U.S. 999 (1982); [Patel v. I.N.S.]{.underline}, 638 F.2d 1199, 1203
(9th Cir. 1980). The Department of Justice -- rather than AMC -- was
thus vested with the discretion to determine whether the advent of
stadium-style movie theaters raised new "lines of sight" issues that
called for regulatory amendments to Standard 4.33.3 or, rather, whether
such issues were best addressed on a case-by-case basis in the context
of civil enforcement actions.[^13] Since there is no evidence that the
Department abused its discretion by choosing to file the instant
enforcement action, this decision must be affirmed by this Court.

**C. [AMC Already Has Been Afforded Ample Discovery In This Action and
This Court's Prior Discovery Rulings Are Now Law of the Case, Thus
Precluding AMC from Re-Litigating Such Matters In the Context of These
Summary Judgment Proceedings]{.underline}**

Largely seeking to rewrite litigation history, AMC's opposition
memorandum reads as if the United States had not already provided
extensive responses to AMC's voluminous written discovery, or that this
Court had never issued any prior discovery rulings regarding privilege
or other discovery matters in this action. For instance, AMC repeatedly
claims that the United States "prevented" AMC from seeking "necessary"
discovery by, for example, "preclud\[ing\] any inquiry into the genesis
of its position \[concerning Standard 4.33.3\] and "barr\[ing\] AMC from
taking a single deposition from DOJ regarding its interpretation of
\[Standard\] 4.33.3." [See]{.underline} AMC SJ Opp. Mem. at 3, 23. Based
on such alleged discovery improprieties, AMC asserts that this Court
should deny the United States' motion for partial summary judgment on
the ground that AMC cannot respond to this motion absent additional
discovery concerning the Department's allegedly "new" interpretation of
Standard 4.33.3. [See]{.underline} [id]{.underline}. at 24-25;
[see]{.underline} [also]{.underline} Fed. R. Civ. P. 56(f). AMC's
ostrich-like approach to the history of this case, however, cannot
ignore the fact that this Court has already upheld the United States'
invocation of various discovery privileges in this action
([e.g]{.underline}. work product, deliberative process, settlement
negotiation, and law enforcement investigative privileges), precluded
AMC from seeking discovery outside the administrative record for
Standard 4.33.3, and limited AMC to discovery concerning regulation of
new construction of commercial movie theaters. These rulings are now law
of the case. AMC should, therefore, be precluded from using Rule 56(f)
as a shield to prevent this Court from adjudicating the United States'
properly-filed motion for partial summary judgment.

To understand the hollowness of AMC's claim, it is necessary to briefly
review the history of discovery \-- and discovery disputes \-- in this
action. In July 1999, AMC served the United States with its initial set
of wide-ranging written discovery requests. [See]{.underline},
[e.g.]{.underline}, United States' Portion of Joint Stip. Re: Discovery
2-5, 7-11 (filed Dec. 15, 1999) (Docket \# 55); Mem. of Points and Auth.
In Support of Pl. United States' Motion for Protective Order From Def.
AMC Entertainment, Inc.'s Rule 30(b)(6) Deposition Notice 2-4 (filed
March 5, 2002) (Docket \# 237) (summarizing discovery history)
\[hereinafter "US 30(b)(6) Mem."\]. Over the ensuing months, the United
States produced both extensive interrogatory responses and several
thousand pages of documents in response to these discovery requests,
including: public documents relating to the Department's interpretation
of Standard 4.33.3 or the comparability of lines of sight in movie
theaters; pleadings, final settlement agreements, affidavits, exhibits,
and press releases in other ADA actions in which the United States
participated as a party or as *amicus* *curiae* and that involved the
application of Standard 4.33.3 to movie theaters or other assembly
areas; public documents relating to enforcement actions filed by the
United States against other movie theater companies; copies of written
complaints filed with the Department by individuals with disabilities or
their companions claiming that AMC had violated Title III of the ADA at
one or more of its stadium-style movie theaters; as well as prepared
speeches, policy letters, and letters to members of Congress by or from
the Department concerning Standard 4.33.3. [Id]{.underline}.;
[see]{.underline} [also]{.underline} US Portion of Joint Stip. Re:
Discovery, Ex. 11B (chart summarizing United States' extensive document
production efforts).[^14]

Yet while the United States' production effort was voluminous, it was
not absolute. Consistent with well-established federal caselaw, the
United States objected to the production of additional interrogatory
responses and/or documents that were privileged or otherwise protected
from disclosure.[^15] In December 1999, AMC nonetheless moved to compel
the United States to further respond to twenty-five specific
interrogatory requests and requests for production of documents.
[See]{.underline} \[AMC's\] Joint Stip. Pursuant to Local Rule 7.15.2
Re: Defendants' Motion to Compel Discovery (filed Dec. 7, 1999) (Docket
\# 46). The United States opposed this motion. [See]{.underline} United
States' Portion of Joint Stip. Re: Discovery (filed Dec. 15, 1999)
(Docket \# 55); Plaintiff's Supp. Mem. In Opp. to Def. AMC's Motion to
Compel Discovery (filed Jan. 4, 2000) (Docket \# 70); [see]{.underline}
[also]{.underline} Supp. Joint Stip. on Defendants' Motion to Compel
Further Discovery (filed March 23, 2000) (Docket \# 93). Altogether, the
parties submitted over 300 pages of briefing -- *excluding* exhibits --
on AMC's motion to compel.

