Number range CHAPTERBILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

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

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 ) Civil Action No.: 99-1034 FMC (SHx)\
)\
Plaintiff, ) **PLAINTIFF UNITED STATES\' MEMORANDUM**\
) **OF POINTS AND AUTHORITIES IN**

v\. ) **OPPOSITION** **TO DEFENDANTS\'** **[EX PARTE]{.underline}**\
) **APPLICATION FOR AN ORDER ENLARGING**\
) **THE TIME IN** **WHICH DEFENDANTS MAY**\
AMC ENTERTAINMENT, INC., ) **REFILE** **AN APA** **COUNTERCLAIM**\
[et]{.underline} [al]{.underline}., )\
) Judge: Florence-Marie Cooper\
Defendants. ) Date: To be determined.\
) Time: To be determined.

[                                                               ]{.underline}

TABLE OF CONTENTS

**INTRODUCTION** 1

**I. The Court Should Not Delay Resolution of the APA Question for an
Additional Four Months**. 3

> A. Defendants' Request for an Extension Is Premature. 3
>
> B. The United States Has Cooperated with Defendants by Providing
> Non-Privileged, Relevant Discovery. 5

**II. Further Discovery Will Not Yield Any Evidence of Final Agency
Action that Has Not Already Been Rejected by this Court's December
17^th^ Order or Binding Court Precedent**. 7

**CONCLUSION** 11

**TABLE OF AUTHORITIES**

**CASES**

[Assembly of the State of Cal. v. United States Department of
Commerce]{.underline}, 968 F.2d 916 (9^th^ Cir. 1992) 6

[Dow Jones & Co. v. Department of Justice]{.underline}, 917 F.2d 571
(D.C. Cir. 1990) 6

[Duval Ranching Co. v. Glickman]{.underline}, 965 F. Supp. 1427 (D. Nev.
1997) 4

[Gallo Cattle Co. v. United States Department of
Agriculture]{.underline}, 159 F.3d 1194 (9th Cir. 1998)\
7, 10, 11

[Lara v. Cinemark USA, Inc.]{.underline}, 2000 WL 297662 (5th Cir. Apr.
6, 2000) 11

[Mission Power Engineering Co. v. Continental Casualty Co.]{.underline},
883 F. Supp. 488 (C.D. Cal.\
1995) 1

[Mt. Adams Veneer Co. v. United States]{.underline}, 896 F.2d 339 (9th
Cir. 1990) 4, 9

[National Automatic Laundry & Cleaning Council v. Schultz]{.underline},
443 F.2d 689 (D.C. Cir. 1970). 7-8

[New Jersey Hospital Assn v. United States]{.underline}, 23 F. Supp. 2d
497 (D. N.J. 1998) 4

[Standard Oil Co. v. FTC]{.underline}, 449 U.S. 232, 101 S. Ct. 488, 66
L. Ed. 2d 416 (1980) 3

[Ukiah Valley Medical Ctr. v. FTC]{.underline}, 911 F.2d 261 (9th Cir.
1990) 10

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

[United States v. AMC]{.underline}, CV 99-1034, Order Granting
Plaintiff's Motion to Dismiss Defendants'\
Counterclaim (December 17, 1999) [passim]{.underline}

[United States v. Cinemark USA, Inc.]{.underline}, 99-CV-705, Memorandum
and Opinion and Order\
(March 22, 2000) 9, 10

**STATUTES** **AND REGULATIONS**

Administrative Procedure Act (APA)

5 U.S.C. §§ 701-706 3

5 U.S.C. § 704 7

American with Disabilities Act (ADA)

42 U.S.C. § 12101, [et seq.]{.underline} 3

42 U.S.C. §§ 12181-12189 3

42 U.S.C. § 12186(c) 10

42 U.S.C. § 12188(b) 10

64 Fed. Reg. 62248, 62278 (Nov. 16, 1999) 10

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

36 C.F.R. pt 1191 10

**INTRODUCTION**

The United States hereby opposes Defendants' premature [ex
parte]{.underline} application[^1] for an extension of time to reassert
their Administrative Procedure Act (APA)-based counterclaim in order to
allow additional time for discovery.[^2] A hearing on Defendants' motion
to compel discovery is currently scheduled before Magistrate Judge
Hillman on May 4, 2000.[^3] The Magistrate Judge may well conclude next
week the scope of further discovery, if any, to which Defendant is
entitled. Determining now whether an extension of time would be
necessary for review of such discovery is premature at this point, as
the Magistrate Judge may well deny Defendants' motion to compel.

