Amicus Curiae Brief — Regal Cinemas, Inc. v. Stewmon

(4) |

No. 03-641

In the Supreme Court of the Anited States

REGAL CINEMAS, INC. AND EASTGATE THEATRE, INC.,

PETITIONERS

KATHY STEWMON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

JAMES J. RAGGIO

General Counsel

Architectural and

Transportation Barriers

Compliance Board

Washington, D.C. 20004

THEODORE B. OLSON

Solicitor General

Counsel of Record

R. ALEXANDER ACOSTA

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

GREGORY B. FRIEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

AAV OR NN

MAY Cv éuu°

QUESTIONS PRESENTED

Pursuant to Title III of the Americans with Disabilities

Act of 1990, 42 U.S.C. 12181 et seq., a Department of Justice

regulation requires that wheelchair spaces in newly con-

structed assembly areas “provide people with physical dis-

abilities * * * lines of sight comparable to those for

members of the general public.” 28 C.F.R. Pt. 36, App. A,

§ 4.33.3. The questions presented are:

1. Whether, in stadium-style movie theaters with 300 or

fewer seats, wheelchair seating that is limited to the very

front rows of the theater and that is not part of the stadium-

style seating complies with the regulation’s requirement

that “lines of sight” for individuals with disabilities be

“comparable” to those enjoyed by the general public.

2. Whether a court should defer to an administrative

agency’s interpretation of its own regulation, when the inter-

pretation is adopted without notice and comment under the

Administrative Procedure Act, 5 U.S.C. 551 et seq.

3. Whether an administrative agency’s interpretation of

a regulation may be enforced retroactively, even though the

interpretation was adopted without notice and comment

under the Administrative Procedure Act, 5 U.S.C. 551 et seq.

TABLE OF CONTENTS

STEERS Ee ee a eT 2

EET SEE Re Ee a a OE CC a 7

a scsleseeesioinontin’ 20

| TABLE OF AUTHORITIES

Cases:

Adarand Constructors, Inc. v. Mineta, 534

Sa da alae bh hotiehaenanpehienddenenaonioeniienacinten 19

Akzo Nobel Salt, Inc. v. Federal Mine Safety &

Health Review Comm’n, 212 F.3d 1301 (D.C. Cir.

STE sisi lsat ddan inellibetatesaseditieeieanssishiomnnenenbniesnatnennghems 15

Auer v. Robbins, 519 U.S. 482 (1997) ........ssccsccccscsscsessseees 14

Appalachian Power Co. v. EPA, 208 F.3d 1015

a en TIIITTEY hci asiahinciaieseaceabubinniiieinnananbnisiennioeinsdinanton 16

Barnhart v. Walton, 535 U.S. 212 (2002) ............csccsceceseeee 14

Board of Trs. of the Univ. of Ala. v. Garrett, 531

IIIT sciatic hieeehcdgiohnseahchaionndemnniontidarciendinnnins 9

Bowles v. Seminole Rock & Sand Co., 325 U.S.

REEFS SERRE say oie noe een ane a 10, 14

Brandt v. Village of Chebanse, 82 F.3d 172 (7th

ne SEY (aiseitn abcde aicaltasbiailecalinainnekiniiadlininenietiahininneninesinanmennn 16

Caruso v. Blockbuster-Sony Music Entm’t Ctr.,

ee FO GARE. BIO eienticicinmniniennnsncaneniinstniniinnssnnionsennes 15

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

es Ie Fe CD siciertersisiiewntnnntcnsenenntinincenitanienmnerinass 14

Christensen v. Harris County, 529 U.S. 576

____RARRTPESSIC EVEL ER CN Tt ve rae eRe on En OR 14

Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557

(7th Cir. 1999), cert. denied, 528 U.S. 1106

EE ERREAE ET Sea eer Ree ee ee oe 15

Edelman v. Lynchburg College, 535 U.S. 106 (2002) ...... 16

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

a I IED Wisc caaniedancginennmnnnrincnanenibasintattnniendintoiomninn 19

(IIT)

a“

IV

Cases—Continued: Page

Independent Living Res. v. Oregon Arena

Corp., 982 F. Supp. G86 (D. Or. 1997) .......ccosccsercrsersessererse 18

Keys v. Barnhart, 347 F.3d 990 (7th Cir. 20038) «0... 16

Lara v. Cinemark USA, Ic., 207 F.3d 783 (Sth

Cir.), cert. denied, 531 U.S. 944 (2000)... ecesseeeeees 6, 7, 16

Lonberg & United States v. Sanborn Theaters, Inc.,

Pe, FE FR: GE) wicietsierenssinonnicnesiomonsiiclibanniniaiiianien 16

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367

CORED icsscinssiinipanniciansiaseninaeninieciiientisipiaiaivatannniieneaaeiiaidiahiaint 19

Meineker v. Hoyts Cinemas Corp., 69 Fed. Appx.

BD 8 Ge, IRIS) sevesersnscenerinenssronennennsinaneneinnimnnionnisanene 9, 11, 15, 20

National Wildlife Fed’n v. Browner, 127 F.3d 1126

CTE, CP BRAD sicriciscsincininictensnsicciecdnatiainiinimininnninininns 15

Paralyzed Veterans v. D.C. Arena L.P., 117 F.3d

579 \ D.C. Cir. 1997), cert. denied, 523 U.S. 1003

SIDI ssi scsinisigsieclnaceaaeleiiehiletdiiieiniiaabsinihiair 15, 20

Robertson v. Methow Valley Citizens Council, 490

Sie Ne CD eiseieiieniescenirwiitinintieednictnibiinsaninhnnniiiindaiieien 14

Sketoe v. Exxon Co., USA, 188 F.3d 596 (5th Cir.

1999), cert. denied, 529 U.S. 1057 (2000) oo... ceeeeeeesees 15

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

EINE? sniniinnisioicasisniiaaiisalitietasnbietscnnicaiiahainstudannaiapndnaninsdniabiinn 10, 14, 15

United States v. AMC Entm’t, Inc., 232 F.

