Petition for Writ of Certiorari — California California Speedway Corp. v. Miller (No. 08-782)

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upreme Court, U.S.

- FILED

18-782 OFC 15 2008

Jn The OFFICE OF THE CLERK

Supreme Court of the United States

THE CALIFORNIA SPEEDWAY CORPORATION,

Petitioner,

ROBERT MILLER,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

LEWIS BRISBOIS BISGAARD

& SMITH LLP

JOHN S. LOWENTHAL

BRYAN R. REID

RIMA M. BADAWIYA

650 East Hospitality Lane

Suite 600

San Bernardino, CA 92408

Telephone: (909) 387-1130

LEWIS BRISBOIS BISGAARD

& SMITH LLP

JEFFRY A. MILLER

MATTHEW B. STUCKY

550 West C Street

Suite 800

San Diego, CA 92101

Telephone: (619) 233-1006

LEWIS BRISBOIS BISGAARD

& SMITH LLP

MICHAEL K. JOHNSON

Counsel of Record

One Sansome Street

Suite 1400

San Francisco, CA 94104

Telephone: (415) 362-2580

LEWIS BRISBOIS BISGAARD

& SMITH LLP

CAROLINE E. CHAN

221 North Figueroa Street

Suite 1200

Los Angeles, CA 90012

Telephone: (213) 250-1800

Counsel for Petitioner

COCKI

AW BRIEF PRINTING CO

OR CALL CO

QUESTION PRESENTED

Must a court afford deference to a government

agencys interpretation of ambiguous regulatory

language, where the proffered interpretation covers a

subject matter that the agency had previously inten-

tionally excluded from the scope of its notice and

comment rulemaking?

PARTIES AND RULE 29.6 STATEMENT

The parties include the petitioner, The Califor-

nia Speedway Corporation, and the respondent,

Mr. Robert Miller.

International Speedway Corporation is the parent

corporation and owns 10% or more of the stock of

The California Speedway Corporation.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES AND RULE 29.6 STATEMENT

OPINIONS BELOW

JURISDICTION

STATUTORY AND REGULATORY PROVI-

SIONS INVOLVED

STATEMENT OF THE CAS

A. Statutory Background

B. The Decision of the District Court

C. The Decision of the Ninth Circuit (“the

Decision Below”)

D. The Denial of Rehearing En Banc

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUITS DECISION

INVOLVES A QUESTION OF EXCEP-

TIONAL IMPORTANCE GIVEN THE

INTER-CIRCUIT SPLIT OF AUTHOR-

ITY AND THE CONFLICT WITH THE

DECISION OF THE THIRD CIRCUIT

AUTHORED BY JUSTICE ALITO

GRANTING THE PETITION FOR CER-

TIORARI IS ALSO DESIRABLE AND

WARRANTED IN ORDER TO HEAL

THE INTRA-CIRCUIT SPLIT CREATED

BY THE NINTH CIRCUIT’S DECISION

See See ee eh ances eee

TABLE OF CONTENTS - Continued

Page

THE NINTH CIRCUITS EXPANSION

OF ADA LIABILITY RAISES ISSUES OF

NATIONAL IMPORTANCE REQUIRING

GUIDANCE FROM THIS COURT

CONCLUSION

APPENDICES

Opinion of the Court of Appeals for the Ninth

Circuit filed on August 8, 2008

District Court Order Granting Defendant’s

Motion for Summary Judgment filed on Sep-

tember 8, 2006

Judgment filed on September 18, 2006

Order Denying the Petition for Rehearing En

Banc filed on September 16, 2008

Administrative Procedure Act

Fae, IE FI ove ss Svs vc initceevcerecsecitmenvens App.

Fas OEIC IA) oviscinnscvticveescisviinevvaossaseses App.

Americans With Disabilities Act

OE UTI, BOCCIOR TIGL oon cscs conics ceesene App.

42 UDB. section IZIGRaNk 1) «.. ccc.20.00...4..0000. App.

42 U.S.C. section 12186(b) and (c)........... App. 60, 6

42 U.S.C. section 12206(c)(3)

TABLE OF CONTENTS — Continued

Page

Code of Federal Regulations

28 C.F.R., Appendix A regarding section

28 C.E.R. 36:406 (DOJs Final Title ITI Regula-

tions)

Federal Register

i since np eee App.

56 Fed. Reg. 35,514 (Final ADA Accessibility

Guidelines including section 4.33.3)

56 Fed.

57 Fed.

o7 Fed.

64 Fed.

69 Fed. . 44,392-93

FO FO. TO, BE ins ioiisciieeiee noe App.

Americans With Disabilities Act Title III Techni-

cal Assistance Manual, 1994 Supplement

III-7.5180 Assembly Areas.................0..00cc00ee App.

TABLE OF AUTHORITIES

CASES

American Mining Congress v. Mine Safety &

Health Administration, 995 F.2d 1106 (D.C.

Cir. 1993)

Caruso v. Blockbuster-Sony Music Entertain-

ment Centre at the Waterfront, 193 F.3d 730

(3d Cir. 1999) passim

Hemp Industries v. Drug Enforcement

Administration, 333 F.3d 1082 (9th Cir.

18, 19, 20, 22, 23

Independent Living Resources v. Oregon

Arena Corporation, 982 F. Supp. 698 (D. Or.

11, 14, TS, 16, 19

Paralyzed Veterans of America v. D.C. Arena

L.P., 117 F.3d 579 (D.C. Cir. 1997) passim

Thomas Jefferson University v. Shalala, 512

U.S. 504, 129 L.Ed.2d 405, 114 S.Ct. 2381

(1994)

United States of America v. AMC Entertatin-

ment, Inc., 2008 U.S.App. LEXIS 24645 (Dec.

5, 2008)

United States v. Ellerbe Becket, Inc., 976

F. Supp. 1262 (D. Minn. 1997)

STATUTES

ZB C.F. 9 36.406 .....<<...00.. LO NOTE

5 U.S.C. § 551(5)

Vil

TABLE OF AUTHORITIES — Continued

5 U.S.C. § 553(b\(3)(A)

28 U.S.C. § 1254

SE ee fl Ss, es ae a

42 U.S.C. § 12183(a)(1)

42 U.S.C. § 12186(b)

42 U.S.C. § 12186(c)

Le Le oe rains ee

56 Fed.

57 Fed.

64 Fed.

69 Fed.

73 Fed.

. 7478 (1991)

. 7479 (1991)

. 7492 (1991)

. 35,440 (1991)

. 35,514 (1991)

jE PE) s ciiven ssh anecesnvintivemnsinvveoeens oO, 21

. 35,587 (1991)

5 RE Eig sicsalha tcavenseneicie chranaceoeadourens 5)

+g. 60,618 (1992)

. 62,248 (1999)

. 62,501 (1999)

. 62,502 (1999)

. 44,392-93 (2004)

. 34,508 (2008)

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

1 Kenneth Culp Davis and Richard J. Pierce,

Jr., Administrative Law Treatise § 6.10 at

283 (1994)

Department of Justice Technical Assistance

Manual, § ITI — 7.5180 passim

OPINIONS BELOW

The opinion of the United States Court of Ap-

peals for the Ninth Circuit is reportec at 536 F.3d

1020. (Pet. App. 1.) The opinion of the district court is

set forth at 453 F. Supp. 2d 1193. (Pet. App. 27.) The

order denying rehearing en banc is available on

Pacer. (Pet. App. 53.)

———————— e

JURISDICTION

The Ninth Circuit entered its judgment on April

11, 2008, and it denied the petition for rehearing en

banc on September 16, 2008. (Pet. App. 52.) This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The relevant provisions of Title III of Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-

12189, the Administrative Procedure Act (“APA”), 5

U.S.C. §§ 553(b) and 551, ADA Accessibility Guide-

lines (““ADAAG”), 28 C.F.R. Part 26 Appendix A,

§ 4.33.3, and the 1994 Supplement to the Department

of Justice Technical Assistance Manual (“TAM”), § III

— 7.5180 are reproduced in the Appendix. (Pet. App.

04-82. )

STATEMENT OF THE CASE

Plaintiff and appellant, Robert Miller, a disabled

wheelchair user, has been attending NASCAR races

at the California Speedway racetrack since 1997.

(Pet. App. 30.) Mr. Miller’s complaint against Califor-

nia Speedway is that his line of sight becomes ob-

structed when the spectators in front of him stand up

at times during races.

Mr. Miller filed this action alleging that Califor-

nia Speedway is in violation of Title III of the Ameri-

cans with Disabilities Act of 1990, 42 U.S.C. § 12181,

et seq. (Pet. App. 3.) The district court granted Cali-

fornia Speedway’s motion for summary judgment.

Thereafter, the court entered judgment and Mr.

Miller filed an appeal.

The Ninth Circuit reversed the judgment, ac-

knowledging the split in authority between circuits,

and concluding that the Department of Justice stan-

dard for section 4.33.3 requires facilities covered by

Title ITI] of the ADA to provide lines of sight viewing

over standing spectators. (Pet. App. 3.)

The decision below, in conflict with a Third

Circuit decision, impermissibly extends liability

based on the Department of Justice’s retroactive

change of a legislative rule through “interpretation”

when the original rule intentionally omitted the

specific issue in question, and the change was made

without notice or opportunity for comment. The issue

impacts a broad spectrum of individuals, businesses,

and agencies with concerns that the Administrative

Procedure Act requirements of notice and opportunity

for comment be followed. The Ninth Circuit’s expan-

sion of ADA liability also raises issues of national

importance to disabled individuals and owners of

sporting arenas and stadiums, theaters, concert halls,

and racetracks. The decision substantially affects a

rule of national application in which there is an

overriding need for national uniformity. Presently,

confusion reigns supreme. The Third Circuit has

ruled one way; the Ninth and the D.C. Circuit’s have

ruled the opposite way. Litigants and lower courts

desperately need guidance. This Court should take

the opportunity to settle the issue once and for all.

A. Statutory Background.

Congress enacted Title III of the ADA to prohibit

discrimination against disabled individuals, including

the failure to design and construct readily accessible

and usable facilities. 42 U.S.C. § 12183(a)(1). (Pet.

App. 60.) The ADA directs the Attorney General to

“issue regulations ... that include standards applica-

ble to facilities” covered by Title III, and to provide

“appropriate technical assistance manuals to indi-

viduals or entities with rights or duties under Title

II.” 42 U.S.C. §§ 12186(b), 12206(c)(3). (Pet. App. 60-

61.) However, the Attorney Generai’s regulations

must be consistent with the “minimum guidelines

and requirements issued by the Architectural and

Transportation Barriers Compliance Board,” a federal

agency with representatives from different agencies

such as the Department of Justice (the “Access

Board”). 42 U.S.C. § 12186(c). (Pet. App. 61.)

In January 1991, six months after enactment of

the ADA, the Access Board published its first pro-

posed ADA Accessibility Guidelines, known as

“ADAAG.” 536 F.3d at 1025. (Pet. App. 5.)

In February 1991, the Department of Justice

(“DOJ”) issued a notice of proposed rulemaking

stating that the standards published as Appendix A,

would include the ADAAG proposed by the Access

Board “together ‘with amendments made by the

[Access Board] during its rulemaking process.” 536

F.3d at 1025, citing 56 Fed. Reg. 7478, 7492 (1991).

(Pet. App. 7.) The DOJ notice expressly stated, “the

Department proposes to adopt these guidelines as the

accessibility standard applicable under this rule.” 56

Fed. Reg. 7478-79 (1991). (Pet. App. 7.) It further

requested that any comments be sent to the Access

Board.

The Access Board published its final ADAAG in

July 1991. Section 4.33.3, the applicable section for

purposes of this case, stated in pertinent part:

“Wheelchair areas shall be an integral part

of any fixed seating plan and shall be pre-

vided so as to provide people with physical

disabilities a choice of admission prices and

lines of sight comparable to those for mem-

bers of the general public.”

56 Fed. Reg. 35,514 (1991) (italics omitted, underlin-

ing added for emphasis). (Pet. App. 66.)

With regard to the specific problem of lines of

sight over standing spectators, the Access Board

commented that “the issue of lines of sight over

standing spectators will be addressed in guidelines

for recreational facilities.” 56 Fed. Reg. 35,440 (1991).

(Pet. App. 65.) Thus, the Access Board did not pro-

pose a rule to deal with this line of sight issue, but

left it for a future guideline.’

On the same date that the Board issued its final

ADAAG, the DOJ issued its final Title HI regulations,

adopting and incorporating the ADAAG, including

section 4.33.3, verbatim. See 28 C.F.R. § 36.406 &

App. A. (Pet. App. 63-64.) The DOJ did not address

the issue of lines of sight over standing spectators,

but it did state that “all comments on the Depart-

ment’s proposed rule ... have been addressed ade-

quately in the finai [guidelines].” 56 Fed. Reg. 35,586

(1991). (Pet. App. 66.)

In 1992, the Access Board repeated its intent to

address the issue in future guidelines for recreational

facilities. 57 Fed. Reg. 60,612, 60,618 (1992). (Pet.

App. 67-70.) In 1999, the Access Board proposed

]

An Access Board “guideline” is different from a DOJ

“suideline,” since guidelines devcloped by the Access Board are

its substantive rules. Thus, when it made reference to a future

guideline, the Board was not referring to a future interpretation

of section 4.33.3, but rather to a separate substantive rule it

would promulgate. By contrast, a DOJ guideline is an interpre-

tation of a substantive rule, not the substantive rule itself.

Caruso v. Blockbuster-Sony Music Entertainment Centre at the

Waterfront, 193 F.3d 730, 734 n. 5 (3d Cir. 1999)

amendments to its guidelines addressing the stand-

ing spectator issue. 64 Fed. Reg. 62,248, 62,501-02

(1999). (Pet. App. 71-72.)

Guideline 802.2.2.1 adopted in 2004, states

“Where standing spectators are provided lines of

sight over the heads of spectators standing in the first

row in front of their seats, spectators seated in wheel-

chair spaces shall be afforded lines of sight over the

heads of standing spectators in the first row in front

of wheelchair spaces.” 69 Fed. Reg. 44,392-93 (2004).

(Pet. App. 76-79.) The DOJ published proposed regu-

lations adopting this guideline, but the regulations

have not yet been adopted. 73 Fed. Reg. 34,508

(2008). (Pet. App. 80-81.)

B. The Decision of the District Court.

In its decision granting California Speedway’s

motion for summary judgment, the district court

found the following facts were uncontroverted: 1)

California Speedway Corporation operates a public

racetrack where events such as NASCAR racing are

held; 2) Robert Miller, a disabled wheelchair user,

has attended NASCAR races at the track; 3) when

Mr. Miller occupies wheelchair spaces, he cannot see

over spectators standing in the rows in front of him,

and accordingly, he cannot view the more exciting parts

of the race. 453 F. Supp. 2d at 1196. (Pet. App. 30-31.)

The district court stated the DOJ’s current

position on ADAAG section 4.33.3 — that wheelchair-

bound individuals be provided lines of sight over

standing spectators — is reasonable. 453 F. Supp. 2d

at 1198. However, according to the court, the key

analysis is not reasonableness. It is whether the

Department of Justice’s interpretation constitutes “a

fundamental modification of its previous interpreta-

tion. [Citation.]” 453 F. Supp. 2d at 1198. The court

acknowledged the even split among four courts on the

issue of whether the Access Board’s comments re-

garding addressing the issue in the future must be

imputed to the DOJ, and as such the DOJ could not

subsequently change its original position of not

addressing the issue when section 4.33.3 was prom-

ulgated without undergoing the notice and comment

procedure required by the Administrative Procedure

Act.

After analyzing all four cases, the district court

concluded the Third Circuit’s approach in Caruso

represents the most principled analysis, and adopted

the reasoning and conclusions of Caruso as its own.

453 F. Supp. 2d at 1203. The district court concluded

that the Access Board’s position is imputed to the

DOJ and the DOJ was not free to change its interpre-

tation in 1994 without going through the notice and

comment process. In so holding, the district court

took into account the Department of Justice’s broad

“ Caruso v. Blockbuster-Sony Music Entertainment Centre

at the Waterfront, 193 F.3d 730, 737 (3d Cir. 1999) (Alito, J.,

joined by Nygaard and Rendell, JJ.)

approval of the Access Board’s actions and the ab-

sence of public expression of contrary intent.

