United States of America v. Cinemark USA, Inc.

*The Honorable Gordon J. Quist, United States District Judge for the
W estern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0395P (6th Cir.)
File Name: 03a0395p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
CINEMARK USA, INC.,
Defendant-Appellee.
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No. 02-3100
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 99-00705—Donald C. Nugent, District Judge.
Argued: June 20, 2003
Decided and Filed: November 6, 2003
Before: DAUGHTREY and ROGERS, Circuit Judges;
QUIST, District Judge.*
_________________
COUNSEL
ARGUED: Gregory B. Friel, UNITED STATES
DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION,
2 United States v. Cinemark USA, Inc. No. 02-3100
1The Department of Justice’s enabling regulations under the
Americans with Disabilities Act are the Am ericans with Disabilities Act
Accessibility G uideline s, com mon ly referred to as the “AD AAG.”
APPELLATE SECTION, Washington, D.C., for Appellant.
Laura M. Franze, AKIN, GUMP, STRAUSS, HAUER &
FELD, L.L.P., Dallas, Texas, for Appellee. ON BRIEF:
Gregory B. Friel, Jessica Dunsay Silver, UNITED STATES
DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION,
APPELLATE SECTION, Washington, D.C., for Appellant.
Laura M. Franze, M. Brett Burns, AKIN, GUMP, STRAUSS,
HAUER & FELD, L.L.P., Dallas, Texas, for Appellee. David
K. Monroe, GALLAND KHARASCH GREENBERG
FELLMAN & SWIRSKY P.C., Washington, D.C., Jeffrey T.
Kubes, CRISHAM & KUBES, Chicago, Illinois, for Amici
Curiae.
_________________
OPINION
_________________
ROGERS, Circuit Judge. The district court in this case
granted summary judgment against the United States in its
suit against Cinemark USA, Inc. (Cinemark) under Title III of
the Americans with Disabilities Act (ADA). The government
alleged that Cinemark has violated the ADA by designing,
constructing, and operating stadium-style movie theaters in a
manner that discriminates against wheelchair-using patrons.
Specifically, the government argued that Cinemark was not
complying with the applicable Justice Department regulation,
ADAAG1 § 4.33.3, which requires that “[w]heelchair areas
shall be . . . provided so as to provide people with disabilities
. . . lines of sight comparable to those for members of the
general public.” The district court held as a matter of law that
Cinemark was in compliance because its theaters provided
wheelchair patrons with unobstructed views of the movie
screen from wheelchair seating located amid or adjacent to

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No. 02-3100 United States v. Cinemark USA, Inc. 3
2This grade is often greater than 5%.
3Cinemark stresses that this latter detail is of prime importance in the
event of an em ergency.
seating for the general public. The government correctly
argues that the “line of sight” aspect of its regulation does not
require merely that wheelchair users be provided unobstructed
views of the movie screen, but instead requires in addition
that the unobstructed views be “comparable” to those of other
patrons. Accordingly, we REVERSE the judgment of the
district court and REMAND for further proceedings
consistent with this opinion.
BACKGROUND
1. Cinemark’s Stadium-style Theaters
Cinemark constructs, owns, and operates movie theaters
throughout the United States. In 1995, Cinemark began
constructing “stadium-style” movie theaters. Stadium-style
theaters have a seating configuration that rises at a relatively
steep grade,2 typically making stadium-style sections of these
theaters impossible to navigate by wheelchair-using patrons.
In Cinemark’s stadium-style theaters, wheelchair placements
are generally located on a flat portion of the auditorium
approximately one-third of the way back from the screen.
This placement is in the third row of fixed seating, with two
rows of general public seating in front, and near the entrances
and exits to the theaters.3 Wheelchair placements are also
located on a flat portion in the rear of the auditorium in
Cinemark’s theaters that seat 300 or more people. These
placements are accessed by elevators. Over 80 percent of the
general seating in Cinemark’s stadium-style theaters is
located in the stadium section.
The government alleges that because of the placement of
the wheelchair-accessible locations, wheelchair users are
4 United States v. Cinemark USA, Inc. No. 02-3100
4Also referred to as “Stand ard 4 .33.3 ” or “§ 4.33 .3.”
5The language of the statute reads: “failure to design and construct
facilities for first occupancy later than 30 months after the date of
enactment o f this Act [enacted July 2 6, 19 90].”
sometimes forced to look up at the screen at sharp angles,
resulting in severe discomfort and pain. According to the
government, these and similar problems have made
Cinemark’s stadium-style theaters effectively unusable by
persons confined to wheelchairs.
2. Title III of the ADA and the Justice Department’s
Regulation, ADAAG § 4.33.34
Disability-based discrimination in public accommodations
is prohibited under Title III of the Americans with Disabilities
Act, 42 U.S.C. § 12182. Title III generally requires that
public accommodations designed and constructed “for first
occupancy” after January 26, 1993,5 be “readily accessible to
and usable by individuals with disabilities.” 42 U.S.C.
§ 12183(a)(1). Cinemark’s stadium-style movie theaters were
built starting in 1995 and are therefore subject to Title III’s
requirements for new construction.
Congress gave the Attorney General the responsibility to
promulgate regulations implementing the provisions of Title
III of the ADA. See 42 U.S.C. § 12186(b). These regulations
must be consistent with the minimum guidelines issued by the
Architectural and Transportation Barriers Compliance Board
(the “Access Board”). See 42 U.S.C. § 12186(c). In 1991,
the Department of Justice (the “DOJ”) issued regulations,
known as the Standards for Accessible Design, which
incorporated the Americans with Disabilities Act
Accessibility Guidelines (“ADAAG”) promulgated by the
Access Board. See 56 Fed. Reg. 35,546 (July 26, 1991); 28
C.F.R. 36.406(a); 28 C.F.R. Pt. 36, App. A. The ADAAG