Supp. 2d 1082 (C.D. Cal. 2002) .........cscscerssessssereees 5, 11, 16, 19

United States v. Cinemark USA, Inc., 348 F.3d

569 (6th Cir. 2003), petition for cert. pending,

No. 03-1131 (filed Feb. 4, 2004) wc eeseseeee 7, 16, 19, 20

United States v. Cleveland Indians Baseball Co.,

SE SF Se TTD wiieniiiiessssnintisinicngatiaceeniniiaitabaiibaiitieaimiiamiicianin 14

United States v. Hoyts Cinemas Corp., 256

Bae, SE FO i. Ba SE) siscenaicrsnsccitincsvinsotentnnnienss 16, 19

United States v. Hoyts Cinemas Corp., Nos. 03-1646,

Re Te CIE sccnietisensscesineniciccnssintienisisnaneninnonnen 10

United States v. Virginia, 518 U.S. 515 (1996) «ee 19

Virginia Military Inst. v. United States, 508

RFs ee GE ctesciieiemesnincitesnnidsncsteiusanicbsaenebatatiaaieabiiitaliinsaainimiain 19

Statutes and regulations: Page

Washington State Dep't of Social & Health Servs.

v. Guardianship Estate of Keffeler, 537 U.S. 371

(2003) .... oceeneciigeimenenisnnbsbennnnsaneieeieveenand 13-14

Americans with Disabilities Act of 1990, 42 U.S.C.

ere OF OU, sciditiiniintasditiseneeniaens 2

Oe Os TED ‘ssntinssencniniinincinieainiiaianiiaiinnankaas 2

42 US.C. UZIOMANS) ....cccceccovscsresseesesse 12

Eas SI sniilaciesienciiiiniohtaitintiasitama 2

ae TAA. TTT) icellsscnsessiuinrinieslaiaivtaiaaniiabiia 2

OB UF Ea STD sneshsvrrsitinninhitaineetncieniniinieneaibsimnamaiaii 2

eA, Te wiicicesssleeceeseheb sini 2, 2

TICE? sstiensnennnstidnenitaniaaicnmaeae 2

Se Se Be stncicsiieiiisinitanmialiniigbaudua susan 3,8

ae FRE siscicscimaenecliniinnassaaidldaanonnaas 3,8

ee eM NT 3,8

28 C.F.R. Pt. 36:

TRA D sitensciinsitaniconsieeiinsaascatipiniiniteitaialimiaelaie 3

IE: Th sciiiicainsintinnniateitiapiiiiiaicapseaianaaiaiiaiai manera) 3

§ 4.33.3 ...ccecscssees passim

Miscellaneous:

American Institute of Architects, Ramsey/Sleeper

Architectural Graphic Standards (student ed.

1989) .. cieen 10

Architectural and Transportation Barriers Compliance

Board:

Americans with Disabilities Act Accessibility

Guidelines Manwal (1998) ........sscssssccecssssesesesssssseseee 12

Draft Final ADA and ABA Accessibility

Guidelines (Apr. 2002) ...... 3, 4,8

Revisions of ADA and ABA Accessibility

Guidelines (1999) <http://www.access-board.gov/

ada-aba/status.htm> ........ccecsccecesssessssseseeeees . 34

VI

Miscellaneous—Continued: Page

Harold Burris-Meyer & Edward C. Cole, Theaters

ANd AUuditoriuMs (2d Cd. 1964) ........csccccsesseececcesceeseccesees 11

Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (1998) ...........

56 Fed. Reg. (1991):

i, TRIGA. sceresnesseresiisnicsscenicssannctsenienneiisninaniseiphisiiiiadiiasaiaabianmibasiias 3

Be TRS cesssscscreasesenseonsnnenneessentnionnieteeneineionananssinnneseinanannenns

64 Fed. Reg. (1999):

, GER ssenisstninnpsrsinniininaiianaibiaiaminiiaains 12

DB. GEE Ie nriisusternnnapiiiiiieaiinimamaeimmnaaa 12,13

BD GIT ssnsicinnnsetentsisninnnenentnnnitaaaiinnedeiamamatiaaie 12

Be. GER GE sensrnrcisnrsseinsesssmniniahnneantiatiiiadaiagiiinaniiininanias :

OT Fd. Tete, EEO IGE cceviesnvssmsnerninnninsninatniasianianieianiain 3

George C. Izenour, Theater Design (1977) .......ssesseseeeeseeees 10

Letter from Merrily Friedlander, Acting Chief of the

Coordination and Review Section, Civil Rights

Div., Dep’t of Justice, to Daniel L. Hesse,

Director/Eng’r, Yakima County Public Works Dep’t

CONOY, SE, RED csn<sesccernnnisssnnsabadennianenbsisinavelpteiaibianibaianimaaaniiiliin 18

National Ass’n of Theatre Owners, Position Paper on

Wheelchair Seating in Motion Picture Theatre

Asetchorteswnn Goat. ST, CODED) cxsivessniinnsisimniiionanssisitinniiictniasinictinn 11

National Council on the Handicapped, On the Thres-

hold of Independence (1988) ..........csssseccssssecessssescesesesesrees 2

Office of Information and Regulatory Affairs Exec.

Order Submissions Under Review (May 28, 2004)

<http://www.whitehouse/gov/omb/library/

CSEEIEERIAINEE MAMTIP snenessnnnniegionssinsieniilinisianiinneiaiineisaibaaiiaainaitiins 4

John Scott Russell, Treatise on Sight Lines and Seating

CREED) ..1»es1sniennresnnseeanisieninsasnininniisiainnagenaiesineiliseiaammndiaanliads 11

Society of Motion Picture and Television Engineers:

EG 18-1989, Engineering Guideline: Design of

Effective Cine Theaters (Dec. 19, 1989), reprinted in

99 Soc’y Motion Picture & Television Engr’s J. 494

FUND TIDE wnccevescicviieensenitenibitsnnteniasesiainesinienaainaninaaaanniiaia 10

EG 18-1994, Engineering Guideline: Design of

Effective Cine Theaters (1994) ........c.cccscsssesssseesesseseeres 10

Webster’s Ninth New Collegiate Dictionary (1991) ........... 10

Jn the Supreme Court of the Anited States

No. 03-641

REGAL CINEMAS, INC. AND EASTGATE THEATRE, INC.,

PETITIONERS

Vv.