C. The Decision of the Ninth Circuit (“the

Decision Below”).

The Ninth Circuit disagreed with the district

court, rejected the logic of Caruso, and sided with the

D.C. Circuit’s decision in Paralyzed Veterans of

America v. D.C. Arena L.P., 117 F.3d 579, 587 (D.C.

Cir. 1997) (“Paralyzed Veterans”). The court recog-

nized that the federal courts that have previously

considered this issue are split down the middle. 536

F.3d at 1024. (Pet. App. 3.)

The Ninth Circuit acknowledged the language of

section 4.33.3 requiring “lines of sight comparable to

those for members of the general public” 1s ambigu-

ous. 536 F.3d at 1028. The court observed that the

possible meanings of that phrase include: 1) wheel-

chair-bound individuals must have a view unob-

structed by physical obstacles; 2) seats must be

horizontally or vertically dispersed to provide differ-

ent viewing angles; and/or 3) wheelchair-bound

individuals must be able to see over standing specta-

tors. 536 F.3d at 1029.

According to the Ninth Circuit, the Department

of Justice adopted the text of the Access Board’s

guidelines, but not the Access Board’s interpretation

of the language. 536 F.3d at 1031-32. The court

reasoned that the guidelines were merely a “launch-

ing point” for the Department of Justice. The DOJ

was not bound by the Access Board’s interpretations,

as long as the DOJ’s regulations satisfied a “mini-

mum level of equivalence.” 536 F.3d at 1032. As such,

the court concluded the Access Board’s interpretation

should not be imputed to the Department of Justice.

Finally, the Ninth Circuit concluded that, in any

event, there was no need for notice and comment

because the Access Board’s original position and the

Technical Assistance Manual constituted interpretive

rules. 546 F.3d at 1033.

D. The Denial of Rehearing En Banc.

California Speedway filed a petition for rehearing

en banc. The Ninth Circuit denied the petition. (Pet.

App. 53.)

REASONS FOR GRANTING THE WRIT

The Ninth Circuit exacerbated a split among

circuits by siding with the D.C. Circuit and against

the Third Circuit and concluding that the Depart-

ment of Justice is not bound by the Access Board’s

interpretation of guidelines. The effect of this depar-

ture from the settled law of the Third Circuit is

significant. Cese law interpreting the ambiguous

regulatory language remains more uncertain than

ever to the detriment of litigants across the country.

A uniform rule is warranted and urgently needed.

Disabled individuals and proprietors of sporting

arenas deserve no less.

The Ninth Circuit also deepened an intra-circuit

split on the issue of whether an agency may change a

legislative rule retroactively through interpretation

when the issue was intentionally omitted from the

original rule. This issue impacts more than just

disabled persons and owners of sporting arenas. By

granting this petition, this Court will have the oppor-

tunity to curb the unsavory practice of promulgating

vague proposed regulations and changing them

retroactively under the guise of “interpretation”

without going through the notice and comment proce-

dure. The California Speedway submits that the

equirements of the Administrative Procedure Act

should be respected and adhered to, not undermined.

This Court should, therefore, grant. this petition.

THE NINTH CIRCUIT’S DECISION IN-

VOLVES A QUESTION OF EXCEPTIONAL

IMPORTANCE GIVEN THE = INTER-

CIRCUIT SPLIT OF AUTHORITY AND

THE CONFLICT WITH THE DECISION

OF THE THIRD CIRCUIT AUTHORED BY

JUSTICE ALITO.

The precise issue presented in this appeal has

been previously considered by the appellate courts of

the Third Circuit and D.C. Circuit in Caruso v. Block-

buster-Sony Music Entertainment Centre at the Wa-

terfront, 193 F.3d 730, 736-37 (3d Cir. 1999) and

Paralyzed Veterans of America v. D.C. Arena L.P., 117

F.3d 579, 587 (D.C. Cir. 1997). Those courts reached

opposite conclusions about the validity of the lines of

sight over standing spectators requirement of the

DOJ’s supplemental TAM.’ The Ninth Circuit in this

case sided with the D.C. Circuit, and rejected the

Third Circuit’s analysis in Caruso. In Caruso, then

Circuit Judge Alito concluded that the DOJ should

have adopted the lines of sight over standing specta-

tors requirement via notice and comment rulemak-

ing, rather than trying to impose the new mandate

via an interpretative rule. After recounting the regu-

latory history of section 4.33.3, the Court summarized

the appellant’s arguments as follows:

Based on this regulatory history, the E-

Centre contends that Standard 4.33.3 was

intended to leave unresolved the issue of

lines of sight over standing spectators, and,

as a result, the DOJ was not entitled to “in-

terpret” Standard 4.33.3 in 1994 in a fashion

that did resolve the issue of sightlines over

standing spectators. Cf Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 512, 129

L. Ed. 2d 405, 114 S. Ct. 2381 (1994) (courts

need not defer to an agency’s interpretation

of its own regulation if an “alternative

* These same issues have also been addressed in two pub-

lished distnmect court decisions, Independent Living Resources v.

Oregon Arena Corporation, 982 F. Supp. 698, 742-43 (D. Or. 1997)

and United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262, 1269

(D. Minn. 1997), with the Oregon decision siding with Caruso,

and the Minnesota decision siding with Paralyzed Veterans.

reading is compelled by ... indications of the

[agency’s] intent at the time of the regula-

tion’s promulgation”). The E-Centre main-

tains that, if the DOJ wanted to impose a

new requirement that wheelchair users be

able to see over standing patrons, it had to

engage in notice and comment, since such a

requirement would constitute a new sub-

stantive rule. [Citations omitted. |

193 F.3d at 735-36. The Third Circuit then addressed

the appellant’s reliance upon the decision of the D.C.

Circuit, Paralyzed Veterans of America v. D.C. Arena

L.P., 326 U.S. App. D.C. 25, 117 F.3d 579 (D.C. Cir.

1997).

Appellants cispute the E-Centre’s charac-

terization of the 1994 DOJ statement as a

“substantive” rule They argue that, because

the DOJ did not explicitly adopt the Access

Board’s commentary, the meaning of Stan-

dard 4.33.3 was not limited by that commen-

tary when it was adopted, and thus the 1994

statement does not constitute a “change” in

the requirements under 4.33.3. They also

maintain that even if the Access Board’s

commentary can be attributed to the DOJ,

the DOJ was entitled to change its interpre-

tation of Standard 4.33.3 in 1994 without no-

tice and comment.

With regard to the threshold question of

whether the Access Board’s commentary can

be attributed to the DOJ, the appellants rely

on the District of Columbia Circuit’s analysis

in Paralyzed Veterans of America v. D.C.

Arena L.P., 326 U.S. App. D.C. 25, 117 F.3d

579 (D.C. Cir. 1997):

If the Department, when it promul-

gated the regulation, had said what

the Board said, or even clearly

adopted what the Board said, it

would be hard to conclude that the

Department did not subsequently

“amend” the regulation in violation

of the APA. But Justice did not do so

in its statement of basis and pur-

pose. It never referred to the Board’s

concern, nor did it imply that its

regulation did not address the prob-

lem of lines of sight over standing

spectators. It may well be that it is a

plausible inference that Justice, at

the time, deliberately intended the

regulation to mean the same thing

as did the Board — but it is not a

necessary inference.... We admit

the issue is not easy; appellants

almost but do not quite establish

that the Department significantly

changed its interpretation of the

regulation when it issued the 1994

technical manual.

Caruso, 193 F.3d at 736, citing Paralyzed

Veterans, 117 F.3d at 587.

Finally, the Third Circuit expressed its dis-

agreement with the D.C. Circuit’s conclusion and

explained its reasoning as follows:

We agree that “the issue is not easy,” 117

F.3d at 587, but we respectfully disagree

with the District of Columbia Circuit’s con-

clusion that the DOJ did not adopt what the

Access Board had said. Instead, we conclude

that the DOJ implicitly adopted the Access

Board’s analysis of 4.33.3. This conclusion is

strongly supported by the following factors:

1) the DOJ referred all comments to the

Board; 2) the DOJ relied on the Board to

make adequate changes based on those

comments; 3) the Board specifically changed

the language of 4.33.3 in response to com-

ments and explained that change in its

commentary; 4) the DOJ was a “member of

the Board” and “participated actively ... in

preparation of both the proposed and final

versions of the [guidelines],” 28 CFR Part 36,

App. B, at 632; and 5) the DOJ’s commentary

stated that the final guidelines promulgated

by the Board adequately addressed all com-

ments. Accord Indep. Living Res. v. Oregon

Arena Corp., 982 F. Supp. 698, 741 (D. Or.

1997).

We thus agree with the appellants that

4.33.3, when viewed in light of the regulatory

history recounted above, does not reach the

issue of sightlines over standing spectators.

A court should not defer to an agency’s inter-

pretation of its own regulation if “an alterna-

tive reading is compelled by ... indications

of the [agency’s] intent at the time of the

regulation’s promulgation.” Thomas Jeffer-

son University v. Shalala, 512 U.S. 504, 512,

129 L. Ed. 2d 405, 114 S. Ct. 2381 (1994).

Thus, we do not accept the interpretation set

out in the DOJ Technical Assistance manual.

“An agency is not allowed to change a legis-

lative rule retroactively through the process

of disingenuous interpretation of the rule to

mean something other than its original

meaning.” 1 Kenneth Culp Davis and Rich-

ard J. Pierce, Jr., Administrative Law Trea-

tise § 6.10 at 283 (1994).

Caruso, 193 F.3d at 736-737.

A crucial difference between Caruso and the

Ninth Circuit’s decision involves the question of

whether or not the DOJ had adopted the Access

Board’s commentary that the lines of sight over

standing spectators issues would be left for future

rulemaking, and was thereby bound by that interpre-

tation. In Caruso, the Third Circuit concluded that

the DOJ had in fact adopted the Board’s analysis, and

the Court identified five factors supporting that

conclusion. Caruso, 193 F.3d at 736. See also, Indep.

Living Res. v. Oregon Arena Corp., 982 F.Supp. at

740-42 (holding that the DOJ implicitly adopted the

Access Board’s comments and was bound by them

because the DOJ’s commentary was itself insufficient

to satisfy APA notice and comment requirements).

Although conceding that Caruso’s analysis is “a

fair one,” the Ninth Circuit decision decided the

question the opposite way, agreeing with the D.C.

Circuit, and concluding that the DOJ adopted only

the text of the guidelines themselves, not the Access

Board’s interpretation of that text, and therefore the

DOJ was free to adopt a stricter interpretation. 536

F.3d at 1031-32.*

However, the Ninth Circuit’s decision does not

address the important fact that the DOJ did not

publish any commentary of its own, and without such

commentary, the DOJ’s regulations would be invalid.

See Indep. Living Res. v. Oregon Arena Corp., 982

F. Supp. at 740 (citing Gamoa v. Rubin, 80 F.3d 1338,

1346, vacated on jurisdictional grounds, 101 F.3d 90

(9th Cir. 1996)). The regulatory history shows that

the DOJ left the notice and comment procedure for

the Access Board:

... DOJ did not respond to public comments

regarding individual Standards, nor did DOJ

explain the agency’s reasoning in adopting a

specific Standard or why it had rejected al-

ternative language suggested by persons

commenting on the proposed Standards.

That task was left to the Access Board. See,

e.g., 56 Fed. Reg. at 35,587 (in DOJ’s view,

the substantive comments received regard-

ing the proposed Standards “have been ad-

dressed adequately in the final ADAAG.

Largely in response to comments, the [Ac-

cess] Board made numerous changes from its

proposal... ”)

See Paralyzed Veterans, 117 F.3d at 587: United States v

Ellerbe Becket, Inc... 976 F. Supp. 1262, 1269 (D. Minn. 1997)

(adopting the Paralyzed Veterans’ opinion as persuasive and

dispositive)

Indep. Living Res. v. Oregon Arena Corp., 982

F. Supp. at 740.

The D.C. Circuit did address this issue, albcit

obliquely, and concluded, although it was a “plausible

inference” that the DOJ intended its regulation to

mean the same thing as did the Access Board, it was

not a “necessary” inference, and therefore the DOJ

was free to issue a stricter interpretation of section

4.33.3, “imposing a greater burden on those entities

covered by its regulation.” Paralyzed Veterans, 117

F.3d at 587

Accordingly, granting certiorari is warranted

based on the clear inter-circuit split regarding the

interpretation of section 4.33.3 and the DOJ’s sup-

plemental TAM, the broad reach of these regulations,

and the need for national uniformity in the interpre

tation of this exceptionally important issue.

Il. GRANTING THE PETITION FOR CERTIO-

RARI IS ALSO DESIRABLE AND WAR-

RANTED IN ORDER TO HEAL THE

INTRA-CIRCUIT SPLIT CREATED BY THE

NINTH CIRCUIT’S DECISION IN THIS

CASE.

The Ninth Circuit in this case found that defer-

ence should be afforded so long as the proffered

interpretation is consistent with any reasonable

interpretation of the regulation in question, unless an

alternative reading is compelled by the agency’s

intent at the time the regulation was promulgated.

In Hemp Industries v. Drug Enforcement Ad-

mintstration, 333 F.3d 1082 (9th Cir. 2003), various

producers of consumable products that contained

sterilized hernp seeds or hemp oil, brought an action

challenging a new “interpretive rule” by the DEA,

that made their products illegal. The hemp products

had previously not been included within the defini-

tions of “marijuana” and “THC” as set forth in the

applicable DEA regulations.

The Ninth Circuit in Hemp Industries held that

an agencys putative interpretive rule is invalid

where it addresses a subject matter which was con-

sciously omitted from the scope of the current regula-

tion. Significantly, in reaching this conclusion, the

Court followed Caruso, 193 F.3d at 737, for the propo-

sition that “an agency is not allowed to change a

legislative rule retroactively through the process of

disingenuous interpretation of a rule to mean some-

thing other than its original meaning.” Hemp Induss.,

333 F.3d at 1091.

It is well settled that an agency may issue a

“legislative” rule only after following the notice and

comment procedures mandated by the APA. 5 U.S.C.

§ 553(b). The notice and comment procedure is also

required for amending, or repealing a rule. 5 U.S.C.

§ 551(5). However, an agency is not required to follow

the notice and comment procedure when it issues

“interpretive” rules. 5 U.S.C. § 553(b)\(3)(A). The

Court in Hemp Industries noted that the distinction

between legislative and interpretive rules was key to

the decision in that case: “If the DEA’s rule is genu-

inely an interpretive rule, it 1s valid despite the

absence of notice and comment procedures. If the

DEA’s rule has the effect of a legislative rule, it is

invalid because of the agency’s failure to comply with

the APA procedures.” Hemp Induss., 333 F.3d at

1087.

Speaking generally, interpretive rules “merely

explain, but do not add to, the substantive law that

already exists in the form of a statute or legislative

rule.” Hemp Induss., 333 F.3d at 1087. In contrast,

legislative rules “create rights, impose obligations, or

effect a change in existing law pursuant to authority

delegated by Congress.” Id. Relying on the D.C.

Circuit’s decision in American Mining Congress uv.

Mine Safety & Health Administration, 995 F.2d 1106,

1109 (D.C. Cir. 1993), the Court in Hemp Industries

noted three circumstances where a rule has the “force

of law” and is therefore legislative in nature:

(a) when, in the absence of the rule, there

would not be an adequate legislative ba-

sis for enforcement action;

when the agency has explicitly invoked

its general legislative authority; or

when the rule effectively amends a prior

legislative rule.

Hemp Induss., 333 F.3d at 1087.

Upon reviewing the DEA’s effort to “interpret” its

existing regulations regarding marijuana and THC to

include the products sold by the plaintiffs, the Court

in Hemp Industries concluded that the DEA’s new

rule effectively changed the existing regulations,

because the regulations had originally “consciously

omitted” those products from the regulations. The

Court explained:

An agency is not allowed to change a legisla-

tive rule retroactively through the process of

disingenuous interpretation of the rule to

mean something other than its original

meaning.” Caruso v. Blockbuster-Sony Music

Entertainment Centre at the Waterfront, 193

F.3d 730, 737 (3d Cir. 1999) (quoting 1 Ken-

neth Culp Davis and Richard J. Pierce, Jr.,

Administrative Law Treatise § 6.10 at 283

(1994)). Yet here the DEA similarly attempts

to evade the time-consuming procedures of

the APA by interpreting an existing regula-

tion to cover naturally-occurring THC, which

was consciously omitted from the scope of the

current regulation. Consequently, the DEA’s

putative interpretive rule is invalid. To prop-

erly bring organic THC under the listing of

THC, the DEA must promulgate a legislative

rule in accordance with the APA, a process it

has already begun.