In June 2000, Magistrate Judge Hillman issued a detailed order denying
AMC's motion to compel and affirming the United States' privilege
assertions. [See]{.underline} Minute Order (dated June 5, 2000) (Docket
\# 134). In summary, this June 2000 Minute Order: (i) affirmed the
United States' invocation of various discovery privileges
([e.g.]{.underline}, deliberative process, work product, settlement
negotiation, and law enforcement investigative privileges); (ii) limited
the scope of discovery to the application of Standard 4.33.3 to
commercial movie theaters; and (iii) precluded AMC from seeking
discovery outside the administrative record for Standard 4.33.3 to
support its APA-based affirmative defenses. [Id]{.underline}. AMC did
not move for reconsideration or review of this order.

From late 2000 until December 2001, the discovery front was largely
silent due to the parties' ultimately unsuccessful settlement and
mediation discussions. After these negotiations stalled, AMC recommenced
its relentless quest for discovery of privileged and otherwise protected
information and materials. For example, in January 2001, AMC sought
deposition testimony and documents from the United States concerning the
Department's court-ordered inspections of twelve of AMC's stadium-style
theater complexes. [See]{.underline} Joint Stip. Re: United States'
Motion for Protective Order from Def. AMC Entertainment, Inc.'s Rule
30(b)(6) Deposition Notice Re: Inspection of AMC's Theaters (filed Feb.
28, 2002) (Docket \# 232). Magistrate Judge Hillman subsequently granted
the United States' motion for protective order, holding that the
inspection-related testimony and documents sought by AMC were highly
privileged work product and, therefore, protected from disclosure.
[See]{.underline} Minute Order (dated April 1, 2002) (Docket \# 262).
AMC did not move for reconsideration or review of this order.

Undaunted, in February 2002, AMC served the United States with notices
of deposition seeking testimony from five current or former attorneys
who work (or worked) in the Department's Disability Rights Section \--
the same office that initiated the investigation of AMC's stadium-style
theaters and that is now representing the United States in this action.
[See]{.underline} United States' Joint Stip. Re: Pl. United States'
Motion for Protective Order From AMC Entertainment, Inc.'s Notices of
Deposition to Five DOJ Employees 9, 13-14 (filed March 22, 2002) (Docket
\# 254).[^16] The United States filed a motion for protective order from
these deposition notices served on Department attorneys on the grounds
that the federal rules do not permit such an unwarranted intrusion into
the thought processes and legal strategies of the United States'
counsel, and that, in any event, law of the case principles precluded
AMC from re-litigating the discovery ground already trod by the Court's
discovery orders issued in 2000. [Id]{.underline}. at 10-31. After
hearing oral argument and entertaining supplemental briefing, Magistrate
Judge Hillman quashed both the deposition notices and their accompanying
document requests in their entirety without prejudice to AMC serving
"narrowly-crafted" fact-based written discovery on two of the attorneys
that avoided trenching on privileged matters. [See]{.underline},
[e.g]{.underline}., Minute Order (dated April 18, 2002) (Docket \# 271);
Minute Order (dated May 14, 2002) (Docket \# 279). AMC's motion for
review and reconsideration was subsequently denied by this Court.
[See]{.underline} Order Denying Defendants' Motion for Review and
Reconsideration of the Magistrate's Order 3-4 (filed June 11, 2002)
(Docket \# 304).