Magistrate Judge Hillman stated at a January 11^th^ hearing that he
tentatively agreed with the Department's arguments that certain
documents were privileged or irrelevant and should not be turned over.
[See]{.underline} Declaration of Stephanie Stoltzfus at ¶ 14 ("Stoltzfus
Decl."). The United States has opposed Defendants' motion to compel on
the grounds that the Department is only withholding privileged or
non-relevant documents and that it has already provided Defendants with
thousands of pages of discovery over the course of the last ten months
in response to Defendants' expansive requests for production.
[See]{.underline} Stoltzfus Decl. at ¶¶ 2-7. This Court has already
upheld the Magistrate's conclusion that the United States' settlement
negotiations with other theater chains are protected from discovery.
[See]{.underline} [United States v. AMC]{.underline}, CV 99-1034, Order
Denying Defendants' Motion for Review and Reconsideration at 5 (Apr. 12,
2000) (hereinafter "April 12^th^ Order").

Furthermore, delaying resolution of the APA question by four months is
unwarranted because the District Court has already rejected Defendants'
arguments that the United States has engaged in final agency action in
this case. [See]{.underline} Order Granting Plaintiff's Motion to
Dismiss Defendants' Counterclaim at 17-18 (December 17, 1999)
(hereinafter "December 17^th^ Order"). Without final agency action, the
APA does not waive sovereign immunity for this Court to hear Defendants'
counterclaims. Defendants have failed to identify any Department action
that could constitute final agency action as defined by the December
17^th^ Order and binding precedent. Even if Defendants obtain further
documents at the May 4^th^ hearing, there is no agency action that
qualifies as final under these standards. Indisputably, Defendants have
simply used the APA question to divert attention away from the central
issue in this case---[i.e.]{.underline} their discriminatory treatment
of persons with disabilities.

If the Court believes it appropriate, however, the United States would
agree to a thirty-day extension of AMC and AMCE's deadline to reassert
their counterclaim, as the hearing on Defendants' motion to compel
discovery was recently postponed from April 14^th^ to May 4^th^.[^4]

**I. The Court Should Not Delay Resolution of the APA Question for an
Additional Four Months.**

> **A. Defendants' Request for an Extension Is Premature.**

The Department of Justice ("Department") has been designated by Congress
as the agency to monitor and enforce compliance with most provisions of
the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, [et
seq.]{.underline} The United States brought the present action against
Defendants when it discovered Defendants were designing stadium-style
theaters that failed to provide patrons who use wheelchairs access to
seating "comparable" to that offered to other members of the movie-going
public, in violation of Title III of the ADA, 42 U.S.C. §§ 12181-12189,
and the Department's implementing regulations, in particular Standard
4.33.3. [See]{.underline} 28 C.F.R. pt. 36, Appendix A, § 4.33.3
(requiring that wheelchair users be provided "lines of sight comparable
to those for members of the general public.").[^5]

From the beginning of this litigation, however, Defendants have
attempted to turn enforcement of the law on its head, by challenging the
ability of the Department to interpret its own regulations and by
improperly "turning prosecutor into defendant." [See]{.underline}
[Standard Oil Co. v. FTC]{.underline}, 449 U.S. 232, 242-43, 101 S. Ct.
488, 66 L. Ed. 2d 416 (1980). Through their counterclaim based on the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, Defendants have
improperly attempted to prevent the Department from offering a plain
language interpretation of what Standard 4.33.3 means, and the District
Court has already rejected Defendants' first APA-based counterclaim
because it found no final agency action. [See]{.underline} December
17^th^ Order at 14. The Court rejected all of Defendants' arguments that
the United States had engaged in final agency action, but permitted
Defendants to refile their counterclaim at a later date.
[See]{.underline} December 17^th^ Order at 17-18. The date for refiling
was originally fixed at January 31, 2000.