Hemp Induss., 333 F.3d at 1091.

A very similar situation is presented here. In

January 1991, the Access Board published its first

proposed ADAAG, and the Access Board published its

final ADAAG in July 1991. Section 4.33.3 stated in

pertinent part:

Wheelchair areas shall be an integral part of

any fixed seating plan and shall be provided

so as to provide people with physical disabili-

ties a choice of admission prices and lines of

sight comparable to those for members of the

general public.

56 Fed. Reg. 35,514 (1991) (italics omitted, underlin-

ing added for emphasis).

The Access Board commented that “the issue of

lines of sight over standing spectators will be ad-

dressed in guidelines for recreational facilities.” 56

Fed. Reg. 35,440 (1991). Thus, the Access Board did

not propose a rule addressing this issue, but instead

left it to be dealt with in a future guideline.

The DOJ issued its final Title III regulations,

adopting and incorporating the ADAAG, and quoting

section 4.33.3, verbatim. See 28 C.F.R. § 36.406 &

App. A. While the DOJ failed to address the issue of

lines of sight over standing spectators, it did state

that “all comments on the Department’s proposed

rule ... have been addressed adequately in the final

[guidelines].” 56 Fed. Reg. 35,586 (1991).

Despite the fact that the Access Board specifi-

cally left this question open for future rulemaking,

and despite the fact that the DOJ adopted the Board’s

guidelines verbatim and did not respond to any

comments on its own, in 1994 the DOJ published a

supplemental Technical Assistance Manual (“TAM”)

that mandated, with regard to the requirements of

section 4.33.3, that “in assembly areas where specta-

tors can be expected to stand during the event or show

being viewed, the wheelchair locations must provide

lines of sight over spectators who stand.” See 536 F.3d

at 1026 (citing to TAM §III-7.5180 (1994 Supp.)).

There was no notice or opportunity for comment

afforded before this TAM was published.

So the question presented by this petition is

whether the DOJ may “interpret” one of its rules in

order to impose a requirement that was intentionally

omitted when the rules were initially promulgated.

Previously, in Hemp Industries, the Ninth Circuit

agreed with Caruso that it is not appropriate for an

agency to change a legislative rule retroactively

through interpretation, when the original rule con-

sciously omitted the particular issue in question. In

other words, it is impermissible for an agency to

make an end run around the APA by omitting an

issue and then later imposing a new rule on the

public by interpretive fiat. See also, Paralyzed Veter-

ans, 117 F.3d at 584 (“I+ is certainly not open to an

agency t- promulgate mush and then give it concrete

form or .y through subsequent less formal ‘interpreta-

LIONS . ).

The Ninth Circuit’s decision in this case conflicts

with its holding in Hemp Industries. The instant

decision holds that so long as the newly adopted

“interpretation” is consistent with the language of an

existing ambiguous regulation, the Court must give

substantial deference to the agency’s interpretation,

even though the issue under consideration was spe-

cifically left open during notice and comment rule-

making. The Ninth Circuit further holds that the

DOJ was not bound by the Access Board’s comments

because the DOJ did not adopt the comments, only

the regulations, and therefore, the DOJ was free to

impose its own more strict interpretation of the

ambiguous language, even without following the

notice and comment procedure. Lastly, even assum-

ing the DOJ initially agreed with the Board that

section 4.33.3 did not address the problem of standing

spectators, the Ninth Circuit holds that it was per-

missible for the DOJ to “change its mind” and adopt a

stricter interpretation.

Each of the Ninth Circuit’s findings is in conflict

with the holding of Hemp Industries. Therefore, this

Court should grant certiorari and provide a uniform

rule for all federal courts across the United States

with rega.d to the appropriate standard of deference

and review of an agency’s rulemaking activity.

Ill. THE NINTH CIRCUIT’S EXPANSION OF

ADA LIABILITY RAISES ISSUES OF

NATIONAL IMPORTANCE REQUIRING

GUIDANCE FROM THIS COURT.

Granting certiorari is necessary in this case

because the “line of sight over standing spectators”

issue is one of national application and national

importance, affecting disabled individuals and

numerous theaters, concert halls, sports arenas and

stadiums, racetracks and similar facilities.

A very recent decision of the Ninth Circuit,

United States of America v. AMC Entertainment, Inc.,

2008 U.S. App. LEXIS 24645 (9th Cir. Dec. 5, 2008),

illustrates the widespread confusion among various

courts regarding the ambiguous language of section

4.33.3. The Ninth Circuit in that case stated:

Because ‘lines of sight comparable’ lacked a

concrete meaning, and the Access Board and

the DOJ failed to provide clear direction as

to the precise meaning of section 4.33.3, liti-

gants turned to courts throughout the coun-

try to determine the regulation’s breadth.

Plagued by an opaque regulation and mini-

mal legislative history, however, the various

circuits did not reach a uniform understand-

ing as to what exactly section 4.33.3 required

of theater companies building stadium seat-

ing complexes.

Id. at *9.

As the Third Circuit observed in Caruso, 193

F.3d at 216, the district court in that case “expressed

its frustration that the regulation, even when read in

conjunction with secondary materials, ‘suffers from a

vagueness not cured by interpretative manuals or

enforcement history which would put meat on the

”

bones of the concept of enhanced sight lines.’

The Ninth Circuit in AMC noted that while the

Third Circuit and the D.C. Circuits “reached different

conclusions as to section 4.33.3’s exact requirements,

the D.C. Circuit and the Third Circuit did agree that

the regulation was hardly a model of clarity.” Jd. at

*13.

With respect to sight lines in theaters, the Ninth

Circuit in AMC noted that the Third Circuit inter-

preted section 4.33.3 to not require an unobstructed

view, the D.C. Circuit concluded it mandated that

some seats had an unobstructed view, the Fifth

Circuit interpreted the provision to require an unob-

structed view but not comparable viewing angles and

the First, Sixth and Ninth Circuits stated that the

language mandated some sort of comparable viewing

angle.” The AMC court concluded that all of the above

circuit courts, however, agreed on one thing — the

regulatory language is vague or ambiguous. United

States of America v. AMC Entm't, Inc., 2008 U.S. App.

LEXIS at *17.

California Speedway submits that this Court

should remedy the current situation of widespread

confusion over the meaning of section 4.33.3. As

explained above, the issue is of significant importance

to disabled persons as well as owners of sports stadi-

ums and arenas, and concert venues. Numerous cases

are filed and litigated each year based upon the

uncertain language of section 4.33.3. A uniform rule

is both warranted and urgently needed.

CONCLUSION

This Court should grant this petition.

Respectfully submitted,

LEWIS BRISBOIS BISGAARD

& SMITH LLP

JOHN S. LOWENTHAL

BRYAN R. REID

RIMA M. BADAWTYA

JENNIFER C. HSU

650 East Hospitality Lane

Suite 600

San Bernardino, CA 9240608

Telephone: (909) 387-1130

LEWIS BRISBOIS BISGAARD

& SMITH LLP

JEFFRY A. MILLER

MATTHEW B. STUCKY

550 West C Street

Suite 800

San Diego, CA 92101

Telephone: (619) 233-1006

LEWIS BRISBOIS BISGAARD

& SMITH LLP

MICHAEL K. JOHNSON

Counsel of Record

One Sansome Street

Suite 1400

San Francisco, CA 94104

Telephone: (415) 362-2580

LEWIS BRISBOIS BISGAARD

& SMITH LLP

CAROLINE E. CHAN

221 North Figueroa Street,

Suite 1200

Los Angeles, CA 90012

Telephone: (213) 250-1800

Counsel for Petitioner

December 15, 2008

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Robert Miller, |

Plaintiff-Appellant, | No. 06-56468

v. | D.C. No.

The California Speedway CV-01-00434-SGL

Corporation, OPINION

Defendant-Appellee.

Appeal from the United States District Court .

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

April 11, 2008 — Pasadena, California

Filed August 8, 2008

Before: William C. Canby, Jr. and Jay S. Bybee,

Circuit Judges, and Roger Hunt,* District Judge.

Opinion by Judge Bybee

COUNSEL

Mark D. Potter and Russell C. Handy, Center for

Disability Access, LLP, San Marcos, California, for

the plaintiff-appellant.

* The Honorable Roger Hunt, Chief United States District

Judge for the District of Nevada, sitting by designation.

App. 2

John S. Lowenthal and Bryan R. Reid, Lewis Brisbois

Bisgaard & Smith, LLP, San Bernardino, California,

for the defendant-appellee.

Karen L. Stevens, United States Department of

Justice, Civil Rights Division, Appellate Section,

Washington, D.C., for the Amicus United States.

Carolyn R. Young, Chapman University School of

Law, Orange, California; Paula D. Pearlman, Disabil-

ity Rights Legal Center, Los Angeles, California, for

the Amicus San Diego Polio Survivors.

OPINION

BYBEE, Circuit Judge:

Appellant Robert Miller is a big fan of NASCAR,

attending from three to six events a year at the

California Speedway in Fontana. He also happens to

be a quadriplegic who uses an electric wheelchair.

When the fans immediately in front of Miller stand

during the most exciting parts of the race, they block

his view of the action.

Appellee California Speedway Corporation

(“Speedway”) opened the California Speedway in

1997. The track and stadium, which sponsors NAS-

CAR events, has two areas for wheelchairs in the

grandstands; the cheaper seats are located at the

bottom of the stadium, and t 1e more expensive seats

are located near the top. Miller always purchases

tickets for the top row.

App. 3

Miller brought this suit, claiming that Speedway

has violated Title III of the Americans with Disabili-

ties Act (“ADA”), 42 U.S.C. § 12181 et seq., and a

Department of Justice regulation requiring that

wheelchair 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 (italics omitted). The district court granted

Speedway’s motion for summary judgment on the

ground that the DOJ regulation does not address the

question of lines of sight over standing spectators.

Miller v. California Speedway Corp., 453 F. Supp. 2d

1193, 1204 (C.D. Cal. 2006).

As the district court noted, two federal courts of

appeals and two federal district courts have ad-

dressed this precise question and have reached

opposite conclusions. The Third Circuit and the

District of Oregon concluded that the DOJ’s regula-

tion does not require lines of sight over standing

spectators. Caruso v. Blockbuster-Sony Music Entm'’t

Centre at the Waterfront, 193 F.3d 730, 736-37 (3rd

Cir. 1999); Indep. Living Res. v. Oregon Arena Corp.,

982 F. Supp. 698, 742-43 (D. Oregon 1997). By con-

trast, the D.C. Circuit and the District of Minnesota

found that the DOJ’s regulation does require lines of

sight over standing spectators. Paralyzed Veterans of

America v. D.C. Arena L.P.,, 117 F.3d 579, 587 (D.C.

Cir. 1997); United States v. Ellerbe Becket, Inc., 976

F. Supp. 1262, 1269 (D. Minn. 1997). We agree with

the D.C. Circuit and reverse the judgment of the

district court.

App. 4

FACTS AND PROCEEDINGS BELOW

A. The Regulatory Scheme

1. The Americans With Disabilities Act

[1] Title III of the ADA prohibits discrimination

against any individual “on the basis of disability in

the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations

of any place of public accommodation.” 42 U.S.C.

§ 12182(a). Discrimination includes “a failure to

remove architectural barriers” or “where ... removal

of a barrier ... is not readily achievable, a failure to

make such goods, services, facilities, privileges,

advantages, or accommodations available through

alternative methods.” 42 U.S.C. § 12182(b)(2)(A)(iv),

(v). The ADA further requires that newly constructed

facilities be “readily accessible to and usable by

individuals with disabilities.” 42 U.S.C. § 12183(a)(1).

The ADA directs the Attorney General to “issue

regulations ... that include standards applicable to

facilities” covered by Title IIL and to provide “appro-

priate technical assistance manuals to individuals or

entities with rights or duties” under Title III. 42

U.S.C. §§ 12186(b), 12206(c)(3). Congress instructed

the Attorney General to issue regulations within one

year of the enactment of the ADA. 42 U.S.C.

§ 12186(b).

[2] The process by which the Attorney General

promulgates his regulations has an unusual twist.

Congress mandated that the Attorney General’s regu-

lations “be consistent with the minimum guidelines

App. 5

and requirements issued by the Architectural and

Transportation Barriers Compliance Board,” 42

U.S.C. § 12186(c), commonly referred to as the “Ac-

cess Board.” The Access Board is an independent

federal agency comprised of twenty-five persons —

thirteen presidentially-appointed individuals and

representatives from twelve federal agencies, includ-

ing the DOJ. 29 U.S.C. § 792(a)(1). The Board is

directed to establish “minimum guidelines and re-

quirements for the standards issued” under Title III

of the ADA, 29 U.S.C. § 792(b)(3)(B), and to “develop

advisory information for, and provide appropriate

technical assistance to, individuals or entities with

rights or duties under regulations prescribed” under

Title III, 29 U.S.C. § 792(b)(2). In sum, the Board

establishes “minimum guidelines” for Title III, but

the DOJ promulgates its own regulations, which

must be consistent with — but not necessarily identi-

cal to — the Board’s guidelines. Congress instructed

the Board to issue its guidelines within nine months

of the enactment of the ADA. 42 U.S.C. § 12204(a).

2. The Access Board Guidelines and DOJ

Standards

In January 1991, six months after the enactment

of the ADA, the Access Board published its first

proposed ADA Accessibility Guidelines, known as the

ADAAG. 56 Fed. Reg. 2296 (1991). Initially, the

provision discussing assembly areas provided:

4.33.3 Placement of Wheelchair Locations.

Wheelchair areas shall be an integral part of

App. 6

any fixed seating plan and shall be dispersed

throughout the seating area. They shall ...

be located to provide lines of sight compara-

ble to those for all viewing areas.

56 Fed. Reg. at 2380. In commentary on its proposed

rules, the Access Board noted that the “lines of sight”

requirement

appears to be adequate for theaters and con-

cert halls, but may not suffice in sports areas

or race tracks where the audience frequently

stands throughout a large portion of the

game or event. In alterations of existing

sports arenas, accessible spaces are fre-

quently provided at the lower part of a seat-

ing tier projecting out above a lower seating

tier or are built out over existing seats at the

top of a tier providing a great differential in

height. These solutions can work in newly

constructed sports arenas as well, if sight

lines relative to standing patrons are consid-

ered at the time of initial design. The Board

seeks comments on whether the full lines of

sight over standing spectators in sports are-

nas and other similar assembly areas should

be required.

56 Fed. Reg. at 2314.

One month later, in February 1991, the DOJ

published its own Notice of Proposed Rulemaking. 56

Fed. Reg. 7452 (1991). With respect to the standards

for new construction and alterations, the proposed

rules stated that the standards would be published as

Appendix A, and that Appendix A would be the

App. 7

ADAAG proposed by the Access Board in its January

1991 notice of proposed rulemaking, together “with

any amendments made by the [Access Board] during

its rulemaking process.” 56 Fed. Reg. at 7478, 7492.

“The Department proposes to adopt these guidelines

as the accessibility standard applicable under this

rule.” 56 Fed. Reg. at 7478-79. The DOJ requested

that any comments on the Access Board’s notice of

proposed rulemaking be sent to the Access Board. 56

Fed. Reg. at 7479.

In July 1991, the Access Board published its final

ADAAG. 56 Fed. Reg. 35,408 (1991). Section 4.33.3

was modified to read, “Wheelchair areas shall be an

integral part of any fixed seating plan and shall be

provided so as to provide people with physical dis-

abilities a choice of admission prices and lines of sight

comparable to those for members of the general

public.” 56 Fed. Reg. at 35,514 (italics omitted). The

Board addressed the problem of “lines of sight over

standing spectators in sports arenas and other simi-

lar assembly areas” and noted that “[mJany com-

menters also recommended that lines of sight should

be provided over standing spectators.” 56 Fed. Reg. at

35,440. To this, the Access Board simply stated that

“the issue of lines of sight over standing spectators

will be addressed in guidelines for recreational facili-

ties,” :d., guidelines the Access Board, evidently, had

not proposed.