Ignoring the memorable words of American philosopher George
Santayana,[^17] AMC is again claiming -- for at least the third time
during the course of this litigation -- that it needs additional
discovery regarding the Department's purportedly "new" interpretation of
Standard 4.33.3 in order to adequately respond to the United States'
summary judgment motion. [See]{.underline} AMC Mem. at 3, 22-25. AMC's
argument is meritless for three significant reasons. First, as discussed
previously, the Untied States has consistently and reasonably
interpreted Standard 4.33.3 and, therefore, there is no "new"
interpretation warranting discovery. [See]{.underline} discussion
[supra]{.underline} pp. 7-13. Second, AMC already has in its corporate
possession all the information it needs to defend itself in this action
given the United States' voluminous prior productions of public,
non-privileged statements, memoranda, technical assistance materials, or
other documents by or from the Department concerning the Department's
interpretation of Standard 4.33.3. [See]{.underline} discussion
[supra]{.underline} pp. 15-16. Lastly, Magistrate Judge Hillman has
already issued several discovery orders in 2000 and 2002 (which were
affirmed by this Court) holding, [inter]{.underline} [alia]{.underline},
that the deliberative process privilege and other privileges prohibited
AMC from seeking discovery of the Department's internal, non-public
discussions concerning Standard 4.33.3, and that AMC was prohibited from
seeking discovery outside the administrative record underlying Standard
4.33.3. [See]{.underline} discussion [supra]{.underline} pp. 17-19. Law
of the case principles thus plainly foreclose AMC from seeking \--
whether through Rule 56(f) or otherwise \-- privileged or extra-record
APA discovery from the Department regarding its interpretation of
Standard 4.33.3. [See]{.underline}, [e.g]{.underline}, [United States v.
Alexander]{.underline}, 106 F.3d 874, 876 (9th Cir. 1997) ("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 .
. . in the identical case."); [see]{.underline} [also]{.underline}
[United States v. Lummi Indian Tribe]{.underline}, 235 F.3d 443, 452
(9th Cir. 2000); [Mendenhall v. National Transp. Safety
Bd.]{.underline}, 213 F.3d 464, 469 (9th Cir. 2000).

**D. [AMC Misapprehends Both the Role and Purpose of the United States'
Trial Experts]{.underline}**

AMC also seeks to divert attention from the material issues presented by
the United States' motion for partial summary judgment by making the
dual argument that "\[t\]he Department repeatedly advised AMC that its
position on § 4.33.3 would be revealed through the deposition of its
experts" and that the United States' architectural expert (Mr. Peter
Frink) has designed assembly areas that are "inconsistent" with the
Department's reading of this regulation. [See]{.underline} AMC SJ Opp.
Mem. at 5-8. AMC's claims are not only factually incorrect, but evidence
a fundamental misunderstanding of the role of the United States' trial
experts in this litigation. First, neither Mr. Frink nor any of the
United States' trial experts "speak" for the Department of Justice with
respect to the proper interpretation of Standard 4.33.3. As the agency
exclusively tasked by Congress to regulate and enforce Title III of the
ADA, only the Department of Justice can issue authoritative
interpretations of Standard 4.33.3. [See]{.underline} 42 U.S.C. §§
12186(b), 12206, 12188(b). As with any litigant, however, the United
States may offer expert testimony to assist the trier of fact or to
determine a fact in issue. [See]{.underline} Fed. R. Civ. P. 702. Here,
the United States retained Mr. Frink "to analyze certain film facilities
characterized as 'stadium' theaters owned and operated by AMC . . . in
order to determine the comparability between wheelchair seating and
fixed seating as it relates to lines of sight for seeing the
screen\[.\]" [See]{.underline} Expert Report of Peter H. Frink 1 (dated
Aug. 22, 2002) (US SJ App., Vol. 3, Ex. 112). Nowhere in this report did
Mr. Frink opine regarding the "proper" legal interpretation of Standard
4.33.3, nor could he. Thus, while the comparability analyses set forth
in Mr. Frink's report are highly relevant to the issue of whether AMC
has engaged in a pattern or practice of violating Standard 4.33.3 with
respect to the design, construction and/or operation of its
stadium-style theaters, that is not an issue for resolution in these
summary judgment proceedings. Rather, the United States seeks herein,
[inter]{.underline} [alia]{.underline}, a partial summary order
affirming the reasonableness of the Department's interpretation of
Standard 4.33.3\'s comparability and integration requirements. On these
legal issues, Mr. Frink does not, and cannot, provide any "expert"
opinions.

Second, AMC fundamentally mischaracterizes the Department's position
with respect to the role of its trial experts in this enforcement
action. The Department has not, as AMC suggests, "repeatedly advised AMC
that its position on § 4.33.3 would be revealed through the depositions
of its experts." AMC SJ Mem. at 5. Indeed, quite the opposite. That
United the States has already produced thousands of pages of public,
non-privileged documents concerning the Department's interpretation of
Standard 4.33.3 stands in powerful contrast to AMC's assertion.
[See]{.underline} discussion [supra]{.underline} p. 15-17. Moreover, as
with so many other portions of AMC's opposition memorandum, the factual
"sound bites" cited by AMC as "support" for this claim simply cannot
withstand scrutiny. For example:

1.  AMC quotes from the United States' responses to Interrogatory Nos.
    21 & 22 of Defendant AMC Entertainment, Inc.'s Second Set of
    Interrogatories, but these interrogatories had nothing to do with
    the Department's views regarding the role or function of its trial
    experts. Rather, these interrogatories sought the production of
    highly-privileged information concerning the United States'
    court-ordered inspections of twelve of AMC's stadium-style theater
    complexes \-- including the identities of all persons who attended
    these inspections on the Department's behalf (Interrogatory No. 21),
    and the identification of all documents related to or resulting from
    these inspections (Interrogatory No. 22). The United States objected
    to the production of the Department's work product, and this
    privilege objection was subsequently upheld by Magistrate Judge
    Hillman ([compare]{.underline} Hurley Dec., Ex. C at 9-10
    [with]{.underline} AMC SJ Opp. Mem. at 6 [and]{.underline}
    [with]{.underline} Minute Order (dated April 1, 2002);