KATHY STEWMON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is filed in response to the Court’s order inviting

the Solicitor General to express the views of the United

States. The central question in this case is whether the

Department of Justice has reasonably interpreted its own

regulation, which requires that wheelchair users in movie

theaters be afforded “lines of sight” that are “comparable” to

those enjoyed by the general public, to prohibit movie

theaters from relegating all wheelchair users to the worst

seats in the very front of the theater and excluding them

entirely from the benefits of modern stadium-style theater

designs. That issue does not warrant further review both

because forthcoming regulatory amendments are expected

to address and resolve the interpretive question that peti-

tioners raise and because the Justice Department’s applica-

tion of its regulation fully comports with longstanding

administrative principles. Beyond that, petitioners’ attempt

to obtain, on interlocutory appeal of a liability ruling, this

Court’s review of purely hypothesized equitable relief that

has not been, and may never be, ordered by the lower court

(1)

2

or any other court does not satisfy this Court’s established

criteria for granting certiorari.

STATEMENT

1. The Americans with Disabilities Act of 1990 (Dis-

abilities Act), 42 U.S.C. 12101 et seqg., establishes a “com-

prehensive nationa! mandate for the elimination of dis-

crimination against individuals with disabilities,” 42 U.S.C.

12101(b)(1), including in “such critical areas as * * * public

accommodations * * * [and] recreation.” 42 U.S.C.

12101(a)(3).' Title III of the Disabilities Act mandates that:

[nJo individual shall be discriminated against on the basis

of disability in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accom-

modations of any place of public accommodation by any

person who owns, leases (or leases to), or operates a

place of public accommodation.

42 U.S.C. 12182(a). The “public acecommodation{[s]” covered

by Title III include “a motion picture house, theater, concert

hall, stadium, or other place of exhibition or entertainment,”

and an “auditorium, convention center, lecture hall, or other

place of public gathering.” 42 U.S.C. 12181(7)(C) and (D).

Congress defined the prohibited forms of discrimination to

include “a failure to design and construct facilities for first

occupancy [after January 26, 1993], that are readily accessi-

ble to and usable by individuals with disabilities.” 42 U.S.C.

12183(a)(1).

To implement those new construction requirements, Con-

gress directed the Attorney General to promulgate regula-

! A study submitted to Congress by the National Council on the

Handicapped (currently known as the National Council on Disability)

revealed that two-thirds of persons with disabilities had not attended a

movie or sporting event in the past year; three-fourths had not seen live

theater or music performances. On the Threshold of Independence 16

(1988).

3

tions that are consistent with minimum guidelines issued by

the Architectural and Transportation Barriers Compliance

Board (Access Board). See 42 U.S.C. 12186(b) and (ce), 12204.

The Department of Justice accordingly issued final regu-

lations establishing accessibility requirements for new con-

struction that incorporated the Access Board’s Americans

with Disabilities Act Accessibility Guidelines (Accessibility

Guidelines). See 28 C.F.R. 36.406(a), Pt. 36, App. A; 56 Fed.

Reg. 35,544, 35,546 (1991). One of the Department’s regu-

lations is Standard 4.33.3, which requires that, in movie

theaters and other public assembly areas:

Wheelchair areas shall be an integral part of any fixed

seating plan and shall be provided so as to provide people

with physical disabilities a choice of admission prices and

lines of sight comparable to those for members of the

general public.

28 C.F.R. Pt. 36, App. A, § 4.33.3 (Standard 4.33.3).

The Access Board is close to completing a multi-year

revision of its Accessibility Guidelines. See Access Board,

Revision of ADA and ABA Accessibility Guidelines, <http://

www.access-board.gov/ada-aba/status.htm.> The Board

published a notice of proposed rulemaking in 1999, 64 Fed.

Reg. 62,248-62,538 (1999), and made public its “draft final

guidelines” in April 2002. See 67 Fed. Reg. 15,509 (2002).

Those amended guidelines make clear that, in assembly

areas of more than 300 seats, wheelchair spaces shall be

dispersed and shall provide wheelchair users a choice “of

seating locations and viewing angles substantially equivalent

to, or better than,” those “available to all other spectators.”

Access Board, Draft Final ADA and ABA Accessibility

Guidelines § 221.2.3 (April 2002). The draft final guidelines

also state that vertical dispersal of wheelchair spaces would

not be required in assembly areas of 300 seats or less if the

wheelchair seats provided “viewing angles that are equiva-

ee |

4

lent to, or better than, the average viewing angle provided in

the facility.” Jd. § 221.2.3.2 (emphasis omitted).

The Access Board unanimously approved its revised

guidelines in their final form on January 14, 2004, <http://

www.access-board.gov/ada-aba/status.htm>, and submitted

- them to the Office of Management and Budget for review

and clearance pursuant to Executive Order No. 12,866, 58

Fed. Reg. 51,735 (1993). OMB has not yet completed that

process. See Office of Info. & Regulatory Affairs Exec.

Order Submissions Under Review (May 28, 2004), <http://

www.whitehouse.gov/omb/ library/ OMBREGSP.html>.

2. a. The mid-1990s saw a revolution in movie theater

design with the advent of “stadium-style” seating. Tradi-

tional movie theaters were designed with rows of seats on

gently sloping floors. In 1995, the first “stadium-style”

movie theater opened in the United States. As the name

suggests, the seating plan for such theaters mimics that of a

stadium, where the seats are placed on elevated tiers, with

each row of seats rising up to 18 inches above the row in

front of it. Pet. App. 3a-4a; Pet. 2. Some stadium-style

theaters retained a small, traditional-style area with seats on

a flat or sloped floor that are close to the movie screen and

that are situated in front of and significantly lower than the

stadium section. See Pet. App. 4a. The stadium-style

theaters proved to be very popular among customers, caus-

ing a “boom in stadium-style theater construction” across

the country. AMC Br. 3; see Pet. 2.

Some of the new theaters were designed in a manner that

included wheelchair-accessible seating in the stadium-seat-

ing area. Pet. App. 4a n.3. In other theaters, however, the

stadium-style section can be accessed only by stairs, and

wheelchair users are restricted to the traditional section

immediately in front of the movie screen. See id. at 4a, 28a.