The very same day that the Access Board final-

ized its guidelines, the DOJ issued its final Title III

regulations. 56 Fed. Reg. 35,544 (1991). As the DOJ

App. 8

had previously announced, it “adopt[ed] the ADAAG

as the accessibility standard applicable under this

rule.” 56 Fed. Reg. at 35,585. The DOJ incorporated

the ADAAG -— including § 4.33.3 - verbatim in Ap-

pendix A. See 28 C.F.R. 36.406 & App. A. The com-

mentary accompanying the regulations stated that

the “[DOJ] put the public on notice, through the

proposed rule, of its intention to adopt the proposed

ADAAG, with any changes made by the Board, as the

accessibility standards.” 56 Fed. Reg. at 35,586. The

DOJ further indicated that “comments on the De-

partment’s proposed rule ... have been addressed

adequately in the final ADAAG. Largely in response

to comments, the Board made numerous changes

from its proposal.” Jd. The DOJ did not expressly

address lines of sight.

3. The DOJ’s Technical Assistance Manual

Title II?’s new construction provisions, including

§ 4.33.3, became effective in January 1993. That

same year, pursuant to Title III’s directive to provide

technical assistance to covered entities, the DOJ

published a Technical Assistance Manual (“TAM”).

See 42 U.S.C. § 12206(a), (c)(2\C). The 1993 TAM

was silent on § 4.33.3. The 1994 published supple-

ment to the TAM, however, provided an interpreta-

tion for § 4.33.3 that was more aggressive than the

Access Board’s commentary:

In addition to requiring companion seating

and dispersion of wheelchair locations,

ADAAG requires that wheelchair locations

App. 9

provide people with disabilities lines of sight

comparable to those for members of the gen-

eral public. Thus, in assembly areas where

spectators can be expected to stand during

the event or show being viewed, the wheel-

chair locations must provide lines of sight

over spectators who stand. This can be ac-

complished in many ways, including piacing

wheelchair locations at the front of a seating

section, or by providing sufficient additional

elevation for wheelchair locations placed at

the rear of seating sections to allow those

spectators to see over the spectators who

stand in front of them.

TAM § III-7.5180 (1994 Supp.).

4. The Access soard’s Subsequent Guide-

lines

In 1992, the Access Board repeated its intent “to

address the issue of lines of sight over standing

spectators in the guidelines for recreational facilities

which will be proposed at a future date.” 57 Fed. Reg.

60,612, 60,618 (1992). It requested “comments on the

design issues associated with providing integrated

and dispersed accessible seating locations with a

clear line of sight over standing spectators in arenas,

stadiums or other sports facilities.” Id. The Access

Board also noted that during the initial notice and

comment procedures “laJn overwhelming majority of

responses favored including a provision requiring

lines of sight over standing spectators in sports

arenas and other similar assembly areas.” Jd.

App. 10

In November 1999, the Access Board finally

proposed amendments to its guidelines to address the

standing spectators problem. 64 Fed. Reg. 62,248,

62,501-02 (1999). These were adopted in July 2004.

69 Fed. Reg. 44,083 (2004). Guideline 802.2 now

distinguishes between “lines of sight over seated

spectators” and “lines of sight over standing specta-

tors.” 69 Fed. Reg. at 44,391-93. Guideline 802.2.2.1

reads: “Where standing spectators are provided lines

of sight over the heads of spectators standing in the

first row in front of their seats, spectators seated in

wheelchair spaces shall be afforded lines of sight over

the heads of standing spectators in the first row in

front of wheelchair spaces.” 69 Fed. Reg. at 44,392-93.

The DOJ has not adopted the Access Board’s 2004

guidelines. Instead, the DOJ’s current regulation of

lines of sight requirements remains 28 C.F‘R. pt. 36,

App. A, § 4.33.3, as interpreted by TAM § III-7.5180

(1994 Supp.).’

' The DOJ has informed us that on June 17, 2008, the DOJ

published proposed regulations that would amend the DOuJ’s

ADA regulations. 73 Fed. Reg. 34,508 (2008). The proposed

regulations would adopt the Access Board’s 2004 guidelines,

including Guideline 802.2.2.1, which requires lines of sight over

standing spectators. The regulations have not yet been adopted,

and, even if adopted, will not apply retroactively. We understand

that these are clarifying regulations, not an admission that the

DOJ's original guidelines did not require lines of sight over

standing spectators.

App. ll

B. The Proceedings

On October 25, 2001, Miller filed his district

court complaint, alleging, among other things, that

Speedway violated Title [II of the ADA, 42 U.S.C.

§ 12181 et seg. On cross motions for summary judg-

ment, the district court granted judgment for Speed-

way. The court acknowledged that “the DOJ’s current

position on ADAAG § 4.33.3 is reasonable” and was

consistent with Title III of the ADA and that “[wlere

the [clourt to write on a clean slate, the [c]ourt would

be tempted to hold that § 4.33.3 requires lines of sight

over standing spectators.” Miller, 453 F. Supp. 2d at

1198, 1204. It found, however, that the DOJ had

bound itself to the Access Board’s commentary imply-

ing that the Access Board’s 1991 guidelines (and,

consequently, the DOJ’s 1991 standards) did not

address the question of lines of sight over standing

spectators. Jd. at 1203. Accordingly, the court con-

cluded that the DOJ’s current position — found in the

1994 Supplement to the TAM -— that facilities must

provide lines of sight over standing spectators was “‘a

fundamental modification of its previous interpreta-

tion’” and had to be adopted through notice-and-

comment rulemaking. 453 F. Supp. 2d at 1201 (quot-

ing Paralyzed Veterans of America, 117 F.3d 579, 586

(D.C. Cir. 1997)). It thus rejected the D.C. Circuit’s

interpretation in Paralyzed Veterans and agreed with

the Third Circuit’s opinion in Caruso v. Blockbuster-

Sony Music Entertainment Centre, 193 F.3d 730 (3d

App. 12

Cir. 1999). Miller, 453 F. Supp. 2d at 1203. Miller

appeals.”

Ii. ANALYSIS

We begin our analysis by stating what is not at

issue in this case. This case does not involve whether

the DOJ has reasonably interpreted the ADA within

the meaning of Chevron U.S.A., Inc. v. NRDC, 467

U.S. 837 (1984). No party to the litigation challenges

the substantive validity of § 4.33.3, and sensibly, no

party has argued that the DOJ has exceeded its

authority under the ADA. Nor is § 4.33.3 subject to

serious challenge as “arbitrary and capricious.” See

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 42-44 (1983). Al-

though this is a private suit by Miller against the

Speedway for violating the ADA, the parties all

concede that the Attorney General’s lines-of-sight

regulations would clearly pass muster if challenged

under the ADA. See Indep. Living Res., 982 F. Supp.

at 734 (“DOJ reasonably could have concluded that

lines of sight over standing spectators are neces-

sary.... The ADA provides ample legal authority to

support such a requirement.”); see also Paralyzed

Veterans, 117 F.3d at 582-83 (“[A]lppellants do not

’ A district court’s grant of summary judgment is reviewed

de novo. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252,

1257 (9th Cir. 2001). There are no genuine issues of material

fact, so our sole inquiry is whether the district court correctly

applied the law. Jd.

App. 13

contend that the Department’s interpretation of the

regulation is unfaithful to the governing statute.”).

A. The TAM as the DOJ’s Interpretation of Its

Own Regulation

[3] What is challenged here is whether the lines-

of-sight provision in the Attorney General’s 1994

Supplement to the TAM is a valid construction of

§ 4.33.3. While Chevron addresses what kind of

deference we must afford an agency in the interpreta-

tion of the statute it has been charged with enforcing,

see 467 U.S. at 842, here we are dealing with the

leeway we must grant an agency in the interpretation

of its own regulations. We must give an agency’s

interpretation of its own regulations “controlling

weight unless it is plainly erroneous or inconsistent

with the regulation.” Bowles v. Seminole Rock &

Sand Co., 325 U.S. 410, 414 (1945). “In other words,

we must defer to the [agency’s] interpretation unless

an ‘alternative reading is compelled by the regula-

tion’s plain language or by other indications of the

[agency’s} intent at the time of the regulation’s prom-

ulgation.’” Thomas Jefferson Univ. v. Shalala, 512

U.S. 504, 512 (1994) (quoting Gardebring v. Jenkins,

485 U.S. 415, 430 (1988)). We have explained that

“twJhen the meaning of regulatory language is am-

biguous, the agency’s interpretation controls ‘so long

as it is “reasonable,” that is, so long as the interpreta-

tion sensibly conforms to the purpose and wording of

the regulations.’” Or. Paralyzed Veterans of Am. uv.

Regal Cinemas, Inc., 339 F.3d 1126, 1131 (9th Cir.

App. 14

2003) (quoting Martin v. Occupational Safety &

Health Review Comm’n, 499 U.S. 144, 150-51 (1991)).

Furthermore, we have previously held that the

TAM itself is entitled to substantial deference. “The

guidance provided in the technical assistance manual

is an interpretation of the DOJ’s regulation and, as

such, is entitled to significant weight as to the mean-

ing of the regulation.” Disabled Rights Action Comm.

v. Las Vegas Events, Inc., 375 F.3d 861, 875-76 (9th

Cir. 2004) (citations omitted). Where “[t]he DOJ’s

interpretation [in the TAM] is entirely consistent

with the regulation, ... it is due deference.” Botosan

v. Paul McNally Realty, 216 F.3d 827, 834 (9th Cir.

2000). Accordingly, “[t]he Justice Department’s inter-

pretation of its own regulations, such as the Technical

Assistance Manual, must also be given substantial

deference and will be disregarded only if ‘plainly

>”?

erroneous or inconsistent with the rcgulation.’” Bay

Area Addiction Research v. City of Antioch, 179 F.3d

725, 732 n.11 (9th Cir. 1999) (quoting Thomas Jeffer-

son Univ., 512 U.S. at 512).

[4] The language of § 4.33.3 requiring “lines of

sight comparable to those for members of the general

public” is ambiguous. Indeed, both the Third and the

D.C. Circuits, although they ultimately reach oppo-

site conclusions on the merits, agree that the plain

language of the regulation is ambiguous and subject

to differing interpretations. See Caruso, 193 F.3d at

733 (“In the end it seems that both interpretations of

the ‘lines of sight’ language are plausible.”); Paralyzed

Veterans, 117 F.3d at 583 (“the phrase is ambiguous”).

App. 15

We agree that the phrase “lines of sight” in § 4.33.3 is

subject to several interpretations.

One possible interpretation is that the phrase

means that wheelchair patrons must have a view

without physical obstructions. See Lara v. Cinemark

USA, Inc., 207 F.3d 783, 788-89 (5th Cir. 2000). We

have already held that this reading is too narrow to

be compelled by the language of § 4.33.3, and the

Attorney General is entitled to read the provision

more broadly. Regal Cinemas, 339 F.3d at 1132.

A more plausible interpretation of the phrase is

that it means that wheelchair areas are to be dis-

persed throughout a facility, such that wheelchair

users have a variety of horizontal viewing angles

from which to choose. See Caruso, 193 F.3d at 732.

This ensures that wheelchair patrons at a footbail

game are not all stuck, for example, behind the

goalposts. This interpretation is supported by the fact

that § 4.33.3 also requires a “choice of admission

prices” to account for the difference between an end

zone and a mid-field seat.

Alternatively, the phrase can be read to require

more than horizontal dispersal; it could be read to

require vertical dispersal as well, so that patrons

have a choice of seats — for example, between the

orchestra and the loges — to obtain a different viewing

angle. Under this reading, the phrase “lines of sight”

would refer to the angle of sight between the viewer

and the stage, screen, or playing field. The latter

definition of “lines of sight” would encompass both the

App. 16

notion of a horizontal line of sight and a vertical line

of sight.

Finally, yet another interpretation does not

merely involve the horizontal or vertical dispersal of

the wheelchair seating options, but rather suggests

that the line of sight of a wheelchair patron must be

comparable to the line of sight of a non-wheelchair

patron who has chosen the same seat. Under this

interpretation it is easy to see that at some events

(principally sporting events), a “comparable” line of

sight would encompass an unobstrugfed line of sight

when other patrons are standing. When the crowd is

generally standing, most spectators can also stand

and, in doing so, enable themselves to substantially

see the event. Therefore, in order to be given a com-

parable line of sight, wheelchair users must also be

able to see the event when the crowd is standing.

Any of these interpretations would be a reason-

able reading of the ambiguous plain language of the

regulation. In fact, the phrase “lines of sight compa-

rable to those for members of the general public”

could be interpreted to require a combination of the

proposed interpretations. That is, it is possible that a

comparable line of sight means that the view is

unobstructed by physical obstacles, that the seats

must be horizontally and vertically dispersed, and

that wheelchair patrons must be able to see over

standing patrons.

[5] In its 1994 supplement to the TAM, the DOJ

made it clear that at the very least the phrase “lines

App. 17

of sight comparable to those for members of the

general public” in § 4.33.3 required that “in assembly

areas where spectators can be expected to stand

during the event or show being viewed, the wheel-

chair locations must provide lines of sight over spec

tators who stand.” TAM § III-7.5180 (1994 Supp.).

The Attorney General’s interpretation of § 4.33.3 is

“neither plainly erroneous [nJor inconsistent with the

regulation.” Thomas Jefferson Univ., 512 U.S. at 512.

As a linguistic matter it is perfectly reasonable to

interpret the term “lines of sight comparable to those

for members of the general public” as requiring lines

of sight that are comparable in the actual conditions

under which a facility operates. If spectators are

widely expected to stand during the key moments of

an event, then comparable lines of sight for wheel-

chair users could be lines of sight that enable the

wheelchair users to see during those moments. If the

spectators stand during the singing of the national

anthem, routinely jump to their feet during the fourth

quarter, or insist on standing on their chairs during

the third overtime, it does not take a fertile legal

imagination to understand that relatively :immobile

patrons will not have a comparable line of sight.

[6] Furthermore, the DOJ’s 1994 interpretation

is consistent with the statutory requirement that the

facilities be “readily accessible to” and “usable by”

persons with disabilities. 42 U.S.C. § 12183(a)(1). To

meaningfully use the Speedway facilities, a wheel-

chair patron needs to be able to see the event in the

circumstances under which the race typically takes

App. 18

place, with a standing audience. Otherwise the

Speedway race track is not “usable” as a practical

matter. Because the DOJ’s interpretation is a reason-

able, practical construction in light of the ambiguity

of the regulation, it is entitled to substantial defer-

ence.

Our decision is consistent with our treatment of

the DOJ’s “comparable lines-of-sight” regulations in

the context of theater seating in Regal Cinemas, 339

F.3d at 1127. The district court had held that “the

language about ‘lines of sight comparable to those for

members of the general public’ in § 4.33.3 does not

require that wheelchair-accessible seating afford

patrons comparable viewing angles to those in non

accessible seating.” Jd. at 1129 (citing Oregon Para-

lyzed Veterans of Am. v. Regal Cinemas, Inc., 142

F. Supp. 2d 1293, 1297-98 (D. Or. 2001)). The district

court had followed Lara v. Cinemark USA, Inc., 207

F.3d 783 (5th Cir. 2000), in which the Fifth Circuit

pointed out that “questions regarding ‘viewing angle’

did not arise until well after the DOJ promulgated

section 4.33.3” and concluded that “lines of sight”

referred to nothing more than “unobstructed views.”

Id. at 788-89.

[7] We rejected the Fifth Circuit’s reasoning and

reversed the district court. We concluded that “lines

of sight” “[iJn the context of a movie theater, [] means

a line extending from the viewer’s eye to the points on

the screen where the film is projected, taking into

account the angle from the viewer’s eye to those

points.” Regal Cinemas, 339 F.3d at 1131. We framed

App. 19

the question as “whether it is unreasonable for DOJ

to interpret ‘comparable line of sight’ to encompass

factors in addition to physical obstructions, such as

viewing angle. The answer, in light of the plain

meaning of the regulation both in general and as

understood in the movie theater industry, is ‘no.’” Jd.

at 1132. Accordingly, we held that DOJ’s interpreta-

tion of § 4.33.3 was “valid and entitled to deference.”