2.  Without attaching a transcript or even giving a page citation
    therein, counsel for AMC baldly alleges that, during a discovery
    hearing in April 2002, the United States represented to the Court
    "that it would not disclose to AMC where it contends AMC's
    wheelchair spaces must be located until the Department served its
    expert reports." Review of this transcript makes plain that counsel
    for the United States made no such statement. Rather, the only
    discussion of experts that arose in this hearing concerned expert
    opinions being offered by the United States on non-compliant
    "features" of AMC's theater complexes ([i.e]{.underline}.,
    [non]{.underline}-line of sight accessibility issues involving such
    architectural features as ramps, concession counters, parking lots,
    and bathrooms). The United States subsequently produced the expert
    report of Mr. Bill Hecker who provided a detailed accounting of the
    non-compliant features at the twelve AMC stadium-style theater
    complexes inspected by the United States ([compare]{.underline}
    Hurley Dec. ¶ 6 [with]{.underline} US SJ Reply App., Ex. 11 at
    35-39).

Simply put, AMC's claim that the United States represented to AMC that
its interpretation of Standard 4.33.3 would come only through trial
experts is refuted by the record in this action.

Finally, AMC is factually mistaken in its assertion that there are
"inconsistencies" between assembly areas designed by Mr. Frink and the
Department's reading of Standard 4.33.3. While a detailed refutation of
the these purported "inconsistencies" is beyond the scope of this reply
memorandum, a few illustrative examples serve to underscore the folly of
AMC's contentions. First, AMC incorrectly states that the wheelchair
seating in facilities designed by Mr. Frink are located outside the
"stadium portion" of the auditoria. [See]{.underline} AMC SJ Opp. Mem.
at 7. Instead, most of the post-ADA assembly areas designed by Mr. Frink
have one or more wheelchair spaces located in a tiered portion of the
auditorium, near the middle of the seating area; indeed, many of Mr.
Frink's facilities were designed from the outset with the express
intention of providing persons who use wheelchairs with "the best
location\[s\] in the house." [See]{.underline} Frink Dep. 45:9-14,
50:3-6; 67:7-14, 110:3-111:8, 115:20-117:2, 119:17-19, 125:24-126:1,
135:16 - 136:2 (US SJ Reply App., Ex. 12); [see]{.underline}
[also]{.underline} Hurley Dec., Ex. E (collection of architectural
drawings for some of Frink's facilities). Second, Mr. Frink testified
that the assembly areas he designed after the ADA offered comparable
lines of sight to persons who use wheelchairs when such multi-purpose
assembly areas were being used for their predominant purpose
([e.g]{.underline}., dance recitals, lectures, concerts, live theater
productions, musical performances). [See]{.underline} [id]{.underline}.
at 46:13-48:1, 58:10-59:9, 69:25-70:6, 74:7-10, 85:18-87:12,
103:18-104:25. Mr. Frink testified, moreover, that all but one of the
assembly areas he designed provide comparable lines of sight for persons
who use wheelchairs when used for their secondary purpose of viewing
projected images, and the only potential sight line problem with the one
facility was that the wheelchair locations might be too *far* from the
screen depending on where the screen was affixed to the stage.
[Id]{.underline}.; [see]{.underline} [also]{.underline} 54:10-55:2,
85:23-87:12 (describing application of criteria), 147:1-148:24 (same).

In sum, AMC's claim of "inconsistency" between Mr. Frink's facilities
and the Department's interpretation of Standard 4.33.3 is nothing more
than a ploy to divert the Court's attention from the material legal
issues underlying the United States' motion for partial summary
judgment. This Court should reject AMC's blatant attempt to turn these
summary judgment proceedings into a referendum on the assembly areas
designed by Mr. Frink which, in any event, provide comparable lines of
sight to persons who use wheelchairs.

**E. [AMC Fundamentally Misconstrues the Department's Interpretation of
Standard\
4.33.3\'s Integration Requirement as Mandating Wheelchair Access to
"Every\
Square Inch of AMC's Theaters"]{.underline}**

Turning to Standard 4.33.3\'s integration provision, AMC argues that the
Department impermissibly reads this integration requirement as mandating
that wheelchair seating be located within particular sections of the
theater such that "every square inch of AMC's theaters be handicap
accessible." [See]{.underline} AMC SJ Opp. at 3-5, 15-18. AMC then
proffers its own view that Standard 4.33.3\'s integration requirement is
satisfied so long as wheelchair seating is placed "within the general
footprint of the fixed seating plan." [Id]{.underline}. at 17. AMC is
wrong on both accounts. Not only does AMC fundamentally misconstrue the
Department's reading of the integration requirement, but also adoption
of AMC's proffered interpretation would seriously undermine one of the
primary purposes of Title III and its implementing regulations -- to
promote integration and equality in assembly area seating.
[See]{.underline} SJ Mem. at 4-6..