Subsequently, this Court issued a scheduling order granting Defendants'
an almost four-month extension of time to refile their APA counterclaim,
to May 24, 2000. [See]{.underline} February 28^th^, 2000 Order.
Defendants now request an additional four-month extension, one that is
wholly unwarranted under the circumstances.[^6] The hearing on
Defendants' motion to compel further discovery is scheduled for May 4,
2000, before Magistrate Judge Hillman. At a hearing on January 11, 2000,
the Magistrate Judge offered his tentative views that the United States
had properly invoked its privileges, including the deliberative process
and work product privileges, and that the District Court's December
17^th^ Order dismissing without prejudice AMC's APA counterclaim was law
of the case, including its determination that legal briefs and private
negotiations do not constitute final agency action. [See]{.underline}
[Stoltzfus]{.underline} Decl. at ¶ 14; [see also]{.underline} December
17^th^ Order at 10, 12; [see also]{.underline} [Mt. Adams Veneer Co. v.
United States]{.underline}, 896 F.2d 339, 343 (9^th^ Cir. 1990); [New
Jersey Hospital Ass'n v. United States]{.underline}, 23 F. Supp. 2d 497
(D. N.J. 1998); [Duval Ranching Co. v. Glickman]{.underline}, 965 F.
Supp. 1427, 1440 (D. Nev. 1997). He further offered the tentative
conclusion that Defendants' requests for discovery regarding sports
arenas were not relevant to the present action. [Stoltzfus]{.underline}
Decl. at ¶ 14.

The United States anticipates that the Magistrate may resolve the issues
raised by Defendants' Motion to Compel at or soon after the May 4, 2000,
hearing. At that time, the Magistrate Judge may well conclude that the
Defendants are not entitled to any of the privileged or irrelevant
discovery they are seeking with their motion to compel; delaying the
deadline to reassert the APA counterclaim by four months therefore would
not serve the interests of a speedy resolution of the APA question.
Extending the current deadline of May 24^th^ by one month would provide
sufficient time for Defendants to prepare their motion to reassert their
counterclaim, while at the same time avoiding any unnecessary delay if
the Magistrate Judge upholds the Department of Justice's assertion of
privileges.

> **B. The United States Has Cooperated with Defendants by Providing
> Non-Privileged, Relevant Discovery.**

The United States disagrees with Defendants' misrepresentation of the
events in this case as described in Defendants' [ex parte]{.underline}
application. Rather than respond to every inaccurate statement, however,
the United States will address a few issues of relevance here. Most
importantly, despite Defendants' assertions, the United States has
provided over seven thousand pages of relevant, non-privileged discovery
in response to Defendants' broad requests for production and
interrogatories.[^7] [See]{.underline} Stoltzfus Decl. at ¶ 2. In
addition, other documents responsive to Defendants' discovery requests
are available on the Department of Justice's

website, on the Freedom of Information Act and ADA pages, which can be
searched for key words.[^8]

In opposing Defendants' overly broad motion to compel, the United States
has asserted privileges protecting certain documents from discovery,
including the deliberative process privilege, the attorney-client
privilege, attorney work product, and the law enforcement investigative
privilege.[^9] The United States has also argued that certain documents
sought by Defendants, such as those pertaining to sports arenas, are not
relevant to the Department's enforcement of the law in the stadium-style
theater context. The United States has a right and obligation to assert
privileges for documents to which Defendants are not entitled.
[See]{.underline}, [e.g.]{.underline}, [Assembly of the State of Cal. v.
United States Dep't of Commerce]{.underline}, 968 F.2d 916, 920 (9^th^
Cir. 1992) (holding that the main purpose of the deliberative process
privilege is to protect the free and frank exchange of ideas and
opinions in the agency decision-making process); [Dow Jones & Co. v.
Department of Justice]{.underline}, 917 F.2d 571, 573 (D.C. Cir. 1990)
(warning that "the quality of administrative decision-making would be
seriously undermined if agencies were forced to operate in a fishbowl").