Id. at 1133.

[8] A sporting event presents a different set of

challenges from a movie theater, which has a fixed

screen and relatively placid patrons. By contrast,

sporting events typically involve live action, moving

rapidly over playing surfaces many times larger than

a movie screen. When the audience — like the athletes

is in motion, arena designers, owners and patrons

have a set of problems to address that are not present

in a theater setting. It was not unreasonable for the

DOJ to interpret “lines of sight” as the actual “line

extending from the viewer’s eye to the [playing field],

taking into account the angle from the viewer’s eye to

those points.” /d. at 1131.

The TAM as the DOJ’s Own Interpretation

of the Access Board Guidelines

{9] As in Lara, a decision we declined to follow in

Regal Cinemas, the Speedway argues that the DOJ’s

position is an after-acquired view, one that “did

not arise until well after the DOJ promulgated sec-

tion 4.33.3.” Lara, 207 F.3d at 788-89. Indeed, the

App. 20

Speedway argues not just that the DOJ’s position is

an after-acquired view, but that the DOJ’s position on

lines of sight in the 1994 TAM suppiement substan-

tially departs from the Access Board’s original com-

mentary on lines of sight. Asserting that the Access

Board’s commentary must be imputed to the DOJ, the

Speedway contends that the DOJ’s subsequent posi-

tion is not entitled to substantial deference because it

was not promulgated according to notice and com-

ment rulemaking.

The district court in this case agreed that “the

board’s commentary must be imputed to the DOJ,”

although it also observed that if it were “to wrile on a

clean slate, [it] would be tempted to hold that § 4.33.3

requires lines of sight over standing spectators.” 453

F. Supp. 2d at 1203-04. In Caruso, the Third Circuit

took a similar position, relying on

the following factors: 1) thre DOJ referred all

comments to the Boards; 2) the DOJ relied

on the Board to make adequate changes

based on those comments; 3) the Board spe-

cifically changed the language of 4.33.3 in

response to comments and explained that

change in its commentary; 4) the DOJ was a

‘member of the board’ and ‘participated ac-

tively ...in preparation of both the proposed

and final versions of the [guidelines]’; and 5)

the DOJ’s commentary stated that the final

guidelines promulgated by the Board ade-

quately addressed all comments.

Caruso, 193 F.3d at 736 (citations omitted).

App. 21

The district court’s point, supported by Caruso, is

a fair one. See Thomas Jefferson Univ., 512 U.S. at

512 (we must defer “unless an alternative reading is

compelled by other indications of the Secretary’s

intent at the time of the regulation’s promulgation”)

(emphesis added; citation omitted). After all, in its

notice of proposed rulemaking, the DOJ stated that it

“propose[d] to adopt [the Access Board’s] guidelines as

the accessibility standard under this rule.” 56 Fed.

Reg. at 7478-79. The same day as the Access Board

published its standards, the DOJ formally “adopt[ed]

the ADAAG as the accessibility standard” as its own.

56 Fed. Reg. at 35,585, and on that day, the Access

Board stated that “the issue of lines of sight over

standing spectators will be addressed [in the future]

in guidelines for recreational facilities.” 56 Fed. Reg.

at 35,440.

[10] We understand why a reasonable reader

might conclude that as of July 1991, the DOJ’s new

ADA regulations did not address lines of sight over

standing spectators. We do not think, however, that

such a reading is “compelled” by the record. Se:

Thomas Jefferson Univ., 512 U.S. at 512. When the

DOJ adopted the Access Board’s guidelines as its own

standards, it literally adopted the guidelines. 28

C.F.R. § 36.406(a) (“New construction and alterations

subject to this part shall comply with the standards

for accessible design published as appendix A to this

part (ADAAG).”). It did not adopt any other Access

Board commentary, notices of proposed rulemaking,

or internal memoranda. Whatever the Access Board

App. 22

thought of its own guidelines, the Department of

Justice adopted the text of the guidelines themselves,

not the Access Board’s interpretation of that text. The

DOJ made the Access Boerd’s guidelines its own, and,

having done so, it assumed responsibility for inter-

preting the standards.’ As the Access Board has

explained: “The Board’s guidelines serve as the

baseline for standards used to enforce the ADA and

the ABA. These standards, which are maintained by

other Federal agencies, such as the U.S. Department

of Justice under the ADA, will be updated according

to the new guidelines. Jt is these standards, not the

Board’s guidelines, which the public must follow.”

U.S. Access Board, Americans with Disabilities Act

and Architectural Barriers Act Accessibility Guide-

lines n.p. (2004) (“Introduction”) (emphasis added).

[11] There was good reason for the DOJ to adopt

the text of the Access Board’s guidelines. The ADA

instructed the Access Board to issue minimum guide-

lines within nine months of enactment and ordered

the Attorney General to issue regulations within one

year. 42 U.S.C. §§ 12186(b), 12204(a). By Washington

‘he Access Board has explained the difference between its

“suidelines” and the Attorney General's “standards”: “Guidelines

are issued by the Board, standards by designated agencies such

as DOJ ADA standards issued by DOJ ... in 1991 based on

the Board’s original ADA Accessibility Guidelines (ADAAG)

remain the standards to follow at this time.” U.S. Access Board,

Americans with Disabilities Act and Architectural Barriers Act

Accessibility Guidelines n.p. (2004) (“Answers to Common

Questions About the New ADA-ABA Guidelines”

App. 23

standards, this required quick work. The Access

Board's dutiful response to the mandate enabled the

DOJ to get its own regulations into print on time.

More importantly, the ADA mandated that the DOJ’s

regulations “be consistent with the minimum guide-

lines and requirements issued by the [Access Beard].”

42 U.S.C. § 12186(c). By formally adopting the Access

Board’s guidelines, the DOJ ensured that its own

regulations were “consistent with” the Access Board’s

guidelines. It seems like an easy call for the Attorney

General to piggyback on the Access Board’s hard work

at getting the ADA up and running. Those guidelines,

however, were only a launching point for the DOJ,

which had to take care that its own regulations

complied with the Access Board guidelines at a

“minimum.” Jd. Nothing in the ADA or in the DOJ’s

own regulations bound the Attorney General to the

Access Board so long as the DOJ’s regulations satis-

fied some “minimum” level of equivalence. The Attor-

ney General was free to interpret the regulations in a

manner that was more strict than contemplated by

the Access Board. Therefore, the Access Board’s

commentary should not be imputed to the DOJ.

Once we admit that the line-of-sight regulations

are ambiguous, that the DOJ did not bind itself to the

Access Board’s interpretation of the guidelines, and

that the Attorney General was free to interpret the

regulations in a manner that was more strict than

the Access Board's guidelines, we have no difficulty in

concluding that the Attorney General could resolve

any ambiguity in the DOJ’s regulations by taking a

App. 24

stricter view of § 4.33.3 than the Access Board did

when it adopted its guidelines. The DOJ did not have

to wait for the Access Board to act.

Indeed, the DOJ demonstrated its independence

at a very early stage. The DOJ’s regulations became

effective in January 1993, and it issued its first TAM

that year, as required by 42 U.S.C. § 12206(c)(3). The

first TAM did not address the standing spectator

problem. The following year, in 1994, the DOJ pub-

lished a supplement to the TAM and offered its first

formal interpretation of the line-of-sight rule in

§ 4.33.3: “in assembly areas where spectators can be

expected to stand during the event or show being

viewed, the wheelchair locations must provide lines of

sight over spectators who stand.” TAM § III 7.5180

(1994 Supp.). The guidance in the TAM itself is plain;

its relationship to § 4.33.3, obvious.

C. The TAM as the DOJ’s Modification of Its

Own Interpretive Rules

Even if we were persuaded that the DOJ initially

adopted the Access Board’s interpretation that

§ 4.33.3 simply did not address the problem of stand-

ing spectators, the DOJ may change its mind. “The

[Attorney General] is not estopped from changing a

view she believes to have been grounded upon a

mistaken legal interpretation. ...[WJ]here the agency’s

interpretation of [its regulation] is at least as plausi-

ble as competing ones, there is little, if any reason not

to defer to its construction.” Good Samaritan Hosp. v.

App. 25

Shalala, 508 U.S. 402, 417 (1993). The only question

is whether, in order to effectuate the change, the DOJ

had to proceed through notice and comment.

[12] We think that, even if the DOJ’s interpreta-

tion constituted a change in the understanding of its

original regulations, the DOJ was not required to

proceed by notice and comment because both the

Access Board’s original position (as imputed to the

DOJ) and the TAM would constitute interpretive

rules. See 5 U.S.C. § 553(b)(3)(A); Erringer v. Thomp-

son, 371 F.3d 625, 630 (9th Cir. 2004) (holding that an

agency can modify an interpretive rule without notice

and comment). An interpretive rule is one “issued by

an agency to advise the public of the agency’s con-

struction of the statutes and rules which it adminis-

ters.” Shalala v. Guernsey Mem’ Hosp., 514 U.S. 87,

99 (1995) (quotation marks and citation omitted).

“(IJnterpretive rules merely explain, but do not add

to, the substantive law that already exists in the form

of a statute or legislative rule,” whereas legislative

rules “create rights, impose obligations, or effect a

change in existing law pursuant to authority dele-

gated by Congress.” Hemp Indus. Ass’n v. DEA, 333

F.3d 1082, 1087 (9th Cir. 2003).

[13] In one sense, the 1994 Supplement to the

TAM imposed obligations that might not have been

anticipated. We understand how, from the perspective

of facility owners such as Speedway, the 1994 Sup-

plement appears to be a legislative rule. On the other

hand, the 1994 Supplement added nothing to the

existing rule except a definition of an ambiguous

App. 26

term; it merely clarified the DOJ’s view of the scope of

§ 4.33.3. That is the purpose of an interpretive rule. A

rule does not become a legislative rule because it

effects some unanticipated change; otherwise, only

superfluous rules could qualify as interpretive rules.

See Erringer, 371 F.3d at 632 (rejecting the argument

that notice and comment must apply “where one

unpublished policy is replaced by a revised version of

that policy that significantly affects members of the

public.”) We do not think that interpretive rules must

be so useless. In sum, we conclude that the 1994

Supplement to the TAM was an interpretive rule and,

even if it reflected a change in the DOJ’s thinking

about comparable lines of sight, it was a reasonable

interpretation of an ambiguous regulation that did

not require notice and comment prior to publication.

ITT.

The regulatory scheme at issue in this case is

complex, but our conclusion is simple: the DOJ’s

interpretation of its own regulation is reasonable and

therefore entitled to substantial deference. The

judgment is REVERSED.

App. 27

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ROBERT MILLER. ) Case No. EDCV 01-00434 SGL

Plaintiff ) ORDER DENYING

) PLAINTIFF’S MOTION FOR

ey ) SUMMARY JUDGMENT

; )

THE CALIFORNIA ) ORDER GRANTING

SPEEDWAY , DEFENDANT'S MOTION

CORPORATION, ) FOR SUMMARY JUDGMENT

Defendant. ) (Filed Sep. 8, 2006)

This matter is before the Court on the parties’

cross-Motions for Summary Judgment (plaintiff’s,

filed on January 30, 2006, and defendant’s, filed on

January 31, 2006). The Court has read and consid-

ered the moving, opposition, and reply documents, as

well as an evidentiary objection and the parties’

evidence. The Court has also considered an Amicus

Brief, filed by the United States Department of

Justice on June 9, 2006, and defendant’s Reply

thereto. The matter was heard on August 28, 2006.

Pursuant to the evidence presented and arguments

offered by the parties, the Court issues the following

order DENYING plaintiff’s Motion for Summary

Judgment and GRANTING defendant’s Motion for

Summary Judgment.

App. 28

Nature of the Case and Issue Presented

This action is brought pursuant to Title III of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12181-12189, and arises out of the inability of a

wheelchair-bound NASCAR race spectator to see over

the heads and bodies of ambulatory spectators who

stand during the exciting parts of NASCAR races. In

addition to the ADA claim, plaintiff brings similar

state-law claims.

The undisputed facts presented by this action

require the Court to determine what deference, if

any, should be given to the Department of Justice’s

(“the DOJ”) interpretation of a provision of the

Americans with Disabilities Act Accessibility Guide-

lines (““ADAAG”). See 28 C.F.R., Pt. 26, Appdx. A,

§ 4.33.3 (hereinafter “ADAAG” § 4.33.3). Specifically,

this case addresses the deference to be given the

DOJ’s interpretation of ADAAG § 4.33.3, which reads:

“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 generai public.” The DOJ

has interpreted § 4.33.3 to mean that, “in assembly

areas where spectators can be expected to stand

during the event or show being viewed, the wheel-

chair locations must provide lines of sight over spec-

tators who stand.” 1994 Supplement, DOJ Technical

Assistance Manual, § III-7.5180 (hereinafter “1994

TAM Supplement”).

App. 29

In the end, the Court determines that, as a

matter of law, it may not give deference to the DOJ’s

current position on § 4.33.3, as expressed in the 1994

TAM Supplement. Moreover, because the DOJ’s 1994

interpretation imposing the “lines of sight” require-

ment was adopted without the requisite notice-and-

comment period mandated by the Administrative

Procedure Act (“APA”), the interpretation, and thus

the requirement, must be rejected in favor of the

DOJ’s original interpretation that failed to impose the

“lines of sight” requirement.

II. Objection to Evidence

Defendant objects to plaintiff’s expert’s declara-

tion in which the expert offers an opinion that defen-

dant argues amounts to a conclusion of law. See

Bishop Decl. 7 8 (“It is my expert opinion that the

upper[-Jlevel wheelchair seating area does not pro-

vide wheelchair patrons a line of sight over standing

spectators.”). Defendant’s objection is overruled.

Although Bishop uses the same phrase as the regula-

tion, “line of sight,” it is clear in context that Bishop

is not making a conclusion of law; rather, Bishop

merely offers the opinion that, based on his examina-

tion of the site, plaintiff, when using his wheelchair,

would be unable to see the track over standing spec-

tators. Therefore, the opinion addresses a matter of

fact.

By contrast, defendant’s expert offers a conclu-

sion of law. See Gibbens Decl. 97 (“In my on-site

App. 30

inspection of THE CALIFORNIA SPEEDWAY, as well

as review of diagrams of the [S]peedway, I agree that

the subject seating does in fact comply with the

applicable provisions of the [Americans with Disabili-

ties Act Accessibility Guidelines] and the [California

Building Code] and that plaintiff’s allegations are

without merit.... [P]laintiff’s contention that he is

entitled to an unobstructed line of sight over the

heads of standing spectators is without merit.”).

The Court will draw its own conclusions of law.

Ill. Uncontroverted Facts

Defendant, the California Speedway Corporation

(“the Speedway”), operates a racing track located in

Fontana, California. The Speedway is a track and

stadium facility that is open to and sells tickets to the

public for events such as NASCAR racing. The

Speedway was built after January, 1993.

Plaintiff Robert Miller is disabled and uses a

wheelchair for mobility. Specifically, plaintiff became

a quadriplegic after an injury severed his spinal cord

at the C5/C6 vertebra level.

Each year since the Speedway opened in 1997,

plaintiff has attended three to six of its NASCAR

races.

The Speedway has wheelchair spaces located on

the upper level of the Speedway. When plaintiff

occupies these spaces in his wheelchair, he is unable

to see over the ambulatory spectators in the rows in

App. 31

front of him when those spectators stand.’ Not sur-

prisingly, the ambulatory spectators tend to stand up

to see the more exciting parts of the race, making it

impossible for plaintiff to see “the part of the race [he|

wants to see the most.” Miller Depo. at 27.

IV. Summary Judgment Standard

Summary judgment is proper only where “the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. Rule Civ. P. 56(c).