Setting AMC's rhetorical flourishes aside, the United States neither
reads Standard 4.33.3\'s integration requirement as mandating that
wheelchair seating be placed in any particular section, nor interprets
this regulation as requiring "every square inch" of a stadium-style
movie theater be accessible to patrons who use wheelchairs. Rather, the
Department reasonably reads this integration requirement as requiring
that stadium-style movie theaters (and other assembly areas) provide
seating for physically disabled patrons that is among the seats where
members of the general public routinely sit. [See]{.underline} SJ
[Mem]{.underline}. at 23-25. The Department does not view Standard
4.33.3 as mandating that wheelchair seating be located in any particular
section or portion of a theater so long as such seating meets this
requirement.

Reading Standard 4.33.3\'s integration requirement as merely requiring
that wheelchair seating be located "among" other "fixed" seats (as AMC
contends should be done), on the other hand, would do violence to both
the language and purpose of the regulation. First, such a reading
ignores the plain language of Standard 4.33.3, which mandates that
wheelchair seating not just be part of any fixed seating plan, but that
it be an ***integral*** part of such fixed seating plan. AMC's proffered
interpretation reads the word "integral" right out of the integration
requirement. Fundamental principles of statutory (and regulatory)
construction, however, require all words to be given their full meaning
and effect. [See]{.underline}, [e.g]{.underline}., [Rainsong Co. v.
F.E.R.C.]{.underline}, 151 F.3d 1231, 1234 (9th Cir. 1998) ("Of course,
in the construction of administrative regulations, as well as statutes,
it is presumed that every phrase serves a legitimate purpose and,
therefore, constructions which render regulatory provisions superfluous
are to be avoided."); [see]{.underline} [also]{.underline} US SJ Opp.
Mem. at 16-17.[^18]

Second, by ignoring the full text of Standard 4.33.3\'s integration
requirement, AMC's proffered interpretation would permit the very
inequality and segregation of persons who use wheelchairs that Title III
of the ADA and its implementing were designed to remedy. Movie theater
operators, such as AMC, should not be permitted to dump several rows of
"booker" seats on the sloped-floor at the front of a stadium-style
theater -- seats that they acknowledge virtually no one sits in -- and
then say, in effect "See, we've complied with the law because the
wheelchair seats are located 'among' other fixed seats." Yet this is
precisely what AMC (and other stadium-style movie theater operators)
have done. Indeed, AMC admits that: (i) the vast majority (76%) of its
stadium-style theaters have wheelchair seating located outside the
stadium section; (ii) wheelchair seating located on the traditional,
sloped-floor portion of these theaters provides inferior lines of sight
that are less popular and less desirable to movie patrons; and (iii)
since most movie patrons sit in the stadium section of AMC's
stadium-style theaters, "the placement of wheelchair locations in only
the non-stadium-style section of the majority of \[these\] theaters
results in the segregation and isolation of persons who use
wheelchairs." [See]{.underline} [supra]{.underline} pp. 2-3.

Consideration of the foregoing facts highlights the human dimension of
this case -- the more than 2 million Americans who use wheelchairs, many
of them moviegoers, on whose behalf this enforcement action was filed.
This is a group of people for whom going to the movies can and ought to
be one of the most accessible and inexpensive forms of entertainment,
and yet it is not. [See]{.underline}, [e.g]{.underline}., US SJ Facts ¶¶
30, 32-34, 106. Whether it is a cabinet maker with paraplegia out for
the evening with a friend ([see]{.underline} Roberts Dec. ¶¶ 1-11), or a
parent with a mobility impairment trying to take his family to a Sunday
matinee ([see]{.underline} Wagner Dep. 21:24-22:1, 40:13-41:7, 49:14-19,
57:8-25) (US SJ App., Vol. 1, Ex. 20), patrons who use wheelchairs enter
one of AMC's heavily-promoted stadium-style theaters and are confronted
immediately with the fact that they cannot do what most other movie
patrons can do -- climb the riser steps to find a seat with enhanced
sightlines and a comfortable, undistorted view of the screen where they
are "immersed" in the viewing experience. [See]{.underline} US SJ Facts
¶¶ 11-12. Neither the ADA nor this Court should permit AMC to
discriminate against patrons who use wheelchairs in this fashion.

**CONCLUSION**

For the foregoing reasons, this Court should grant the United States'
motion for partial summary judgment.