Seats that close to the movie screen have extreme viewing

angles that often cause significant physical discomfort and

5

high levels of image distortion. See id. at 4a-Ga, 14a-l5a &

n.7, 17a. Patrons in those seats may have to tilt their heads

back at an uncomfortable angle to see the whole picture and

may experience blurry vision, dizziness, and nausea because

of the difficulty of focusing their eyes on the film. See id. at

5a-6a, 17a. For that reason, the National Association of

Theatre Owners previously acknowledged that seats in the

very front rows are the “least desirable” and “the last to be

taken.” See United States v. AMC Entm’t, Inc., 232 F.

Supp. 2d 1092, 1101 (C.D. Cal. 2002).

b. Respondents are wheelchair users who have at-

tempted to view movies in six of petitioners’ stadium-style

movie theater complexes. In the vast majority of peti-

tioners’ theaters at issue in this case, wheelchair users are

required to sit in the non-stadium-style area very close to

the screen. In 16 of the theaters, all wheelchair spaces are in

the front row. Some of those seats are only 11 feet from the

screen. Pet. App. 3a-4a & n.3; C.A. E.R. 40-41, 43-58.

Respondents filed suit under Title III of the Disabilities

Act, alleging that the theaters violated the requirement in

Standard 4.33.3 that lines of sight be comparable by creating

“significant disadvantages for wheelchair-bound patrons.”

Pet. App. 4a. In particular, while general public seating

provided an average vertical viewing angle to the screen of

20 degrees, the viewing angles in the wheelchair locations

right in front of the screen ranged from 24 to 60 degrees and

averaged 42 degrees. [bid. That “tremendous disparity” in

lines of sight was exacerbated by the general inability of

customers in wheelchairs to slump or recline their bodies to

compensate for the unfavorable viewing angles. Jd. at 5a;

see id. at 15a n.7 (“uncontroverted evidence” that the view-

ing angles are “objectively uncomfortable”). Respondents

endured significant physical difficulties and discomfort in

trying to watch movies in petitioners’ theaters. Jd. at 5a-6a

(“[I]t made me dizzy trying to focus. * * * I only lasted

ee eee

ee eee

6

about 15 minutes.”); id. at 6a (view made patron “nauseous

and gave her a headache”).

The district court granted summary judgment to peti-

tioners. Pet. App. 27a-39a. “[T]Jempting as it [was] to rely

on the ‘plain meaning’ of the regulation” (id. at 35a), the

district court chose instead (id. at 32a-36a) to track the Fifth

Circuit’s decision in Lara v. Cinemark USA, Inc., 207 F.3d

783, cert. denied, 531 U.S. 944 (2000), which held that the

regulatory requirement that patrons in wheelchairs be

offered “comparable” “lines of sight” does not require “any-

thing more than that theaters provide wheelchair-bound

patrons with unobstructed views of the screen,” id. at 789.

3. The court of appeals reversed and entered summary

judgment on liability for the respondents. Pet. App. la-26a.

The court held that the Department of Justice reasonably

construed its “comparable” “lines of sight” requirement in

Standard 4.33.3 to encompass a patron’s viewing angle to the

screen. The court relied on the “plain meaning of the regu-

lation both in general and as understood in the movie theater

industry.” Jd. at 15a. The court also concluded that the

Department’s interpretation was consistent with the pur-

pose of Title III:

In the theaters at issue in this case, wheelchair-bound

movie theater patrons must sit in seats that are ob-

jectively uncomfortable, requiring them to crane their

necks and twist their bodies in order to see the screen,

while non-disabled patrons have a wide range of com-

fortable viewing locations from which to chouse. We find

it simply inconceivable that this arrangement could

constitute “full and equal enjoyment” of movie theater

services by disabled patrons.

Id. at 17a.

pm

7

Judge Kleinfeld dissented. Pet. App. 18a-26a. He agreed

that the majority “is rightly troubled by the notion of a

wheelchair ghetto in one part of the movie theater with sight

lines worse than those of the other patrons,” but believed

that problem could be addressed through the requirement

that wheelchair seating be an “integral part” of the seating

plan, where the “lines of sight cannot be substantially

different from those of seats available for the general

public.” Jd. at 21a. Judge Kleinfeld further criticized the

majority for failing to provide a detailed “floorplan” for

theater owners. Jd. at 26a.

DISCUSSION

1. A Department of Justice regulation implementing

Title III of the Americans with Disabilities Act requires that

patrons in all assembly areas be afforded “lines of sight

comparable to those for members of the general public.”

28 C.F.R. Pt. 36, App. A, § 4.33.3. The “core area of

disagreement” for which petitioners seek this Court’s review

(Pet. Reply 3; see id. at 4) is whether that regulation

requires that individuals with disabilities be afforded a

comparable ability to view the screen or whether it merely

requires that the view for disabled patrons not be ob-

structed. The Fifth Circuit has held that the regulation

requires only that wheelchair patrons be afforded “unob-

structed views of the screen.” Lara v. Cinemark USA, Inc.,

207 F.3d 783, 789, cert. denied, 531 U.S. 944 (2000). By

contrast, the court of appeals here, Pet. App. 12a-17a, and

the Sixth Circuit, in United States v. Cinemark USA, Inc.,

348 F.3d 569, 576 n.6 (2003), petition for cert. pending, No.

03-1131 (filed Feb. 4, 2004), have held that the regulation also

requires comparable viewing angles to the screen for indivi-

duals with disabilities. That conflict does not merit this

Court’s review for three reasons.

8

First, that “core area of disagreement” over interpreta-

tion of the Department’s regulation is of no enduring

importance because the dispute will be addressed and likely

resolved by the Access Board’s forthcoming promulgation of

its updated Accessibility Guidelines, which will be followed

by the Department of Justice’s conforming amendments to

its own regulations. See Access Board, Draft Final ADA

and ABA Accessibility Guidelines §§ 221.2.3, 221.2.3.2 (Apr.

2, 2002). Furthermore, given the substantial weight that the

Fifth Circuit put on what it perceived to be the Access

Board’s ambivalence about the coverage of viewing angles,

207 F.3d at 789, issuance of the updated guidance will largely

remove the analytical underpinnings of that decision and

thus may well effectively eliminate the circuit conflict.