Plaintiff offers his declaration and photographs taken by

him as evidence on this point. Plaintiff also offers the declara-

tion of his expert, who is of the opinion that, based on his

examination of the site and an analysis that employed the use of

industry standard “average anthropomorphic dimensions,”

plaintiff is unable to see the track over standing spectators. In

response, defendant offers evidence, in the form of an expert

declaration and photographs taken by its expert, purporting to

controvert this fact. The Gibbens declaration establishes that

the wheelchair spaces plaintiff occupied are located on an

elevated platform behind seating for ambulatory spectators, as

illustrated by the accompanying pictures. However, the pictures

are of an empty stadium, without any standing spectators, and

it is unclear whether the photographs were taken from the angle

which a wheelchair-bound spectator would view the stadium

and track. This evidence fails to dispute plaintiff's testimony

and photographic evidence that, from his eye-level while seated

in his wheelchair, he is unable to see over spectators standing in

front of him

App. 32

The moving party bears the initial burden of

demonstrating the absence of a genuine issue of

material fact. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986). Whether a fact is material is

determined by looking to the governing substantive

law; if the fact may affect the outcome, it is material.

Id. at 248.

If the moving party meets its initial burden, the

“adverse party may not rest upon the mere allega-

tions or denials of the adverse party’s pleading, but

the adverse party’s response, by affidavits or as

otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.”

Fed. R. Civ. P. 56(e). Mere disagreement or the bald

assertion that a genuine issue of material fact exists

does not preclude the use of summary judgment.

Harper v. Wallingford, 877 F.2d 728 (9th Cir. 1989).

V. Plaintiff’s ADA Claim

A. ADA Title Ill

Title III of the ADA prohibits discrimination “on

the basis of disability in the full and equal enjoyment

of the goods, services, facilities, privileges, advan-

tages, or accommodations of any place of public

accommodation.” 42 U.S.C. § 12182(a). The ADA defini-

tion of “public accommodation” includes race tracks

such as the Speedway. See 42 U.S.C. § 12181(7)(c)

(“‘Public accommodation’ [includes] a motion picture

house, theater, concert hall, stadium, or other place of

exhibition or entertainment... .”). Title III requires

App. 33

that facilities constructed for first occupancy on or

after January 26, 1993, be “readily accessible to

and usable by individuals with disabilities, except

where an entity can demonstrate that it is structur-

ally impracticable.” 42 U.S.C. § 12183; 28 C.F .R.

§ 36.401(a)(1).

To implement these provisions, Congress directed

the Department of Justice to “issue rezulations

that include standards applicable to facilities” cov-

ered by Title III. 42 U.S.C. 12186(b). These standards

must “be consistent with the minimum guidelines

and requirements issued by the Architectural and

Transportation Barriers Compliance Board” (“Access

Board”). 42 U.S.C. § 12186(c).

Pursuant to this statutory authority, the DOJ

has issued voluminous regulations implementing

Title III. See generally 28 C.F-R., part 36. Significant

to this case is ADAAG § 4.33.3, which requires that

wheelchair-bound spectators be afforded “lines of

sight comparable to those for members of the general

public.” Jd. Specifically, at issue in this case is

whether the Court must give deference to the

DOJ’s position that § 4.33.3 requires that wheelchair

spaces must be situated in such a manner as to give

‘ The Access Board is a federal agency that was created by

the Rehabilitation Act of 1973. See 29 U.S.C. § 792(a). The ADA

required that the Access Board, within nine months of July 26,

1990, to issue “minimum guidelines” to supplement the Board’s

“existing Minimum Guidelines and Requirements for Accessible

Design.” 42 U.S.C. § 12204(a).

App. 34

wheelchair-bound spectators a clear line of sight over

standing spectators. See Thomas Jefferson University

v. Shalala, 512 U.S. 504, 512 (noting that an agency’s

interpretation of its own regulation must be given

deference so long as it is not “plainly erroneous or

inconsistent” with the regulation).

B. The DOJ’s Current Interpretation is

Reasonable

Courts are required to “give substantial defer-

ence to an agency’s interpretation of its own regula-

tions.” Thomas Jefferson University, 512 U.S. at 512.

In other words, the court need not “decide which

among several competing interpretations best serves

the regulatory purpose[; rJather, the agency’s inter-

pretation must be given controlling weight unless it is

plainly erroneous or inconsistent with the regula-

tion.” /d. (internal quotation marks and citations

omitted).

Here, the Court is satisfied that the DOJ’s cur-

rent position on ADAAG § 4.33.3 is reasonable. Title

Ill requires that public accommodations be “readily

accessible to and usable by individuals with disabili-

ties.” 42 U.S.C. § 12183(a). Title III also requires that

persons with disabilities be afforded “the full and

equal enjoyment of ... public accommodation{[s].” 42

U.S.C. § 12182(a). ADAAG § 4.33.3 requires that

disabled individuals who use wheelchairs for mobility

be afforded lines of sight that are comparable to non-

disabled individuals. The DOJ’s interpretation — that

App. 35

wheelchair-bound spectators be afforded lines of sight

over standing spectators at events where spectators

are expected to stand — is wholly consistent with

these provisions.

Moreover, although courts are divided on

whether the DOJ’s position must be given deference,

see infra, no court to consider the issue has concluded

that the DOJ’s position is unreasonable. See Para-

lyzed Veterans of America v. D.C. Arena L.P., 117 F.3d

579, 584-85 (D.C. Cir. 1997) (finding that ADAAG

§ 4.33.3 is “susceptible to [the DOJ’s] present inter-

pretation” and that it was therefore reasonable); cert.

denied, 523 U.S. 1003 (1998); United States v. Ellerbe

Becket, Inc., 976 F. Supp. 1262, 1268-69 (D. Minn.

1997) (same); Caruso v. Blockbuster-Sony Music

Entertainment Centre at the Waterfront, 193 F.3d 730

(3d Cir. 1999) (noting that the DOJ’s position is

“plausible and ... consistent with the ADA’s purpose

of enabling people with disabilities to share equally in

the benefits provided by a public accommodation”);

Independent Living Resources v. Oregon Arena Corp.,

982 F. Supp. 698 (D. Ore. 1997) (noting that “[tJhe

ADA provides ample legal authority to support” a

requirement that public accommodations provide

lines of sight over standing spectators during events

at which spectators are expected (or even encouraged)

to stand).

That the DOJ interpretation is reasonable,

however, is not the end of the Court’s inquiry. As the

parties’ arguments and relevant case law acknowl-

edge, the analysis of whether the Court must defer to

App. 36

the DOJ’s position requires the Court to consider

whether the interpretation represents “a fundamen-

tal modification of its previous interpretation.” Para-

lyzed Veterans of America, 117 F.3d at 586; see also

Thomas Jefferson University, 512 U.S. at 512 (“we

must defer to the Secretary’s interpretation unless an

“alternative reading is compelled by the regulation’s

plain language or by other indications of the Secre-

tary’s intent at the time of the regulation’s promulga-

tion.”). This determination begins with an examination

of the unique procedural history behind § 4.33.3.

C. Procedural History of the Adoption

of § 4.33.3

Section 4.33.3 ts found in Appendix A to Title 28,

part 36 of the Code of Federal Regulation. It reads:

Placement of Wheelchair Locations.

Wheelchair areas shall be an integral part of

any fixed seating plan and shall be provided

so as to provide people with physical disabili-

ties a choice of admission prices and lines of

sight comparable to those for members of the

general public. They shall adjoin an accessi-

ble route that also serves as a means of

egress in case of emergency. At least one

companion fixed seat shall be provided next

to each wheelchair seating area. When the

seating capacity exceeds 300, wheelchair

spaces shall be provided in more than one lo-

cation.

App. 37

Id. Without giving any notice and without eliciting

any comments, the DOJ has since 1994 interpreted

§ 4.33.3 to require lines of sight over the heads of

standing spectato

In addition to requiring companion seat-

ing and dispersion of wheelchair locations,

[Standard 4.33.3] requires that wheelchair

locations provide people with disabilities

lines of sight comparable to those for mem-

bers of the general public. Thus, in assembly

areas where spectators can be expected to

stand during the event or show being viewed,

the wheelchair locations must provide lines

of sight over spectators who stand. This can

be accomplished in many ways, including

placing wheelchair locations at the front of a

seating section, or by providing sufficient

additional elevation for wheelchair locations

placed at the rear of seating sections to allow

those spectators to see over the spectators

who stand in front of them.

1994 DOJ TAM § ITI-7.5180.

Standard 4.33.3 was first proposed by the Access

Board on January 22, 1991. At that time, it stated:

“Placement of Wheelchair Locations. Wheelchair

areas shall be an integral part of any fixed seating

plan and shall be dispersed throughout the seating

area. They shall ... be located to provide lines of

sight comparable to those for all viewing areas.”

Proposed Rules, Architectural and Transportation

Barriers Compliance Board, 56 Fed. Reg. 2296-01,

2380 (Jan. 22, 1991). Accompanying proposed § 4.33.3

App. 38

was a public notice regarding the proposed rule,

inviting comments regarding the issue of lines of

sight over standing spectators:

Section 4.33.3 provides that seating loca-

tions for people who use wheelchairs shall be

dispersed throughout the seating area and

shall be located to provide lines of sight com-

parable to those for all viewing areas. This

requirement appears to be adequate for

theaters and concert halls, but may not suf-

fice in sports arenas or race tracks where the

audience frequently stands throughout a

large portion of the game or event. In altera-

tions of existing sports arenas, accessible

spaces are frequently provided at the lower

part of a seating tier projecting out above a

lower seating tier or are built out over exist-

ing seats at the top of a tier providing a great

differential in height. These solutions can

work in newly constructed sports arenas 4s

well, if sight lines relative to standing pa-

trons are considered at the time of the initial

design. The Board seeks comments. on

whether full lines of sight over standing

spectators in sports arenas and other similar

assembly areas should be required.

56 Fed. Reg. at 2314.

A month later, on February 22, 1991, the DOJ

published a notice in which it proposed to adopt the

Access Board’s Proposed Guidelines “with any

amendments made by the [Access Board] during the

rulemaking process.” Proposed Rules, Department of

App. 39

Justice, 56 Fed. Reg. 7452-01, 7478-79 (Feb. 22,

1991). The DOJ notice stated that “any comments” on

the Access Board’s Proposed Guidelines should be

sent directly to the Board. Jd. at 7479.

Five months later, on July 26, 1991, the Access

Board published its proposed final guidelines, includ-

ing comments regarding proposed § 4.33.3 with

respect to the issue of lines of sight over standing

spectators:

Comment. The [Board] asked questions

regarding ... lines of sight over standing

spectators in sports arenas and other similar

assembly areas.... Many commenters

recommended that lines of sight should be

provided over standing spectators. Re-

sponse.... The issue of lines of sight over

standing spectators will be addressed in

guidelines for recreational facilities.

Rules and Regulations, Architectural and Transporta-

tion Barriers Compliance Board, 56 Fed. Reg. 35408-

01, 35440 (July 26, 1991).

On the same day that the Access Board issued its

proposed guidelines, including the above comment,

the DOJ promulgated § 4.33.3, which is worded

identically to the Access Board’s final proposed text.

The DOJ did not explicitly adopt the Board’s com-

mentary, but instead issued this general statement:

The Department put the public on no

tice, through the proposed rule, of its inten-

tion to adopt the proposed [guidelines], with

App. 40

any changes made by the Board, as the ac-

cessibility standards. As a member of the

Board and of its ADA Task Force, the De-

partment participated actively in the public

hearings held on the proposed guidelines and

in preparation of both the proposed and final

versions of [the guidelines.|] ... [All] com-

ments on the Department’s proposed rule ..

have been addressed adequately in the final

[guidelines]. Largely in response to com-

ments, the Board made numerous changes

from its proposal.

Rules and Regulations, Department of Justice,

Fed. Reg. 35544-01, 35585 (July 26, 1991).

D. Defendant’s Argument that the DOJJ’s

Current Position is Inconsistent with

its Previous Position

Defendant argues that, based on this link be-

tween the DOJ and the Board in the rulemaking

process, along with the DOJ’s adoption of the text of

§ 4.33.3 (and its general statement approving of the

Board’s changes to the proposed guidelines), the

Board’s commentary regarding the intent to address

the issue of standing spectators at a future date must

be imputed to the DOJ. Therefore, under defendant’s

reasoning, the DOJ’s position at the time of the

promulgation of § 4.33.3 was that it did not address

the issue of standing spectators — a position it was

not free to change in 1994 without first going through

the notice-and-comment procedure required by APA.

See 5 U.S.C. § 553; Paralyzed Veterans, 117 F.3d at

App. 41

579 (“To allow an agency to make a fundamental

change in its interpretation of a substantive regula-

tion without notice and comment obviously would

undermine [the] APA requirements.”); Shalala ov.

Guernsey Memorial Hosp., 514 U.S. 87, 88 (1995)

(“APA rulemaking would still be required if [an

agency] adopted a new position inconsistent with any

of the [agency’s]| existing regulations.”).

The four courts that have considered this issue

are split down the middle. See Paralyzed Veterans of

America v. D.C. Arena L.P, 117 F.3d 579 (D.C. Cir.

1997) (Board commentary not binding on DOJ; DOJ’s

position on § 4.33.3 is entitled to deference), cert.

denied, 523 U.S. 1003 (1998); United States v. Ellerbe

Becket, Inc., 976 F.Supp. 1262 (D. Minn. 1997)

(same); Caruso v. Blockbuster-Sony Music Entertain-

ment Centre at the Waterfront, 193 F.3d 730 (3d Cir.

1999) (DOJ “implicitly adopted” the Board’s commen-

tary; DOJ’s position on § 4.33.3 is not entitled to

deference); Independent Living Resources v. Oregon

Arena Corp., 982 F. Supp. 698 (D. Ore. 1997) (attrib-

uting Board’s commentary to the DOJ; DOJ’s position

is not entitled to deference). A brief review of these

opinions is helpful to the Court’s analysis.

In Paralyzed Veterans, a group of paralyzed

veterans brought suit against an athletic arena to

require the arena to provide lines of sight over stand-

ing spectators. Jd. at 580. The court began its analysis

with an acknowledgment that agency interpretations

are generally given deference, so long as they are

reasonable. /d. at 584. Because the court concluded

App. 42

that § 4.33.3 could plausibly be interpreted in the

manner suggested by the DOJ, it was reasonable. Id.

at 584-85. This conclusion, however, did not end the

inquiry, because the court was required to consider

whether the DOJ’s current position was “a fundamen-

tal modification of its previous interpretation” that

would require formal modification through the notice-

and-comment process. /d. at 586; 5 U.S.C. § 553(b)-(c)

(requiring notice be given and comment be permitted

before an agency engaged in “rule making”); 5 U.S.C.

§ 551(5) (defining “rule making” to include “repeal”

and “amendment”).

The court determined that the Board’s commen-

tary should not be attributed to the DOJ; although it

acknowledged that it was plausible that the DOJ, at

the time of § 4.33.3’s adoption, held the same position

on standing spectators as did the Board, the court

also acknowledged that this was not the only reason-

able inference to be drawn. Paralyzed Veterans, 117

F.3d at 587. In the end, although conceding “the issue

[is] not easy,” the court reasoned that the Board’s

commentary should not be attributed to the DOJ

because (1) the DOJ did not explicitly adopt the

commentary; (2) it did not comment on the Board’s

concerns regarding standing spectators; (3) it did not

imply the regulation did not address the issue of

standing spectators, and (4) because the DOJ was

required only to adopt regulations that were consis-

tent with the minimum requirements issued

by the Board, nothing prevented the DOJ from

imposing greater burdens on entities covered by the

App. 43

regulations. /d. at 587. Because the court concluded

that the DOJ “never authoritatively adopted a posi-

tion contrary to” that set forth in the 1994 TAM, it

deferred to the DOJ’s position and held that the

athletic arena was required to provide wheelchair-

bound spectators with lines of sight over standing

spectat ors

The court in United States v. Ellerbe Becket, Inc.,

976 F. Supp. 1262 (D. Minn. 1997), adopted wholesale

the reasoning and holding of the D.C. Circuit in

Paralyzed Veterans.

In contrast to Paralyzed Veterans and Ellerbe

Becket stand Caruso v. Blockbuster-Sony Music

Entertainment Centre at the Waterfront, 193 F.3d 730

(3d Cir. 1999) and /ndependent Living Resources v.

Oregon Arena Corp., 982 F. Supp. 698 (D. Ore. 1997).