DATED: Nov. 11, 2002

Respectfully submitted,

> RALPH F. BOYD, JR.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN S. GORDON
>
> United States Attorney
>
> JOHN L. WODATCH, Chief
>
> PHILIP L. BREEN, Special Legal Counsel
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> Disability Rights Section
>
> [                                                               ]{.underline}
>
> GRETCHEN E. JACOBS
>
> PHYLLIS M. COHEN
>
> KATHLEEN S. DEVINE
>
> DOV LUTZKER
>
> KRISTAN S. MAYER
>
> JOSEPH C. RUSSO
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Counsel for Plaintiff
>
> United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this \_\_ day of November, 2002, true and
correct copies of **Reply Memorandum of Plaintiff United States In
Support of Motion for Partial Summary Judgment Re: Line of Sight
Issues** were served by Federal Express, postage pre-paid, on the
following parties:

Gregory F. Hurley

Kutak Rock LLP

18201 Von Karman

Suite 1100

Irvine, CA 92612-1077

Robert J. Harrop

Lathrop & Gage L.C.

Suite 2500

2345 Grand Boulevard

Kansas City, MO 64108-2684

[                                                 ]{.underline}

Gretchen E. Jacobs

[^1]: While its admission in the [Fiedler]{.underline} memorandum is
    ignored by AMC in its opposition memorandum, AMC's Statement of
    Genuine Issues at least acknowledges this statement by raising a
    relevancy "objection" to the United States' fact paragraph quoting
    the [Fiedler]{.underline} memorandum. [See]{.underline} Dfndnts.'
    Separate Stmnt. of Genuine Issues of Material Fact In Opp. to
    Plntf.'s Motion for Partial Sum. Judgment Re: Line of Sight Issues
    48 (filed Nov. 4, 2002) (Docket \# 374) "(AMC SJ Opp. Facts") (Fact
    No. 75). AMC's "objection" is frivolous. First, the United States
    made no such argument in the [Fiedler]{.underline} litigation.
    [See]{.underline} US SJ Opp. Mem. at 6-7. Second, irrespective of
    the legal issues in [Fiedler]{.underline}, AMC's statement that
    Standard 4.33.3 encompasses viewing angles is significant both as
    evidence demonstrating that the United States has reasonably
    interpreted Standard 4.33.3 to encompass viewing angles, and that,
    even before ever opening any of its stadium-style theater complexes,
    AMC fully understood Standard 4.33.3\'s comparability mandate.

[^2]: Indeed, AMC expressly disputes only a ***single*** paragraph in
    the entirety of the United States' Statement of Uncontroverted Facts
    \-- a paragraph concerning whether AMC had a "pattern and practice"
    of placing wheelchair seating on the traditional, sloped-floor
    portion of its stadium-style theaters with seating capacities of 300
    or fewer patrons ([see]{.underline} [id]{.underline}. at ¶ 26).
    Notably, AMC does not dispute the United States' factual assertion
    that of the 1,714 auditoria contained in the stadium-style theater
    complexes currently owned or operated by AMC, 1,306 auditoria
    (76.2%) had no wheelchair or companion seating location in the
    stadium-style section. [See]{.underline} AMC SJ Opp. Facts ¶¶ 24,
    26. AMC thus apparently contests only the United States' statement
    that such a percentage (76%) amounts to a "pattern and practice" of
    placing wheelchair locations outside the stadium-style section.

[^3]: In addition to relevancy, AMC also raises particularized
    objections to two other categories of the United States' fact
    paragraphs. First, AMC "objects" to the United States' fact
    paragraphs regarding statements by an industry trade organization
    (National Association of Theater Owners ("NATO")) concerning "lines
    of sight" in movie theaters on the dual grounds of relevance and the
    Department's purported "barring" of discovery concerning DOJ-NATO
    settlement negotiations. [See]{.underline} AMC SJ Opp. Facts ¶¶ 59 -
    61, 63 - 74. AMC also "objects" to the United States' fact
    paragraphs regarding audience seating preferences because the
    Department allegedly did not produce copies of videotapes from which
    the United States' expert statistician (Dr. Linda Fidell) derived
    her statistical data. [See]{.underline} [id]{.underline}. at ¶¶
    95-104. Both of AMC's "objections" are meritless. Both Magistrate
    Judge Hillman and this Court have already held that AMC is not
    entitled to information regarding DOJ-NATO contacts that would
    reveal negotiating positions or statements made during settlement
    negotiations. [See]{.underline} Minute Order (dated Feb. 25, 2000)
    (Docket \# 87); Order Denying Defendants' Motion for Review and
    Reconsideration (dated April 11, 2000) (Docket \# 103). Second, with
    respect to Dr. Fidell's statistical analysis, the United States has
    already made available for inspection by AMC all the materials she
    considered or relied on when forming her opinions -- including the
    videotapes from which the digital images she analyzed were
    extracted. [See]{.underline} US Facts ¶¶ 96-98 (describing
    videotapes and digital image extraction process); [see]{.underline}
    [also]{.underline} Pl. United States' Opp. to Defendants' *Ex Parte*
    App. Striking Videotapes Which Formed the Basis of Plntf.'s Motion
    for Partial Sum. Judgment Re: Lines of Sight (filed Nov. 8, 2002)

[^4]: Of course, the United States also noted in its summary judgment
    memorandum that the meaning of Standard 4.33.3 is clear and that the
    Court need not look beyond this plain language to affirm the
    Department's interpretation of this regulation. [See]{.underline} US
    SJ Mem. at 11-12. In the event that the Court disagrees and views
    the language of Standard 4.33.3 as ambiguous, it is only then that
    deference principles come to the legal forefront.