This Court has already upheld the United States' objection to turning
over documents included in its settlement negotiations.
[See]{.underline} April 12^th^ Order at 5 (holding that "evidence
pertaining to meetings, discussions, and negotiations, between plaintiff
and other theater owners concerning enforcement of the ADA's
line-of-sight requirements is privileged and not subject to discovery").
To characterize the government's refusal to turn over privileged or
irrelevant discovery as "stonewall\[ing\]" is therefore inaccurate and
inappropriate. [See]{.underline} Defs.' [Ex Parte]{.underline} Motion at
3, 12.

**II. Further Discovery Will Not Yield Any Evidence of Final Agency
Action that Has Not Already Been Rejected by this Court's December
17^th^ Order or Binding Court Precedent.**

Even if Defendants' motion to compel discovery were granted in full,
Defendants' APA-based counterclaim should be dismissed because
Defendants cannot identify any agency action that qualifies as "final"
for purposes of waiving sovereign immunity under the APA, as defined by
this Court's December 17^th^ Order and by binding precedent.
[See]{.underline} 5 U.S.C. § 704 (government must have engaged in "final
agency action for which there is no adequate remedy in a court"); [see
also]{.underline} [Gallo Cattle Co. v. United States Dep't of
Agriculture]{.underline}, 159 F.3d 1194, 1198 (9^th^ Cir. 1998).

In her December 17^th^ Order, District Court Judge Morrow rejected AMC's
arguments that the Department had engaged in final agency action.
Specifically, the Court held that the filing of briefs in litigation
(including [amicus]{.underline} briefs), the decision to file a
complaint, and settlement negotiations and threats of lawsuits with
theater chains do not constitute final agency action. [See]{.underline}
December 17^th^ Order at 10, 11, 12; [see also]{.underline}
[id.]{.underline} at 14 ("Thus, viewed separately or in combination, the
matters AMC characterizes as final agency action are not the kind of
actions that are subject to judicial review under the APA."). The Court
further found that, to the extent it would be relevant if the Department
of Justice had taken an industry-wide position as in [National Automatic
Laundry & Cleaning Council v. Schultz]{.underline}, 443 F.2d 689 (D.C.
Cir. 1970), that "at most, DOJ has communicated with ten members of the
theater industry nationwide, and has not sought to press its
interpretations of Standard 4.33.3 uniformly even among the largest
owners. Consequently, the court concludes the evidence does not
establish that DOJ has engaged in final agency action."
[See]{.underline} December 17^th^ Order at 17. The Court's conclusions
in its December 17^th^ Order represent the law of the case. [United
States v. Alexander]{.underline}, 106 F.3d 874, 876 (9^th^ Cir. 1997).

Although Defendants cite, out of context, oral statements about
discovery made by Judge Morrow at the September 8, 1999 hearing, the
Judge explicitly stated that she was not issuing any ruling on the scope
of discovery. [See]{.underline} Sept. 8, 1999, Tr. at 8:20-24. (Exhibit
A) ("With respect to the issue of the proper scope of discovery, the
Court would make the following comments: It is not issuing any ruling
with respect to that matter today. That matter being, in the first
instance, one to be presented to Judge Hillman."). Furthermore,
Defendants ignore the Court's subsequent final written order, entered on
December 17, 1999, in which the Court addressed the issue of whether the
Department had taken an industry-wide position similar to [National
Automatic Laundry]{.underline}. The Department had filed a supplemental
declaration that it had had communications with less than ten of the
fifty largest theater owners in North America. [See]{.underline}
December 17^th^ Order at 16-17 & 17 n.29. In light of this statement,
the Court concluded that

> the evidence before the court suggests that at most, DOJ has
> communicated with ten members of the theater industry nationwide, and
> has not sought to press its interpretation of Standard 4.33.3
> uniformly even among the largest owners. Consequently, the court
> concludes the evidence does not establish that DOJ has engaged in
> final agency action.

December 17^th^ Order at 17.