There is no need for this Court to exercise its certiorari

jurisdiction to address an issue of regulatory interpretation

that is presently being addressed directly by the relevant

regulatory bodies themselves. Further, the issuance of the

Access Board’s guidance, to be followed by the Department

of Justice’s amendment of the regulation at the center of the

present litigation (Standard 4.33.3), will fundamentally

change the terms of the debate on the question presented.

The implications of those amendments should be addressed

by the lower courts in the first instance.”

Second, the conflict is relatively shallow. Only the Lara

court has rejected the Justice Department’s interpretation of

2 Amicus National Association of Theatre Owners (NATO) emphasizes

(Br. 2-3 & App. A) that, in the midst of its members’ litigation over this

issue, it requested that the Justice Department undertake rulemaking to

clarify the coverage of viewing angles. That regulatory process is now

underway. As explained in the Justice Department’s response, moreover,

the Department’s obligation to ensure that its regulations comport with

the Access Board’s “minimum guidelines,” 42 U.S.C. 12186(b) and (c),

12204, has caused the Department to postpone issuing its own amend-

ments until the Access Board completes its revisions. See NATO Br. App.

B.

a

9

its own regulation. The Sixth Circuit recently joined the

court of appeals in this case in sustaining the Department’s

interpretation. The issue is being actively litigated within

the First and Second Circuits. See United States v. Hoyts

Cinemas Corp., Nos. 03-1646, 03-1787 & 03-1808 (1st Cir.

argued Feb. 6, 2004); Meineker v. Hoyts Cinemas Corp., 69

Fed. Appx. 19 (2d Cir. 2003) (remanding case).’ If those

circuits join the rulings of the Sixth and Ninth Circuits, and

if the Fifth Circuit is ever presented with another case

raising the same issue, then that court might reconsider its

position—a prospect that is heightened by the forthcoming

regulatory amendment.

Nor is this an area in which uniformity is especially vital.

Building codes, design requirements, and zoning restrictions

vary in manifold ways not just from circuit to circuit, or even

from state to state, but often from county to county and

town to town. In addition, every State has its own law

providing (at varying levels) protection for the rights of

individuals with disabilities. See Board of Trs. of the Univ. :

of Ala. v. Garrett, 531 U.S. 356, 368 n.5 (2001). Theater

owners and their construction companies and architects thus

already confront and deal with variations in the laws and

regulations governing theater design on a daily basis.’ Peti-

tioners have identified no reason why they cannot similarly

accommodate this shallow conflict on the scope of Standard

4.33.3 for the time remaining until the clarifying amend-

ments issue. To the extent that petitioners seek a uniform

3 Petitioner’s parent company now owns Hoyts Cinemas, Meineker, 69

Fed. Appx. at 21 n.1, and paid for the preparation of both the petition and

Hoyts’ amicus brief in this case, Hoyts Br. 1 n.1.

+ Petitioners’ own amicus makes this point quite forcefully. NATO Br.

11 (“The design and construction of a modern motion picture theatre

* * * requir[es] the accommodation of a myriad of economic, aesthetic

and legal constraints. Architects and other design professionals are

required to consider and ensure compliance with all federal, state and local

buiding codes, safety regulations and accessibility requirements.”).

Se

10

model for new construction, nothing in the Fifth Circuit’s

decision prevents them from complying with the require-

ments of the Disabilities Act as enforced by the Sixth and

Ninth Circuits.

Third, and relatedly, the court of appeals’ decision in the

present case is correct—and the Lara court’s analysis is such

a stark departure from well-established principles of regula-

tory interpretation that the circuit split is unlikely to widen.

The Justice Department’s interpretation of “comparable”

“lines of sight” as encompassing patrons’ viewing angles

must be sustained unless it is “plainly erroneous or incon-

sistent with the regulation.” See, e.g., Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). The

Department’s interpretation comports with the ordinary

understanding of “lines of sight.” See Webster’s Ninth New

Collegiate Dictionary 695 (1991) (“line[] of sight” is “a line

from an observer’s eye to a distant point toward which he is

looking”). It also tracks long-established understandings of

the phrase within the theater industry.” Indeed, petitioners’

> See Society of Motion Picture & Television Engineers (SMPTE), EG

18-1989, Engineering Guideline: Design of Effective Cine Theaters, at 3

(Dec. 19, 1989), reprinted 99 Soc’y Motion Picture & Television Engr’s J.

494 (June 1990) (“Since the normal line of sight is 12° to 15° below the

horizontal, seat backs should be tilted to elevate the normal line of sight

approximately the same amount. For most viewers, physical discomfort

occurs when the vertical viewing angle to the top of the screen exceeds

35°, and when the horizontal line of sight measured between a perpendicu-

lar to his seat and the centerline of the screen exceeds 15°.”); id. at 495

(“The nearest viewer’s vertical line of sight should not exceed 35° from the

horizontal to the top of the projected image.”); SMPTE, EG 18-1994,

Engineering Guideline: Design of Effetive Cine Theaters (Mar. 25, 1994)

(same); American Institute of Architects, Ramsey/Sleeper Architectural

Graphic Standards 17 (student ed. 1989) (discussing the “sightline from

the first row to the top of the screen” in terms of maximum recommended

angle); George C. Izenour, Theater Design 4 (1977) (“A good sight line is

one in which there are no impediments to vision and angular displacement

(vertical and horizontal) of the eyes and head falls within the criteria for

11

own amicus, the National Association of Theatre Owners

(NATO), took the position immediately prior to the first

construction of stadium-style theaters in this country, that

“lines of sight are measured in degrees,” not just in terms of

whether a view is obstructed. See NATO, Position Paper

on Wheelchair Seating in Motion Picture Theatre Auditori-

ums 6 (Jan. 27, 1994); see United States v. AMC Entm't,

Inc., 232 F. Supp. 2d 1092, 1101-1102 (C.D. Cal. 2002)

(discussing repeated statements of NATO, prior to a change

in position by 2000, acknowledging that “lines of sight are

most commonly measured in degrees”). Hoyts Cinemas,

which is owned by the same parent company as petitioner,

see note 3, supra, was aware in 1991 that sight lines ineluded

viewing angles. Meineker, 69 Fed. Appx. at 25 nn.7 & 9. The

Justice Department’s interpretation thus rests upon plain

meaning, backed by an established industry understanding

that the phrase “lines of sight” encompasses far more than a

binary inquiry into whether the viewer’s vision is ob-

structed.