In Caruso, a wheelchair-bound patron sued a

music and entertainment facility because their

wheelchair spaces had no lines of sight over standing

spectators. 193 F.3d at 731. The Third Circuit held

that the DOJ “implicitly adopted” the Board’s com-

mentary regarding § 4.33.3 and therefore its current

position represents a change from its intent at the

time of § 4.33.3’s promulgation, rendering its current

position on § 4.33.3 unworthy of deference. /d. at 736

37 (citing Thomas Jefferson University, 512 U.S. at

512 (“[WJe must defer to the Secretary’s interpreta

tion unless an alternative reading is compelled by the

regulation’s plain language or by other indications of

the Secretary's intent at the time of the regulation’s

App. 44

promulgation.”)). The court attributed the Board’s

commentary to the DOJ for a number of reasons: (1)

The DOJ referred all comments on the proposed rules

to the Board; (2) the DOJ relied on the Board to make

adequate changes based on those comments; (3) the

Board specifically changed the language of § 4.33.3 in

response to comments and explained that change in

its commentary; (4) the DOJ was a “member of the

Board” and “participated actively ... in preparation

of both the proposed and final versions of the [guide-

lines)”; and (5) the DOJ’s commentary upon the

issuance of the Board’s final guidelines that the

Board adequately addressed all comments. Caruso,

193 F.3d at 736. In holding that it could not defer to

the DOJ’s current position on § 4.33.3, the Third

Circuit agreed with the D.C. Circuit's observation in

Paralyzed Veterans that “the issue is not easy,” but

nevertheless “respectfully disagree[dj” with the D.C.

Circuit’s contrary conclusion.

The Court in Independent Living reached the

same conclusion as did the court in Caruso, employ-

ing similar reasoning. In independent Living, a

disabled person brought an action against the owner

and operator of a sports arena. 982 F. Supp. at 706. At

issue was whether the court should defer to the DOJ’s

current position on § 4.33.3. The court acknowledged

that the DO.J’s current position was a reasonable one.

Id. at 734. However, it found that the DOJ’s current

position represented an impermissible change from

its previous position, as represented by the Board’s

commentary regarding § 4.33.3. The court attributed

App. 45

the Board’s commentary to the DOJ for a number of

reasons.

First, the DOJ did not make its “comments” a:

part of the notice-and-comment procedure; rather, it

relied on the Board to fulfill this role, and it found

these comments “adequate” in the general statement

it made at the time of the promulgation of § 4.33.3

Id. at 740-41 (“If the Access Board’s response to public

comments regarding individual Guidelines was not

implicitly incorporated by DOJ, then the agency did

not respond to those comments ee

Second, the DOJ referred any comments regard

ing the proposed regulations to the Board. If the

Board’s commentary was not binding on the DOJ,

then the notice-and-comment procedure would be “an

empty gesture.” Id. at 741; see Paulsen v. Daniels, 413

F.3d 999, 1008 (9th Cir. 2005) (“Ordinarily when a

regulation is not promulgated in compliance with the

APA, the regulation is invalid.”)

Third, the DOJ adopted the Access Board’s

commentary by virtue of its general statement that

the comments from the public were “addressed ade

quately in the final ADAAG” and by the “numerous

changes” that the Access Board had made in response

to those comments. /ndependent Living, 982 F. Supp

at 741

linally, the court was persuaded by the unique,

close relationship between the Board, which was

required to establish the minimum standards for the

ADA regulations, and the DO.J, which was required to

App. 46

promulgate ADA regulations that were consistent

with those minimum standards. /d. The court found

this relationship all the more persuasive in light of

the DOJ’s admission that the two agencies worked

closely together in drafting those guidelines. There-

fore, the Court held that the DOJ’s position was not

entitled to deference.

All four of these cases agree on at least one issue:

In order for the DOJ’s position to be entitled to defer

ence, the DOJ must not have previously held the

position espoused by the Board in its commentary. In

other words, these courts agree that if the Board’s

commentary is imputed upon or attributed to the

DOJ, then the DOJ’s current position is not entitled

to deference. Despite arguments to the contrary by

the DOJ, the Court concludes that this inquiry is

dispositive as well

Che DOJ argues that both the Board’s comment ary at the

time of the notice of the proposed guidelines and at the time of

the final guidelines leave open the possibility that the Board did

not interpret § 4.33.3 as not addressing the issue of lines of sight

over standing spectators. Amicus Brief at 16-19. At the time of

the proposed guidelines, the Board’s reference to “full lines of

sight” could be viewed as its consideration of what technical or

qualitative specifications should govern the requirement of lin

of sight over standing spectators, not whether lines of sight ove:

standing spectators must be provided. /d. Likewise, the Board's

commentary at the time of the final guidelines could be viewed

as its contemplation of the development in the future of detailed

guidelines that contemplate further technical qualitativ:

refinements. /d. The Court is not persuaded by t irvument

Che Board, at the time of the final

ntinued on foll

ruide lis (

] onagc

niOw if Lrcip et

App. 47

The Court agrees wholeheartedly with both the

Third and D.C. Circuits that this is a difficult issue. If

the DOJ explicitly adopted the Board’s commentary,

it would be easy. However, the DOJ did not explicitly

adopt the Board commentary, and the Court is in

stead left with the tortured history of the promulga-

tion of § 4.33.3 set forth above. In the end, the Court

believes that the Third Circuit’s approach in Caruso

represents the most principled analysis of the present

issue. For that reason, the Court adopts the reason

ing and conclusion set forth therein.

In this Court’s view, the most important factor in

reaching the conclusion that the Board’s commentary

must be imputed to the DOJ is the DOJ’s comment

regarding the Board’s actions during the notice-and-

comment period. The DOJ emphasized that the public

was put on notice of the DOJ’s intent to adopt

the guidelines proposed by the Board, with any

changes made by the Board. See 56 Fed. Reg. 35585

The DOJ noted its own “active participation” in the

yublic hearings on the proposed guidelines and “in

f <4 i I

“many commenters recommended that lines of sight be

provided over standing spectators,” stated only that “[t}he issue

of lines of sight over standing spectators will be addressed in

guidelines for recreational facilities.” 56 Fed. Reg. 35440. Had

the Board in any way indicated that it intended to further

address, or to more thoroughly address the issue, the Court

might be inclined to give this argument some weight. The Board

did not. Nor is the Court convinced that the Board’s current

position (as set forth in its 1998 Technical Assistance Manual),

which is in accord with the DOJ’s current position, accuratels

portrays its original interpretation of § 4.33.3

App. 48

preparation of both the proposed and final versions

of” the guidelines. Jd. Further, it noted that the

Board had adequately addressed all comments made

by the public. /d. Finally, the DOJ noted the Board's

“numerous changes” that were made in arriving at

the final guidelines. Jd. In this Court’s view, this

statement amounts to a broad approval of the Board’s

actions, including the Board’s commentary during the

rulemaking process. In light of the DOJ’s public

affirmation of the Board’s commentary at the time it

promulgated § 4.33.3, and in the absence of any

public expressions of contrary intent, the Board's

commentary is fairly attributed to the DOJ. Having

adopted this commentary as its own, the DOJ was not

free to change its interpretation in 1994 without first

going through the notice-and-comment process, which

it concedes it did not.

The Court does not mean {. suggest that a rule

that sports stadiums and other venues where specta-

tors are expected to stand during all or part of a

performance must provide to wheelchair-bound

patrons lines of sight over standing spectators is not

desirable. Indeed, even the Caruso court, whose

reasoning upon which defendant relies, acknowledged

that such a rule “has much to recommend,” a senti-

ment with which this Court certainly agrees. Caruso,

193 F.3d at 737. Were the Court to write on a clean

slate, the Court would be tempted to hold that

§ 4.33.3 requires lines of sight over standing specta-

tors. After all, a law requiring that individuals with

disabilities be able to attend exciting sporting events

App. 49

has httle meaningful effect if those individuals are

deprived of viewing, in the words of the plaintiff here,

the parts they “want to see the most.” Indeed, such a

rule would definitely be in keeping with the purpose

of Title III of the ADA, which is to provide individuals

with disabilities with access to “the full and equal

enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public

accommodation.” 42 U.S.C. § 12182(a).

One argument raised at the hearing on this

matter by defense counsel cannot pass without com-

ment. Defense counsel’s efforts to conflate the position

of a wheelchair-bound quadriplegic with, to use coun-

sel’s phrase, a “height-disadvantaged” person such as

herself, is not persuasive. Counsel’s argument focuses

solely on the height differential between individuals

who use wheelchairs for mobility and ambulatory

individuals; however, “height-disadvantaged” ambu-

latory individuals have options that are not available

to those who must use wheelchairs. Cf. Independent

Living, 982 F.Supp. at 733 (“(Almbulatory patrons

can move around or angle their bodies to obtain a

better view, or stand on their chairs. Small children

may be held aloft by their parents.... While some

ambulatory spectators occasionally have an_ ob-

structed view, that experience is the rule, rather than

the exception, for those who attend Rose Garden

events in a wheelchair. It is no answer to say that

some ambulatory spectators may also have obstructed

sightlines.”). Moreover, the height differential which

counsel references is not nearly as pronounced as that

App. 50

experienced by a person who must sit in a place

where other adults — short and tall alike — may stand

to their full height or may maneuver their bodies to

gain maximum visual access. Compare id. (noting

testimony from a senior project architect that indi-

cated that the average wheelchair-bound spectator’s

view is that of a person who is 42 inches (or three

feet, six inches tall)) with Center for Disease Control

2000 Growth Charts: United States, available at <<http://

www.cdc.gov/nchs/data/nhanes/growthcharts/set3/all.pdf>>

(noting that the median (50th percentile) height for a

five-year-old child in the United States is 42 inches).

Although the Court does not find this particular

argument by counsel to be persuasive, the Court is

constrained by the DOJ’s original interpretation of

§ 4.33.33; that is, the original position of the Board

that § 4.33.3 simply does not address the question of

lines of sight over standing spectators. In light of this

position, the Court’s ruling must be in favor of the

defendant.

E. Ruling on ADA Claim

Having concluded that § 4.33.3 must be inter-

preted as not addressing the issue of lines of sight

over standing spectators, the Court DENIES plain-

tiff’s Motion for Summary Judgment on the ADA

claim and GRANTS defendant’s Motion for Summary

Judgment as to the ADA claim.

App. 51

VI. State Law Claims

As plaintiff’s counsel has conceded in a previous

proceeding, plaintiff's state-law claims are dependent

upon a finding of an ADA violation. See July 29, 2005,

Transcript at 19 (attached to Motion as Ex. D) (“The

state[-Jlaw claims are predicated on the violation of

the federal claims. So if we lose the federal claim, we

lose the state[-Jlaw claim.”). Having found no such

violation as a matter of law, the Court DENIES

plaintiff’s Motion for Summary Judgment as to the

state-law claims and GRANTS defendant’s Motion

for Summary Judgment as to the state-law claims.

VII. Conclusion

As set forth above, the Court DENIES plaintiff’s

Motion for Summary and GRANTS defendant’s

Motion for Summary Judgment. Summary Judgment

is granted in favor of defendant as to all claims.

The Clerk shall close the case

IT IS SO ORDERED.

DATE: 9-8-06.

S Larson

STEPHEN G. LARSON

UNITED STATES

DISTRICT JUDGE

App. 52

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ROBERT MILLER, )

Plaintiff

™ ) Case No. EDCV 01-00434 SGL

)

THE CALIFORNIA ) JUDGMENT

SPEEDWAY ) (Filed Sep. 18, 2006)

CORPORATION,

Defendant. )

In light of the Court’s Order of September 8,

2006, granting summary judgment on all claims in

favor of defendant, the Court enters JUDGMENT in

favor of defendant as to all claims.

IT IS SO ORDERED.

DATE: 9-18-06

/s/ S Larson

STEPHEN G. LARSON

UNITED STATES

DISTRICT JUDGE

App. 53

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MILLER,

See No. 06-56468

Plaintiff-Appellant,

D.C. No. CV-01-00434-SGL

V. Central District of

THE CALIFORNIA California, Riverside

SPEEDWAY ORDER

CORPORATION,

(Filed Sep. 16, 2008)

Defendant-Appellee.

Before: CANBY and BYBEE, Circuit Judges, and

HUNT,* District Judge.

Judge Bybee voted to deny the petition for re-

hearing en banc, and Judges Canby and Hunt rec-

ommended denying the petition for rehearing en

banc. The full court has been advised of the petition

for rehearing en banc and no judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35. Appellee’s petition for rehearing en banc,

filed August 22, 2008, is DENIED.

“ The Honorable Roger L. Hunt, United States District

Court, Distnct of Nevada, sitting by designation

App. 54

5 U.S.C. § 553. Rule Making

*& K 4

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons

subject thereto are named and either personally

served or otherwise have actual notice thereof in

accordance with law. The notice shall include —

(1) a statement of the time, place, and nature of

public rule making proceedings;

(2) reference to the legal authority under which

the rule is proposed; and

(3) either the terms or substance of the pro-

posed rule or a description of the subjects and issues

involved.

Except when notice or hearing is required by statute,

this subsection does not apply —

(A) to interpretative rules, general statements

of policy, or rules of agency organization, procedure,

or practice; or

(B) when the agency for good cause finds (and

incorporates the finding and a brief statement of

reasons therefor in the rules issued) that notice and

public procedure thereon are impracticable, unneces-

sary, or contrary to the public interest.

* *

App. 55

5 U.S.C.§ 551. Definitions

(5) “rule making” means agency process

formulating, amending, or repealing a rule;

x os os

for

App. 56

42 U.S.C. § 12181. Definitions

As used in this title [42 USCS $$ 12181 et seq.]:

(1) Commerce. The term “commerce” means

travel, trade, traffic, commerce, transportation, or

communication —

(A) among the several States;

(B) between any foreign country or any

territory or possession and any State; or

through another State or foreign country

(2) Commercial facilities. The term “commercial

facilities” means facilities —

(A) that are intended for nonresidential

use; and

(B) whose operations will affect commerce.

Such term shall not include railroad locomotives,

railroad freight cars, railroad cabooses, railroad cars

described in section 242 [42 USCS $ 12162] or cov-

ered under this title [42 USCS $$ 12181 et seq.],

railroad rights-of-way, or facilities that are covered or

expressly exempted from coverage under the Fair

Housing Act of 1968 (42 U.S.C. 3601 et seq.).

(3) Demand responsive system. The term “de-

mand responsive system” means any system of pro-

viding transportation of individuals by a vehicle,

other than a system which is a fixed route system.

App. 57

(4) Fixed route system. The term “fixed route

system” means a system of »roviding transportation

of individuals (other than wy aircraft) on which a

vehicle is operated along a prescribed route according

to a fixed schedule.

(5) Over-the-road bus. The term “over-the-road

bus” means a bus characterized by an elevated pas-

senger deck located over a baggage compartment.

(6) Private entity. The term “private entity”

means any entity other than a public entity (as

defined in section 201(1) [42 USCS $§ 12131(D)|.

(7) Public accommodation. The following private

entities are considered public accommodations for

purposes of this title [42 USCS $$ 12181 et seq.], if

the operations of such entities affect commerce --

(A) an inn, hotel, motel, or other place of

lodging, except for an establishment located within a

building that contains not more than five rooms for

rent or hire and that is actually occupied by the

proprietor of such establishment as the residence of

such proprietor;

(B) a restaurant, bar, or other establish-

ment serving food or drink;

hall, stadium, or other place of exhibition or enter-

Lainment;

(D) an auditorium, convention center,

lecture hall, or other place of public gathering;

App. 58

(E) a bakery, grocery store, clothing store,

hardware store, shopping center, or other sales or

rental establishment;

(F) a laundromat, dry-cleaner, bank, barber

shop, beauty shop, travel service, shoe repair service,

funeral parlor, gas station, office of an accountant or

lawyer, pharmacy, insurance office, professional office

of a health care provider, hospital, or other service

establishment;

(G) a terminal, depot, or other station used

for specified public transportation;

(H) a museum, library, gallery, or other

place of public display or collection;

(I) a park, zoo, amusement park, or other

place of recreation;

(J) a nursery, elementary, secondary,

undergraduate, or postgraduate private school, or

other place of education;

(K) a day care center, senior citizen center,

homeless shelter, food bank, adoption agency, or

other social service center establishment: and

(L) agymnasium, health spa, bowling alley,

golf course, or other place of exercise or recreation.