This conclusion is supported elsewhere in the December 17^th^ Order. For
example, the Court explicitly held that the Department had not attempted
to articulate an industry-wide policy as in [National Automatic
Laundry]{.underline} but rather had "communicated privately with
individual theater owners to negotiate and resolve its differences with
them. These communications do not have 'the contemplation and likely
consequence of expected conformity.'" [Id.]{.underline} at 13 (quoting
[National Automatic Laundry & Cleaning Council v. Schultz]{.underline},
443 F.2d 689, 698 (D.C. Cir. 1971)). Furthermore, the Court also found
that "\[n\]either settlement negotiations nor threats of suit constitute
final agency action that may be judicially reviewed." [Id.]{.underline}
at 12. As for further discovery, the Court concluded in its written
order that "the parties dispute the proper scope of discovery on this
issue and that multiple discovery matters remained to be resolved."
[See]{.underline} Dec. 17^th^ Order at 17. The Court did not attempt to
resolve those disputes itself.

In that light, Defendants' request for a four-month extension in
refiling their APA counterclaim represents an unnecessary delay in
resolving this question. This Court has already rejected Defendants'
previous attempts to characterize the government's actions as "final
agency action," and Defendants have failed to identify any other action
that might qualify as "final agency action." Defendants' memorandum in
support of its [ex parte]{.underline} application simply seeks to
revisit issues already decided by this Court or that are currently
pending before the Magistrate. [See]{.underline}
[Alexander]{.underline}, 106 F.3d at 877. None of the grounds asserted
by Defendants justify a four-month delay.

Defendants cite an oral recommendation by a Texas Magistrate Judge that
the Department had engaged in final agency action---again, ignoring this
Court's December 17^th^ Order as binding law of the case.
[See]{.underline} [Alexander]{.underline}, 106 F.3d at 876. Defendants'
argument invoking the Texas Magistrate's statement merely attempts to
revisit legal conclusions already resolved by this Court's order,
particularly this Court's conclusion that the filing of an
[amicus]{.underline} brief does not constitute final agency action.
[See]{.underline} Dec. 17^th^ Order at 10. The United States' offering
of a plain language interpretation of its regulations in a court
proceeding simply does not qualify as final agency action that
potentially invokes this court's jurisdiction. [See]{.underline} [Mt.
Adams]{.underline}, 896 F.2d at 343. Furthermore, a District Court in
the Northern District of Ohio has rejected the Texas Magistrate's
reasoning and has reached the same conclusion as this Court, dismissing
a movie theater chain's APA counterclaim for lack of final agency
action. [See]{.underline} [United States v. Cinemark USA,
Inc.]{.underline}, 99-CV-705, Memorandum and Opinion and Order at 6
(Mar. 22, 2000) (hereinafter "Ohio [Cinemark]{.underline} Order")
("Because they do not meet the requirements of finality, Plaintiff's
filing of complaints in their enforcement actions; correspondence
discussing settlement or alleged violations of the ADA; and *amicus*
briefs are not 'final' agency actions.") ([see]{.underline} Exhibit B).
The Texas Magistrate's recommendations themselves are currently under
review by the District Court in the Northern District of Texas, which
held oral argument on the appeal of the Magistrate's ruling on April 21,
2000.

Defendants' citation to recent statements made by the United States
Architectural and Transportation Barriers Compliance Board ("the Access
Board") are also inapposite.[^10] [See]{.underline} Defs.' [Ex
Parte]{.underline} Application at 11 (citing 64 Fed. Reg. 62248, 62278
(Nov. 16, 1999)). The Board's statement that the Department is
attempting to settle particular cases where wheelchair patrons 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 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 resolve violations of the law without resorting
to litigation through settlement negotiations, 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); [see]{.underline} [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) ("Any order for
relief, damages, or levying of a fine can only be made by the district
court, and not by the Attorney General.") ([see]{.underline} Exhibit B).
Defendants' position that the Department's attempts to settle disputes
somehow constitutes final agency action is not only contrary to law,
[see]{.underline} December 17^th^ Order at 12 (citing cases), but also
would have the perverse effect of discouraging settlement in lieu of
litigation.

[Lara v. Cinemark USA, Inc.]{.underline}, 2000 WL 297662 (5^th^ Cir.
Apr. 6, 2000), to which Defendants cite, actually favors the
Department's position that no final agency action is at issue. In
[Lara]{.underline}, 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 \*5. Whether or not the Fifth
Circuit gave the Department's interpretation the proper level of
consideration, it is plain that the Court did not consider it to be
final agency action. Most importantly, the Fifth Circuit did not believe
that the interpretation fixes rights or imposes any legal obligations.
Absent that, the interpretation cannot be final agency action.
[See]{.underline} [Gallo Cattle Co.]{.underline}, 159 F.3d at 1199.