Petitioners’ (Pet. 8, 17) and the dissenting judge’s (Pet.

App. 20a) suggestion that the Access Board interpreted

“lines of sight” to exclude viewing angles is flatly incorrect.

In 1998, the Access Board published a technical assistance

manual that explained, in a section titled “Sight Lines,” that

comfort.”); id. at 3 (diagram showing “Normal Sight Line” as 15 degrees

below horizontal); id. at 284 (“distance and angular displacement” are

among the types of “sight line problems” found in auditoriums); id. at 71,

598-599 (excerpting a treatise from the 1830s, John Scott Russell, Treatise

on Sight Lines and Seating (1830), which provided that the “best” seats in

an auditorium “are not so far forward as, by being immediately under the

speaker, to require [one] to look up at a painful angle of elevation”);

Harold Burris-Meyer & Edward C. Cole, Theaters and Auditoriums 69

(2d ed. 1964) (“Maximum tolerable upward sight line angle for motion

pictures” was 30 degrees from the horizontal to the top of the movie

screen.); ibid. (viewing experience will be adversely affected by “upward

sight lines in the first two or three rows which are uncomfortable and

unnatural for viewing stage setting and action”).

12

“(bjoth the horizontal and vertical viewing angles must be

considered in the design of assembly areas.” Access Board,

Americans with Disabilities Act Accessibility Guidelines

Manual 117 (1998). Likewise, in November 1999, the Board

explained that,

[a]s stadium-style theaters are currently designed,

patrons using wheelchair spaces are often relegated to a

few rows of each auditorium, in the traditional sloped

floor area near the screen. Due to the size and proximity

of the screen, as well as other factors related to stadium-

style design, patrons using wheelchair spaces are

required to tilt their heads back at uncomfortable angles

and to constantly move their heads from side to side to

view the screen. They are afforded inferior lines of sight

to the screen.

64 Fed. Reg. 62,248, 62,278 (1999). The Access Board’s

simultaneous statement in 1999 that it was considering

whether to include “specific requirements,” ibid., on viewing

angles in its final rules was simply an acknowledgment that

the Accessibility Guidelines did not yet “include specific

technical provisions to assist design professionals.” Jd. at

62,277. But the fact that the Access Board’s own technical

publication lacked design specifications does not mean that

the Justice Department’s regulation lacked the substantive

coverage of viewing angles. _

That ordinary understanding of the phrase “lines of sight”

also serves the central purpose of Title III of the Disabilities

Act, which is to preclude the “outright intentional exclusion”

of individuals with disabilities and to ensure their “full and

equal enjoyment of the goods, services, facilities, privileges,

[and] advantages” offered by public accommodations. 42

U.S.C. 12101(a)(5), 12182(a). As petitioners themselves

describe it (Pet. 2, 6), the advent of stadium-style seating in

movie theaters marked a sea change in the viewing ex-

13

perience for theater patrons. The Department’s interpreta-

tion of its regulation ensures that theater designs do not

leave customers in wheelchairs on the sidelines and do not

completely exclude them from experiencing and enjoying the

benefits of that new innovation in movie-watching vantage

points. Indeed, petitioners’ position would have the per-

verse effect of causing the advent of stadium-style seating to

enhance the viewing experience of patrons without disabili-

ties while simultaneously immiserating patrons with dis-

abilities.°

Moreover, petitioners’ and the Lara court’s reading of the

regulation as prohibiting only obstructed views lacks any

anchor in the regulatory text. The word “unobstructed” ap-

pears nowhere in Standard 4.33.3—a conspicuous omission if

that were the regulation’s sole raison d’étre. Their cramped

reading of the regulation also overlooks that Standard 4.33.3

applies not just to movie theaters, but to the entire swath of

public assembly areas, including stadiums, live theaters,

opera houses, and concert and lecture halls. It would

confound congressional purpose to reduce the broad promise

of “full and equal enjoyment” of “comparable” “lines of sight”

in all those different venues to nothing more than a re-

quirement that wheelchair users not be seated behind poles.

2. Petitioners also seek this Court’s review (Pet. 18-26)

of the court of appeals’ holding that the Department’s inter-

pretation of its own regulation should be accorded deference.

That claim does not merit further review. This Court has

repeatedly held that an agency’s interpretation of its own

6 Given the enormous “popularity with the theater-going public” of

stadium-style seating (Pet. 2)—a consumer demand that prompted a

nationwide reconfiguration of theaters (Pet. 2, 6)—petitioners’ litigation

position that the few remaining non-stadium style seats located in the

very front rows of the theater are of “equal desirability” (Pet. 9 n.8) defies

commonsense and common experience. See 64 Fed. Reg. at 62,278 (Access

Board notes the “superior[ity]” and “popularlity]” of stadium-style

seating).

14

regulation is entitled to substantial deference. See, e.9.,

Washington State Dep’t of Soc. & Health Servs. v. Guardian-

ship Estate of Keffeler, 537 U.S. 371, 387-388 (2003) (“{T]Jhe

Commissioner’s interpretation of her own regulations is

eminently sensible and should have been given deference

under Auer v. Robbins, 519 U.S. 452, 461 (1997).”).’ Certio-

rari review is not warranted to say again what the Court

said unanimously just last year.

Petitioners contend (Pet. 19-20; Pet. Reply 7-8) that the

court of appeals’ decision conflicts with Christensen v.

Harris County, 529 U.S. 576 (2000). It does not. Christen-

sen concerned the level of deference due to agency interpre-

tations of statutes, under Chevron U.S.A. Inc. v. Natural Re-

sources Defense Council, Inc., 467 U.S. 837 (1984). See

Christensen, 529 U.S. at 587. With respect to the separate

question of deference to an agency’s interpretation of its own

regulation, Christensen simply applied Auer and concluded

that the particular agency interpretation before the Court

did not merit deference because it was inconsistent with the

regulation’s text. Jd. at 588. The Court has expressly re-

affirmed the rule of deference to agency interpretations

since Christensen. See Keffeler, supra; Barnhart v. Walton,

535 U.S. 212, 217 (2002).

Petitioners further argue (Pet. 20-23) that the courts of

appeals have issued conflicting decisions on the deference

due to agency interpretations of their own regulations. But

petitioner has identified no conflict in the legal standard em-

ployed by the courts, nor is the government aware of any.