[^5]: AMC's related argument that the Department's impermissibly seeks
    to retroactively apply its "litigating postion" has already been
    addressed in the United States' memorandum in opposition to AMC's
    motion for summary judgment. [See]{.underline} US SJ Opp. Mem. at 22
    & n.7.

[^6]: A detailed discussion of the flaws underlying the Fifth Circuit's
    analysis of deference and other matters is set forth in the United
    States' memorandum in opposition to AMC's motion for partial summary
    judgment. [See]{.underline} US SJ Opp. Mem. at 12-17;
    [see]{.underline} [also]{.underline} US SJ Mem. at 21-22.

[^7]: That authorship is not an essential predicate to deference has
    been made plain by several Supreme Court decisions wherein the Court
    afforded substantial deference to an agency's interpretation of
    regulations issued by another state or federal agency.
    [See]{.underline} [Arkansas v. Oklahoma]{.underline}, 503 U.S. 91,
    109-114, 112 S. Ct. 1046, 1059-61 (1992) (reversing Court of Appeals
    decision for failing to grant substantial deference to EPA's
    interpretation of state water quality standards);
    [Pauley]{.underline}, 501 U.S. at 696-99 (deferring to Secretary of
    Labor's interpretation of regulations implementing the Black Lung
    Benefits Act that were initially promulgated by the former
    Department of Health, Education and Welfare).

[^8]: A discussion of the Department's interpretation of Standard
    4.33.3\'s integration requirement follows separately in section E of
    this reply memorandum. [See]{.underline} [infra]{.underline} pp.
    23-25.

[^9]: The fact that *viewing angles* did not become a prominent problem
    for movie patrons who use wheelchairs until after 1995 does not
    mean, as AMC contends, that issues surrounding the placement and
    dispersal of wheelchair seating were foreign to traditional,
    sloped-floor theaters. [See]{.underline} AMC SJ Opp. Mem. at 18
    (wherein AMC claims that "\[m\]ost assuredly, questions concerning
    which portion of an auditorium should contain wheelchair spaces did
    not arise when all the seats were located on the sloped floor").
    AMC's bald and disingenuous assertion is countered by at least two
    federal cases - one of which AMC was the named defendant - involving
    litigation over the application of Standard 4.33.3 to, and the
    placement of wheelchair locations within, traditional, sloped-floor
    theaters. [See]{.underline} [Fiedler v. American Multi-Cinema,
    Inc.]{.underline}, 871 F. Supp. 35 (D.D.C. 1994); [Arnold v. United
    Artists Theater Circuit, Inc.]{.underline}, 158 F.R.D. 439 (N.D.
    Cal. 1994).

[^10]: AMC's citation to [Bowen v. Georgetown Univ. Hosp.]{.underline},
    488 U.S. 204, 109 S. Ct. 468 (1988) is thus inapposite since, unlike
    the United States' *amicus* position in [Lara]{.underline}, the
    agency seeking deference to its interpretation was a party-defendant
    in the underlying litigation. Indeed, the agency's status as a
    party-defendant was the central reason that [Bowen]{.underline}
    declined to give the agency's "convenient litigating position" any
    deference. [See]{.underline} 488 U.S. at 212, 109 S. Ct. at 473-74.

[^11]: In response to AMC's interrogatory requests, the United States
    identified [Cinemark]{.underline} as being one of the enforcement
    actions filed by the United States that described or discussed the
    United States' position with respect to the application of Standard
    4.33.3 to stadium-style movie theaters. [See]{.underline},
    [e.g]{.underline}., US SJ Reply App., Ex. 3 at 3-4 (United States'
    Response to Interrogatory No. 25). The [Cinemark]{.underline}
    pleadings were also produced to AMC during the course of discovery
    in this action.

[^12]: Indeed, not even AMC or its "outside" architects understood
    Standard 4.33.3 as imposing specific viewing angle requirements.
    [See]{.underline}, [e.g]{.underline}., Pl. United States' Statement
    of Genuine Issues In Opp. to Defendant AMC's Motion for \[Partial\]
    Summary Judgment 11-12 (filed Nov. 4, 2002) (Docket \# 375);
    Correspondence from Gould Evans Associates (William E. Pyle, Jr.) to
    American Multi-Cinema, Inc. (Sam Giordano) 1 (dated April 27, 1999)
    ("We understand that . . . the ADA does not specify a degree angle
    for line of sight . . . ") (US SJ Reply App., Ex. 8).