**CONCLUSION**

Another four-month delay to resolve this issue is unjustified under the
circumstances, as none of the information Defendants seek will reveal
final agency action to invoke this Court's jurisdiction. Furthermore,
the Magistrate currently has a hearing scheduled for May 4, 2000, to
resolve Defendants' motion to compel discovery; if the Magistrate Judge
finds that the discovery Defendants seek is privileged or not relevant,
there is no further need to delay final resolution of the APA question.

However, if the Court believes it appropriate, the United States would
agree to a thirty-day extension of AMC and AMCE's deadline to reassert
their counterclaim, as the hearing on Defendants' motion to compel
discovery was postponed from its original date of April 14^th^ to May
4^th^. Likewise, the United States would consent to a thirty-day
extension of the May 22^nd^ hearing on the United States' motion to
dismiss STK's counterclaim.

The Department also requests that if the Court elects to hold a hearing
on this [ex parte]{.underline} application, that the hearing be held
telephonically, as the Department's attorneys are located in Washington,
D.C.

> **Respectfully submitted,**
>
> Bill Lann Lee
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> John L. Wodatch, Chief
>
> Renee M. Wohlenhaus, Deputy Chief
>
> Disability Rights Section
>
> [                                                   ]{.underline}
>
> Jeanine M. Worden
>
> John Albert Russ, IV
>
> Trial Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-6556 (telephone)
>
> \(202\) 307-1198 (facsimile)
>
> Counsel for Plaintiff
>
> United States of America

Dated: April 28, 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 April 28, 2000, I served the following documents,

> **PLAINTIFF UNITED STATES' MEMORANDUM OF POINTS AND AUTHORITIES IN
> OPPOSITION TO DEFENDANTS' [EX PARTE]{.underline} APPLICATION FOR AN
> ORDER ENLARGING THE TIME IN WHICH DEFENDANTS MAY REFILE AN APA
> COUNTERCLAIM**, and
>
> **DECLARATION OF STEPHANIE L. STOLTZFUS SUPPORTING THE UNITED STATES'
> MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' [EX
> PARTE]{.underline} APPLICATION FOR AN ORDER ENLARGING THE TIME IN
> WHICH DEFENDANTS MAY REFILE AN APA 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: April 28, 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: April 28, 2000, at Washington, D..C.

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

[^1]: Defendants fail to explain why an [ex parte]{.underline}
    application was necessary to resolve this deadline issue, rather
    than following the regular motion calendar schedule, given that the
    deadline is approximately one month away, on May 24, 2000. As the
    case [Mission Power Engineering Co. v. Continental Casualty
    Co.]{.underline}, 883 F. Supp. 488 (C.D. Cal. 1995), makes clear, an
    [ex parte]{.underline} application should explain "why the
    accompanying proposed motion for the ultimate relief requested
    cannot be calendered in the usual manner," [id.]{.underline} at 492,
    an explanation Defendants have failed to provide in this case. The
    mere fact that Defendants have not received certain documents from
    the government that the Department believes are privileged or
    irrelevant, an issue currently pending before the Magistrate, "is
    insufficient to justify [ex parte]{.underline} relief."
    [See]{.underline} [id.]{.underline} at 493.

    Furthermore, the United States informed Defendants that it would
    stipulate to a one-month extension of AMC and AMCE's deadline to
    reassert their counterclaim.

[^2]: Although Defendants request the extension for both STK and AMC,
    [see]{.underline} Defs.' [Ex Parte]{.underline} Application at 13,
    in fact the current May 24^th^ deadline only applies to defendants
    AMC and AMCE. STK has already filed an APA-counterclaim when its
    served the United States with its answer in February, 2000. The
    United States currently has a motion to dismiss STK's counterclaim
    for lack of jurisdiction calendered for hearing on May 22, 2000.

[^3]: The Magistrate Judge has also scheduled the United States' motion
    to compel further discovery on the same day.