7 See also Barnhart v. Walton, 535 U.S. 212, 217 (2002) (“Courts grant

an agency’s interpretation of its own regulations considerable legal

leeway.”); United States v. Cleveland Indians Baseball Co., 532 U.S. 200,

220 (2001); Auer, 519 U.S. at 461 (agency interpretation will be sustained

unless it is “plainly erroneous or inconsistent with the regulation”)

(citation omitted); Thomas Jefferson Univ., 512 U.S. at 512 (same);

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)

(same); Bowles, 325 U.S. at 414 (same).

—

15

The decisions petitioners cite are either irrelevant or simply

reflect the fact that application of the same legal standard to

different facts in different cases can yield different outcomes.

That is to be expected. Rather than evidencing a need for

this Court’s intervention, those cases demonstrate that the

deference standard already adopted by the Court is work-

ing.”

Petitioners also Suggest (Pet. 22) a circuit conflict on the

appropriateness of the Department’s articulation of its views

in an amicus brief. But, again, petitioners identify no conflict

in the circuits on the legal standard to be applied in deter-

mining whether deference is appropriate. Both National

Wildlife Federation v. Browner, 127 F.3d 1126 (D.C. Cir.

1997), and Akzo Nobel Salt, Inc. v. Federal Mine Safety &

Health Review Commission, 212 F.3d 130] (D.C. Cir. 2000),

involved straightforward applications of Auer. The differ-

ence in outcomes turned not upon the law applied, but on

whether, on the facts of the particular case, the interpreta-

tion reflected the “fair and considered judgment” of the

agency. National Wildlife, 127 F.3d at 1129; Akzo, 212 F.3d

at 1304. That inquiry is not in doubt here, because the

Department’s interpretation has also been manifested in

8 See Meineker, 69 Fed. Appx. at 23 (applying Auer and Thomas

Jefferson); Sketoe v. Exxon Co., USA, 188 F.3d 596, 597 (5th Cir. 1999)

(agency interpretation of a statute), cert. denied, 529 U.S. 1057 (2000); Doe

v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) (same), cert.

denied, 528 U.S. 1106 (2000). While the District of Columbia and Third

Circuits reached different conclusions about deference to the Justice

Department’s interpretation of its regulation in another context (views

over standing spectators), both courts applied the same legal standard.

See Caruso v. Blockbuster-Sony Music Entm’t Ctr., 193 F.3d 730, 736-737

(3d Cir. 1999) (applying Thomas Jefferson); Paralyzed Veterans v. D.C.

Arena L.P., 117 F.3d 579, 584-585 (D.C. Cir. 1997) (applying Awer and

Thomas Jefferson), cert. denied, 523 U.S. 1003 (1998). The Third Circuit

just found that an “alternative reading is compelled by . . . indications of

the [agency’s] intent at the time of the regulation’s promulgation.”

Caruso, 193 F.3d at 736 (quoting Thomas Jefferson, 512 U.S. at 512).

16

numerous enforcement actions. See United States v. Cine-

mat mark USA, Inc., supra; United States v. Hoyts Cinemas,

supra; AMC Entm’t, supra; Lonberg & United States v.

Sanborn Theaters, Inc., No. 97-6598 (C.D. Cal.).”

In any event, this case is not an appropriate vehicle for

addressing the level of deference due to an agency inter-

pretation of its own regulations. First, in holding that “com-

parable” “lines of sight” encompasses the viewing angles to

the screen, the court of appeals here (Pet. App. 15a) and the

Sixth Circuit (03-1311 Pet. App. at 9a) both relied on the

“plain meaning” of the regulatory text, which makes this

case a particularly inapt vehicle for fixing the precise level of

deference owed to an agency’s interpretation of its own

regulation. Cf. Edelman v. Lynchburg College, 535 U.S. 106,

114 & n.8 (2002) (declining to address the precise level of

deference owed to an agency interpretation of a statute that

reflected the best view of the statute’s plain meaning)."”

9 The other cases petitioners cite miss the mark. Dicta in Keys v.

Barnhart, 347 F.3d 990 (7th Cir. 2003) are of no help because the

government’s brief “did not offer an interpretation of the agency’s

regulations,” id. at 994. Brandt v. Village of Chebanse, 82 F.3d 172 (7th

Cir. 1996), and Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir.

2000), do not involve deference at all, but instead address whether a

paiticular agency position reflects a legislative rather than an interpretive

rule. Because, as the court of appeals here found (Pet. App. 15a), the

“plain meaning” of the regulation “both in general and as understood in

the movie theater industry” encompasses the viewers’ relative ability to

view the movie on the screen, the Department’s interpretatian falls

squarely within the four corners of the regulatory text. Petitioners, for

their part, make no effort to explain how the Department’s position is any

less interpretive (or more legislative) than their reading of the regulation

as prohibiting only particular types of physical barriers to view. The

forthcoming regulatory amendments render that debate of no enduring

importance anyhow.

10 Petitioners’ contention (Pet. Reply 6) that there is a conflict on the

agency deference rule between the Fifth Circuit in Lara and the court of

appeals here is wrong. The Fifth Circuit never discussed the issue, see

207 F.3d at 787-789, as the district court in this case recognized, Pet. App.

32a-33a.

a

17

Second, petitioners do not contend that their proposed

interpretation—that only obstructed views are prohibited—

flows ineluctably from the statutory text. In reality, it is the

petitioners’ non-textual position that is the product of “after-

the-fact” interpretation issued without “APA notice and

comment” (Pet. 18). Furthermore, petitioners’ reading of

the regulation as prohibiting obstructed views necessarily

agrees, at some level, with the Department’s quite natural

reading of “comparable” “lines of sight” as referring to the

ability of a wheelchair user to view a performance. Peti-

tioners do not dispute that the regulation prohibits a theater

design where wheelchair users cannot view the movie

because there are heads, headrests, or poles right in front of

them. Petitioners simply disagree that the regulation also

prohibits designs where wheelchair patrons cannot view the

movie because the screen is right in front of them. That

difference does not bespeak a fundamental divergence in the

legal rules governing agencies’ authority to interpret their

own regulations; it is simply the byproduct of a case-specific

disagreement about which forms of physical barriers to

viewing a movie are covered by the regulation. That type of

programmatic linedrawing does not present any broad legal

question for this Court’s review.