(8) Rail and railroad. The terms “rail” and

“railroad” have the meaning given the term “railroad”

in section 202(e) of the Federal Railroad Safety Act of

1970 (45 U.S.C. 431(e)) [49 USCS $ 20102(1)}.

App. 59

(9) Readily achievable. The term “readily

achievable” means easily accomplishable and able to

be carried out without much difficulty or expense. In

determining whether an action is readily achievable,

factors to be considered include —

(A) the nature and cost of the action needed

under this Act;

(B) the overall financial resources of the

facility or facilities involved in the action; the number

of persons employed at such facility; the effect on

expenses and resources, or the impact otherwise of

such action upon the operation of the facility;

covered entity; the overall size of the business of a

covered entity with respect to the number of its

employees; the number, type, and location of its

facilities; and

(D) the type of operation or operations of

the covered entity, including the composition, struc-

ture, and functions of the workforce of such entity;

the geographic separateness, administrative or fiscal

relationship of the facility or facilities in question to

the covered entity.

(10) Specified public transportation. The term

“specified public transportation” means transporta-

tion by bus, rail, or any other conveyance (other than

by aircraft) that provides the general public with

general or special service (including charter service)

on a regular and continuing basis

App. 60

(11) Vehicle. The term “vehicle” does not in-

clude a rail passenger car, railroad locomotive, rail-

road freight car, railroad caboose, or a railroad car

described in section 242 [42 USCS §$ 12162] or cov-

ered under this title [42 USCS $$ 121817 et seq.].

42 U.S.C. § 12183. New construction and alterations

in public accommodations and commercial facilities

(a) Application of term. Except as provided in sub-

section (b), as applied to public accommodations and

commercial facilities, discrimination for purposes of

section 302(a) [42 USCS §$ 12182(a)] includes —

(1) a failure to design and construct facilities for

first occupancy later than 30 months after the date of

enactment of this Act [enacted July 26, 1990] that are

readily accessible to and usable by individuals with

disabilities, except where an entity can demonstrate

that it is structurally impracticable to meet the

requirements of such subsection in accordance with

standards set forth or incorporated by reference in

regulations issued under this title [42 USCS $$ 12181

et seq.]; and

42 U.S.C. § 12186. Regulations

* ,

(b) Other provisions. Not later than 1 year after the

date of the enactment of this Act [enacted July 26,

App. 61

1990], the Attorney General shall issue regulations in

an accessible format to carry out the provisions of this

title [42 USCS $$ 12181 et seq.] not referred to in

subsection (a) that include standards applicable to

facilities and vehicles covered under section 302 [42

USCS $ 12182].

included in regulations issued under subsections (a)

and (b) shall be consistent with the minimum guide-

lines and requirements issued by the Architectural

and Transportation Barriers Compliance Board in

accordance with section 504 of this Act [42 USCS

§ 12204).

42 U.S.C. § 12206. Technical assistance [Caution: See

prospective amendment note below.]

(3) Technical assistance manuals. Each Federal

agency that has responsibility under paragraph (2)

for implementing this Act shall, as part of its imple-

mentation responsibilities, ensure the availability

and provision of appropriate technical assistance

manuals to individuals or entities with rights or

duties under this Act no later than six months after

App. 62

applicable final regulations are published under titles

I, I, IT, and TV.

App. 63

28 C.F.R. Ch. 1, App. A

* * *

4.33.3* Placement of Wheelchair Locations.

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. They shall

adjoin an accessible route that also serves as a means

of egress in case of emergency. At least one companion

fixed seat shall be provided next to each wheelchair

seating area. When the seating capacity exceeds 300,

wheelchair spaces shall be provided in more than one

location. Readily removable seats may be installed in

wheelchair spaces when the spaces are not required to

accommodate wheelchair users.

28 C.F.R. § 36.406 Standards for new construction

and alterations.

(a) New construction and alterations subject to

this part shall comply with the standards for accessi-

ble design published as appendix A to this part

(ADAAG).

(b) The chart in the appendix to this section

provides guidance to the user in reading appendix A

to this part (ADAAG) together with subparts A

App. 64

through D of this part, when determining require-

ments for a particular facility.

App. 65

56 Fed. Reg. 35,440

+ * *

Comment. The NPRM asked questions regarding

row spacing and lines of sight over standing specta-

tors in sports arenas and other similar assembly

areas. Many of the persons who responded to the

question stated that they have difficulty accessing

mid-row seats in an assembly area. Many comment-

ers also recommended that lines of sight should be

provided over standing spectators.

Response. Building and life safety codes set mini-

mum distances between rows of fixed seats with con-

sideration of the number of seats in a row, the exit aisle

width and arrangement, and the location of exit doors.

Because row spacing is related to these other factors,

the Board does not believe that it is appropriate for the

guidelines to set requirements in this area. However,

information has been included in the appendix at

A4.33.3 on “continental” seating which allows a greater

number of seats per row with a commensurate in-

crease in row spacing and exit doors. This alternative

increases ease of access to mid-row seats for people

who walk with difficulty and facilitates emergency

egress for all people. Builders and designers are en-

couraged to consider “continental” seating along with

other factors when planning seating in assembly areas.

The issue of lines of sight over standing spectators

will be addressed in guidelines for recreational facilities.

App. 66

56 Fed. Reg. 35,514

* * *

4.33.3* Placement of Wheelchair Locations.

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. They shall

adjoin an accessible route that also serves as a means

of egress in case of emergency. At least one companion

fixed seat shall be provided next to each wheelchair

seating area. When the seating capacity exceeds 300,

wheelchair spaces shall be provided in more than one

location. Readily removable seats may be installed in

wheelchair spaces when the spaces are not required to

accommodate wheelchair users.

56 Fed. Reg. 35,586

*k *

All these comments were considered in the same

manner as other comments on the Department’s

proposed rule and, in the Department’s view, have

been addressed adequately in the final ADAAG.

* *K

App. 67

57 Fed. Reg. 60,612

ARCHITECTURAL AND TRANSPORTATION

BARRIERS COMPLIANCE BOARD

36 CFR Part 1191

[Docket No. 92-2]

RIN 3014 AA12

Americans With Disabilities Act (ADA) Acces-

sibility Guidelines for Buildings and Facili-

ties; State and Local Government Facilities

AGENCY: Architectural and Transportation Barriers

Compliance Board.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Architectural and Transportation

Barriers Compliance Board is issuing proposed guide-

lines to provide additional guidance to the Depart-

ment of Justice in establishing accessibility standards

for new construction and alterations of State and

local government facilities covered by title II of the

Americans with Disabilities Act (ADA) of 1990. The

guidelines will ensure that newly constructed and

altered State and local government facilities are

readily accessible to and usable by individuals with

disabilities in terms of architecture and design, and

communication. The standards established by the

Department of Justice must be consistent with and

may incorporate the guidelines.

DATES: Comments should be received by March 22,

1993. Comments received after this date will be

App. 68

considered to the extent practicable. Where possible,

the comments should reference specific sections in the

proposed guidelines. The Board will hold public

hearings on the proposed guidelines on the dates and

times listed under SUPPLEMENTARY INFOR-

MATION below.

57 Fed. Reg. 60,618

Assembly Areas

During the initial rulemaking, the Board re-

quested information on lines of sight at seating

locations for persons who use wheelchairs. See 56 FR

2296 (January 22, 1991). The Board received a num-

ber of comments which recommended that ADAAG

4.33 (Assembly Areas) be expanded to address other

issues such as companion seating, integration and

dispersal, and transfer seating. An overwhelming

majority of responses favored including a provision

requiring lines of sight over standing spectators in

sports arenas and other similar assembly areas. A

few commenters opposed such a provision because it

would be either unenforceable, add significant cost or

reduce seating capacity. Some commenters felt that

an entry level or front row seating location was

acceptable if companion seating was available for

more than one person.

App. 69

After careful review of comments and of State

accessibility codes and standards, the Board modified

the scoping provisions in the final ADAAG for wheel-

chair seating, added requirements for transfer seats

and companion seating, and clarified the dispersal

requirement. See 56 FR 35408 (July 26, 1991). Addi-

tionally, the Board felt it was essential to conduct

further research on assembly areas with respect to

other recommendations received in response to the

rulemaking. The Board is currently sponsoring a

research project on accessibility in assembly areas

which will provide additional information for future

revisions of ADAAG. The Board intends to address

the issue of lines of sight over standing spectators in

the guidelines for recreational facilities which will be

proposed at a future date.

Question 17: The Board is seeking comments on

the design issues associated with providing inte-

grated and dispersed accessible seating locations with

a clear line of sight over standing spectators in are-

nas, stadiums or other sports facilities. Clearly, not

all seats in sports facilities afford clear lines of sight

over standing spectators. Tall persons, guard railings

or other fixed elements in the facility may block one’s

view of the playing field. However, since persons with

disabilities have fewer choices of seating locations,

should all the accessible seating locations be required

to have lines of sight over standing spectators? Would

such a requirement compromise the requirement for

dispersed wheelchair seating by providing seating in

fewer locations? If maximum dispersal of accessible

App. 70

seating locations is provided, what percentage of such

locations can be provided with a clear line of sight

over standing spectators? The Board encourages

commenters to provide cost information and examples

(including drawings, pictures or slides) of sports

facilities where the accessible seating locations are

dispersed, integrated and provide clear lines of sight

over standing spectators. Additionally, the Board is

seeking comments on how the dispersal requirement

is achieved in arenas or stadiums where fixed seating

is on different levels within a tier having steps. How

should dispersal be defined in such facilities? If the

same definition of dispersal cannot be applied to all

types of facilities, is there a way to categorize differ-

ent facilities and apply a specific dispersal require-

ment to each category? What are the design issues

associated with providing accessible seating locations

within one tier on different levels?

* So

App. 71

64 Fed. Reg. 62,248

ARCHITECTURAL AND TRANSPORTATION

BARRIERS COMPLIANCE BOARD

36 CFR Part 1190 and 1191

[Docket No. 99-1]

RIN 3014-AA20

Americans With Disabilities Act (ADA) Accessibil-

ity Guidelines for Buildings and Facilities; Archi-

tectural Barriers Act (ABA) Accessibility Guide-

lines

AGENCY: Architectural and Transportation Barriers

Compliance Board.

ACTION: Notice of Proposed Rulemaking.

SUMMARY: The Architectural and Transportation

Barriers Compliance Board (Access Board) is propos-

ing to revise and update its accessibility guidelines

for buildings and facilities covered by the Americans

with Disabilities Act of 1990 (ADA) and the Architec-

tural Barriers Act of 1968 (ABA). These guidelines

cover new construction and alterations and serve as

the basis for enforceable standards issued by other

Federal agencies. As a result of this revision and

update, the guidelines for the ADA ana ABA are

consolidated in one Code of Federal Regulations part.

The guidelines for the ABA also cover buildings and

facilities leased by Federal agencies. The Department

of Justice and the Department of Transportation are

responsible for issuing standards based on the Access

App. 72

Board’s guidelines under the ADA. ABA standards

are issued by the Department of Defense, General

Services Administration, the Department of Housing

and Urban Development, and the U.S. Postal Service.

64 Fed. Reg. 62,501-62,502

802.9 Lines of Sight. Spectators seated in wheel-

chairs shall be provided lines of sight comparable to

those provided to other spectators.

802.9.1 Comparable Lines of Sight for

Seated Spectators. Where spectators are

expected to remain seated during events,

spectators seated in wheelchairs shall be

provided with lines of sight to the perform-

ance area or playing field comparable to that

provided to spectators in the seating area in

closest proximity to the location of the wheel-

chair spaces, but not in the same row.

App. 73

Figure 802.9.1

App. 74

802.9.2 Comparable Lines of Sight Over

Standing Spectators. Where people will be

expected to stand at their seats during

events, wheelchair spaces shall be located so

that they will provide people seated in

wheelchairs with lines of sight of the per-

formance area or playing surface over stand-

ing spectators comparable to that provided to

standing spectators in the seating area in

closest proximity to the wheelchair spaces,

but not in the same row.

App. 75

Figure 802.9.2

App. 76

69 Fed. Reg. 44,392-44,393

Figure 802.2.1.1

Lines of Sight Over the

Heads of Seated Spectators

App. 77

802.2.1.2 Lines of Sight Between Heads. Where

spectators are provided lines of sight over the shoul-

ders and between the heads of spectators seated in

the first row in front of their seats, spectators seated

in wheelchair spaces shall be afforded lines of sight

over the shoulders and between the heads of seated

spectators in the first row in front of wheelchair

spaces.

Figure 802.2.1.2

Lines of Sight Between the

Heads of Seated Spectators

App. 78

802.2.2 Lines of Sight Over Standing Spectators.

Where spectators are expected to stand during

events, spectators in wheelchair spaces shall be

afforded lines of sight complying with 802.2.2.

802.2.2.1 Lines of Sight Over Heads.

Where standing spectators are provided lines

of sight over the heads of spectators standing

in the first row in front of their seats, specta-

tors seated in wheelchair spaces shall be af-

forded lines of sight over the heads of

standing spectators in the first row in front

of wheelchair spaces.

Figure 802.2.2.1

Lines of Sight Over the

Heads of Standing Spectators

App. 79

802.2.2.2 Lines of Sight Between Heads. Where

standing spectators are provided lines of sight over

the shoulders and between the heads of spectators

standing in the first row in front of their seats, spec-

tators seated in wheelchair spaces shall be afforded

lines of sight over the shoulders and between the

heads of standing spectators in the first row in front

of wheelchair spaces.

Figure 802.2.2.2

Lines of Sight Between the

Heads of Standing Spectators

App. 80

73 Fed. Reg. 34,508-34,509

DEPARTMENT OF JUSTICE

28 CFR Part 36

[CRT Docket No. 106; AG Order No. 2968-2008]

RIN 1190-AA44

Nondiscrimination on the Basis of Disability

by Public Accommodations and in Commercial

Facilities

AGENCY: Department of Justice, Civil Rights

Division.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Justice (Depart-

ment) is issuing this notice of proposed rulemaking

(NPRM) in order to: Adopt enforceable accessibility

standards under the Americans with Disabilities Act

of 1990 (ADA) that are “consistent with the minimum

guidelines and requirements issued by the Architec-

tural and Transportation Barriers Compliance Board”

(Access Board); and perform periodic reviews of any

rule judged to have a significant economic impact on

a substantial number of small entities, and a regula-

tory assessment of the costs and benefits of any

significant regulatory action as required by the

Regulatory Flexibility Act, as amended by the Small

Business Regulatory Enforcement Fairness Act of

1996 (SBREFA).

App. 81

In this NPRM, the Department proposes to adopt

Parts I and III of the Americans With Disabilities Act

and Architectural Barriers Act Accessibility Guide-

lines (2004 ADAAG), which were published by the

Architectural and Transportation Barriers and Com-

pliance Board (Access Board) on July 23, 2004. Prior

to its adoption by the Department, the 2004 ADAAG

is effective only as guidance to the Department; it has

no legal effect on the public until the Department

issues a final rule adopting the revised ADA Stan-

dards (proposed standards).

Concurrently with the publication of this NPRM,

the Department is publishing an NPRM to amend its

title I] regulation, which covers state and local gov-

ernment entities, in order to adopt the 2004 ADAAG

as its proposed standards for title II entities, to make

amendments to the title IT regulation for consistency

with title III, and to make amendments that reflect

the collective experience of 16 years of enforcement of

the ADA.

App. 82

Americans with Disabilities Act

Title III Technical Assistance

Manual 1994 Supplement

IfI-7.5180 Assembly areas.

[Insert the following text before the sentence begin-

ning, “Finally, wheelchair seating... .” p. 64.]

In addition to requiring companion seating

and dispersion of wheelchair locations,

ADAAG requires that wheelchair locations

provide people with disabilities lines of sight

comparable to those for members of the gen-

eral public. Thus, in assembly areas where

spectators can be expected to stand during

the event or show being viewed, the wheel-

chair locations must provide lines of sight

over spectators who stand. This can be ac-

complished in many ways, including placing

wheelchair locations at the front of a seating

section, or by providing sufficient additional

elevation for wheelchair locations placed at

the rear of seating sections to allow those

spectators to see over the spectators who

stand in front of them.

* *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.