[^4]: The Magistrate moved this hearing date at the request of the
    government due to an unexpected illness. The Department indicated
    that it would be available for a hearing during the last week of
    April if necessary. After consulting both parties' schedules, the
    Magistrate Judge selected May 4^th^ for the hearing of Defendants'
    motion to compel. The Magistrate later added the United States'
    motion to compel to that same date.

[^5]: Despite Defendants' assertions to the contrary, the United States
    has interpreted Standard 4.33.3 consistently. The Department of
    Justice articulated its plain-language interpretation of Standard
    4.33.3 as applied to stadium-style 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.). It is Standard
    4.33.3, however, and not the Department of Justice's interpretation
    of that Standard, that has binding legal effect.

[^6]: On April 24, 2000, counsel for Defendants informed the United
    States that Defendants would seek an [ex parte]{.underline} order to
    move the deadline for refiling the APA counterclaim by
    [three]{.underline} months. Counsel for the United States indicated
    that the government would agree to a thirty-day extension, in light
    of the fact that the hearing on Defendants' motion to compel
    discovery had been moved from April 14, 2000, to May 4, 2000. The
    parties did not address moving the hearing date for the United
    States' pending motion to dismiss STK's APA-based counterclaim,
    currently scheduled for hearing on May 22, 2000.

    Further discovery will not reveal any agency action that can be
    properly identified as final for purposes of waiving sovereign
    immunity under the APA, in light of this Court's December 17^th^,
    2000 Order and binding Supreme Court and Ninth Circuit precedent.
    [See]{.underline} discussion below. However, in light of the recent
    three-week postponement of the hearing to resolve Defendants' motion
    to compel, the United States would also agree to a thirty-day
    extension of the hearing date for its pending motion to dismiss
    STK's counterclaim.

[^7]: This discovery includes the pleadings and correspondence files for
    several lawsuits, including [Lara v. Cinemark]{.underline}, [Fiedler
    v. AMC]{.underline}, [Arnold v. United Artists]{.underline}, and
    [Lonberg v. Sanborn]{.underline}. The Department has also provided,
    for example, [amicus]{.underline} briefs, summary judgment filings,
    copies of the [Arnold]{.underline} settlement agreement, technical
    assistance documents, public studies on sight lines in movie
    theaters, letters to Congress, newspaper and magazine articles
    discussing accessibility issues at stadium-style theaters, agenda
    and minutes from public hearings in Florida, sight line drawings of
    stadium auditoriums, and talking points for speeches by Department
    of Justice officials. [See]{.underline} Stoltzfus Decl. at ¶ 8.

[^8]: Although Defendants assert that "new defendant STK" should be
    entitled to develop discovery of its potential APA claim,
    [see]{.underline} Defs.' [Ex Parte]{.underline} Application at 3,
    Defense counsel, who represents both STK and AMC, told Magistrate
    Judge Hillman during a February 14, 2000 conference call that STK
    wanted the same discovery that AMC was seeking in its motion to
    compel discovery. [See]{.underline} Stoltzfus Decl. at ¶ 9.

[^9]: Pursuant to the Magistrate Judge's instruction, the United States
    has described to Defendants the nature of each document listed on
    its privilege log, as well as the privileges applicable for each
    document. Of these 316 documents, AMC has decided to challenge the
    privileges asserted for 75. [See]{.underline} Stoltzfus Decl. at ¶
    10-11. The hearing on these documents will be held on May 4, 2000.

[^10]: On page 6 of its [ex parte]{.underline} application, Defendants
    erroneously refers to the Standard 4.33.3 as \"ADAAG § 4.33.3\"
    However, the term \"ADAAG\" properly refers to the Americans with
    Disabilities Act Accessibility Guidelines for Buildings and
    Facilities, a regulation promulgated by the Access Board.
    [See]{.underline} 36 C.F.R. pt. 1191. Under the ADA, the regulations
    promulgated by the Justice Department must be consistent with, but
    are not required to be identical to, the regulations promulgated by
    the Access Board. [See]{.underline} 42 U.S.C. § 12186(c). In 1991,
    the Department adopted the ADAAG as the Department\'s Standards. The
    distinction between the ADAAG and the Standards is important because
    the Justice Department adopted only the text of the ADAAG --- not
    the Access Board\'s Preamble to or interpretations of the ADAAG.