Petitioners’ real complaint (Pet. 17-18) appears to be less

with the Department’s interpretation of its own regulation

than with the Department’s failure to provide prospective

design specifications. But that objection does not bolster the

basis for this Court’s review. The meaning of “lines of sight”

in the regulation never changed. The plain text of the regu-

lation, industry practice, and petitioners’ own reading of the

regulation as prohibiting obstructions all indicate that, from

the outset, “lines of sight” has encompassed patrons’ ability

to view the movie on the screen. What changed in the mid-

1990s was not the regulatory interpretation, but the movie

theaters’ design. It was not until 1995 that movie theaters

18

first offered stadium-style seating and, as part of that

development, began marketing to consumers the enhanced

lines of sight that are the defining feature of stadium-style

seating. With respect to most of the theaters at issue here,

petitioners closed that new market to patrons with

disabilities by completely excluding them from the sight-line

benefits of the stadium-style design. It was against that

backdrop that the Justice Department went on record, in its

1998 amicus brief in the Lara case, to make clear how the

“comparable” “lines of sight” requirement in Standard 4.33.3

applies in the specific context of stadium-style movie

theaters. But that does not mean that the underlying

meaning of the regulation changed; it means only that a new

opportunity for its application arose.

After all, while stadium-style seating was new to movie

theaters, it was not new to stadiums and other assembly

areas.'' That application of extant regulatory standards and

agency expertise to a specific factual scenario is what regula-

tors routinely do; it is not an event that triggers the duty to

engage in notice-and-comment rulemaking. And it is not the

type of broad or enduring legal question that merits an

exercise of this Court’s certiorari jurisdiction, especially

given that ten years have elapsed since stadium-style movie

theatres first appeared and six years have now passed since

the Lara brief was filed.”

11 See, e.g., Letter from Merrily Friedlander, Acting Chief of the Coor-

dination and Review Section, Civil Rights Div., Dep’t of Justice, to Daniel

L. Hesse, Director/Eng’r, Yakima County Public Works Dep’t regarding

Yakima County Stadium 3 (Nov. 21, 1994) (“‘Line of sight’ in an assembly

area refers to both the ability to see performance areas and the angle from

which performance areas are seen.”), cited in Independent Living Res. v.

Oregon Arena Corp., 982 F. Supp. 698, 709 n.9 (D. Or. 1997).

l2 Petitioners wrongly assert (Pet. 7-8 & n.7) that the Department of

Justice has repeatedly changed its interpretation of the comparable lines

of sight requirement. Petitioners offer no evidence that the Department

ever said that viewing angles are not an aspect of “lines of sight.” And

four courts have specifically found that the Department’s interpretation

CO ee

19

3. Lastly, petitioners’ argument (Pet. 3, 26-29) that they

lacked “fair notice” of the regulation’s operation and that

reading it to require retrofitting of petitioners’ movie

theaters (Pet. Reply 9) would violate due process does not

merit this Court’s review. The only thing the court of

appeals decided was that petitioners’ total exclusion of

wheelchair patrons from stadium-style seating and relega-

tion of wheelchairs to locations with the worst sight lines in

the house violate the regulatory requirement that “lines of

sight” be “comparable.” As petitioners concede (Pet. 10), the

issue of fair notice and the appropriate equitable remedy for

that violation has not yet been decided in this case, or by any

other appellate court in the country. Those issues will be

addressed on remand. This Court rarely grants review of

such interlocutory challenges.’ Further, because “this is a

court of final review and not first view,” Adarand Construc-

tors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (quoting Matsu-

shita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 399 (1996)), it

would be inappropriate to litigate in this Court, for the first

time, the fact-intensive and record-bound question of fair

has been consistent. Pet. App. 10a-lla & n.5; Cinemark, 348 F.3d at 579;

United States v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73, 90 (D. Mass.

2003); AMC Entm’t, 232 F. Supp. 2d at 1112-1113. Petitioners’ further

complaint (Pet. 17) that the Justice Department has not provided a single

set of uniform “construction requirements” overlooks that the com-

parability of lines of sight is required only on a theater-by-theater basis.

The view for wheelchair users need only be comparable to the view of

other patrons in the same theater; it need not be as good a view as is

offered in a different theater down the street. Furthermore, petitioners’

central attack on the Department’s interpretation has always been that it

overreaches, not that it is insufficiently restrictive and regimented. In

any event, that concern is expected to be resolved by the forthcoming

regulatory amendments.

13 See Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916) (“[E]xcept in extraordinary cases, the writ is not issued until final

decree.”); compare Virginia Military Inst. v. United States, 508 U.S. 946

(1993) (Scalia, J.) (denial of certiorari on interlocutory appeal), with United

States v. Virginia, 518 U.S. 515 (1996) (review after final judgment).

notice, see Meineker, 69 Fed. Appx. at 25, or to attempt to

outline in the abstract any possible limitations on purely

hypothesized equitable relief."*

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JAMESJ. RAGGIO

General Counsel

Architectural and

Transportation Barriers

Compliance Board

MAY 2004

THEODORE B. OLSON

Solicitor General

R. ALEXANDER ACOSTA

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

GREGORY B. FRIEL

Attorneys

14 The dire remedial consequences that petitioners portend need never

occur. See Cinemark, 348 F.3d at 582 n.10 (government’s representation

at oral argument that “the United States is not—has not and is not going

to argue, for example, that the entire interior of the theater be gutted or

torn down. We are going to work with the defendants to come up with a

reasonable approach.”); Paralyzed Veterans, 117 F.3d at 589 (“[T]here [is]

a good deal of wiggle room in the degree of compliance contemplated by

the regulation and manual, and * * * a judge sitting in equity[] ha[s]

ample discretion to fashion the remedial order.”).