[^13]: Significantly, AMC was a party to NATO's Petition for Rulemaking
    Regarding Stadium-Style Motion Picture Theaters submitted to the
    Department of Justice in August 1999. [See]{.underline} US SJ Reply
    App., Ex. 9, Appendix A. The Department denied this petition in
    November 1999, stating that the Department was planning to "review
    and amend" its ADA regulations after the Access Board's completion
    of its comprehensive review of ADAAG. [See]{.underline}
    [id]{.underline}. at Ex. 10. Apparently satisfied with this
    response, neither NATO nor any of its member theater operators (such
    as AMC) sought judicial review of the denial this petition.
    [See]{.underline} 5 U.S.C. §§ 702, 706. AMC is thus procedurally
    barred in this action from challenging the Department's decision not
    to amend Standard 4.33.3. [See]{.underline} [Auer]{.underline}, 519
    U.S. at 459, 117 S. Ct. at 910.

[^14]: Beginning in late 2001 and into 2002, the United States also
    supplemented its initial document productions with additional
    non-privileged, responsive documents, including complaint-related
    documents and the certified administrative record for Standard
    4.33.3. [See]{.underline}, [e.g.]{.underline}, Appendix (Volume Two)
    to Pl. United States' Motion for Protective Order From Def. AMC
    Entertainment, Inc.'s Notices of Deposition to Five DOJ Employees,
    Exs. 29 - 30 (filed March 22, 2002) (Docket \# 252) (cover letters
    to United States' supplementary document productions ).

[^15]: For example, the United States objected to the disclosure of
    documents and information regarding: internal, non-public
    discussions within the Department regarding Standard 4.33.3 on the
    ground that such information contained pre-decisional agency
    deliberations, the disclosure of which would chill free and open
    debate, and compromise privileged communications (deliberative
    process and attorney client privileges); meetings and negotiations
    between the Department and movie theater operators and/or NATO on
    the ground that the disclosure of these discussions would compromise
    confidential settlement negotiations (settlement negotiation
    privilege); Departmental investigations of other Title III-covered
    facilities and entities on the ground that disclosure of this
    information would adversely effect the United States' investigative
    efforts (law enforcement privilege); and, materials outside the
    administrative record underlying Standard 4.33.3 on the ground that
    judicial review under the Administrative Procedures Act (5 U.S.C. §
    551 [et]{.underline} [seq]{.underline}.) ("APA") is limited to the
    administrative record of the challenged regulation.
    [See]{.underline} US Portion of Joint Stip. Re: Discovery at 5-32.

[^16]: With one exception, each of these deposition notices was also
    accompanied by a document request seeking a wide range of documents,
    including documents related to the Department's interpretation of
    Standard 4.33.3, and communications between the Department and the
    Access Board or NATO regarding the Department's interpretation of
    Standard 4.33.3. [Id]{.underline}. at 9.

[^17]: George Santayana is credited with the aphorism that "those who
    cannot remember the past are condemned to repeat it\[.\]" 1 George
    Santayana, [The Life of Reason]{.underline} 284 (1905).

[^18]: Nor do the sources cited by AMC as support for its proffered
    interpretation undermine the reasonableness of the Department's
    interpretation of Standard 4.33.3\'s integration requirement. First,
    the quoted portion of the 1994 Supplement to the Department's ADA
    Technical Assistance Manual is plainly addressed to the issue of
    lines-of-sight over standing spectators, rather than integration
    issues. [See]{.underline} AMC SJ Mem. at 4-5. Second, AMC's citation
    to the Access Board's 1998 ADAAG Technical Assistance Manual is
    flawed in two respects. The Access Board is not statutorily-tasked
    (as is the Department) to interpret or enforce Standard 4.33.3.
    Moreover, the portion of the ADAAG Manual quoted by AMC is not
    inconsistent with the Department's reading of the integration
    requirement since nowhere does it purport to be providing a
    exclusive list of factors relevant to the integration calculus.
    Finally, AMC's citation to the discussion of the integration
    requirement by the district court in [Meineker v. Hoyts Cinemas
    Corp.]{.underline}, 216 F. Supp.2d 14 (N.D.N.Y. 2002) proves of no
    assistance since the [Meineker]{.underline} court assumed -- perhaps
    because the record was silent on this point -- that the rows of
    seats on the sloped-floor had comparable lines of sight and provided
    equally desirable seating locations. Here, however, there is
    powerful evidence of quite the opposite. [See]{.underline}
    discussion [supra]{.underline} pp. 2-3; SJ Mem. at 23-25;
    [see]{.underline} [also]{.underline} US SJ App., Vol. 3, Ex. 110
    (six sample printouts of digital audience seating preference
    images).