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No. 02-3100 United States v. Cinemark USA, Inc. 5
were promulgated under the notice-and-comment procedures
of the Administrative Procedure Act, 5 U.S.C. § 553 (1998).
This appeal concerns one of DOJ’s regulations under Title
III of the ADA, known variously as Standard 4.33.3 or
ADAAG § 4.33.3. This regulation provides that in “assembly
areas,”
Wheelchair areas shall be an integral part of any fixed
seating plan and shall be provided so as to provide
people with physical disabilities a choice of admission
prices and lines of sight comparable to those for
members of the general public. 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.
EXCEPTION: Accessible viewing positions may be
clustered for bleachers, balconies, and other areas having
sight lines that require slopes of greater than 5 percent.
Equivalent accessible viewing positions may be located
on levels having accessible egress.
28 C.F.R. Pt. 36, App. A, § 4.33.3 (emphasis added).
3. The DOJ’s Certification of Local Accessibility Standards
The Department of Justice is authorized under Title III of
the ADA to certify that state or local accessibility standards
meet or exceed the ADA Standards for Accessible Design.
The DOJ explained the advantages of this process in a
publication on its website entitled “Certification of State and
Local Building Codes”:
6 United States v. Cinemark USA, Inc. No. 02-3100
Code certification facilitates voluntary compliance by
putting ADA requirements and local requirements into a
single, readily available document. It allows builders to
rely on their local inspection and approval processes, and
it ensures that accessibility will be routinely considered
in those processes. It allows builders to be assured of
compliance through inspections early in the construction
process, when mistakes can be corrected relatively easily
and cost-effectively. It eliminates conflicts between local
requirements and ADA requirements. Finally, by
incorporating ADA-equivalent accessibility provisions
into the local code, certification gives building officials
a significant role in enforcing the substance of the ADA.
J.A. at 154. Certification serves as “rebuttable evidence” that
a state law or local ordinance meets or exceeds the minimum
requirements of the ADA in a later federal enforcement
proceeding, see 42 U.S.C. § 12188(b)(1)(A)(ii), and
compliance with a certified code is “rebuttable evidence” of
compliance with Title III of the ADA.
The State of Texas has promulgated building codes related
to requirements under Title III of the ADA, known as the
Texas Accessibility Standards (“TAS”). The TAS were
certified as meeting or exceeding federal accessibility
requirements by the DOJ on September 23, 1996. Following
this certification, the DOJ issued a press release which stated:
Builders in Texas who follow state building codes can be
assured that they are complying with federal guidelines
as well, now that the Justice Department has certified
Texas codes as being in compliance with the Americans
with Disabilities Act . . . .
“Everyone in the state of Texas—builders, architects,
business owners, and the general public—will benefit
from Texas’ new accessibility standards” . . . .
“Certification makes it easier to comply with the law.”

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No. 02-3100 United States v. Cinemark USA, Inc. 7
. . . Builders will benefit from this new process because
it ensures that construction which meets state codes
meets the requirements of the ADA. Builders will also
have additional legal protection in ADA lawsuits if they
build in compliance with the certified code.
J.A. at 153. The TAS includes a “Section 4.33.3,” which is
modeled after the language of ADAAG § 4.33.3. Cinemark
received certification of its compliance with TAS accessibility
requirements for many of its stadium-style theaters built in
Texas between 1995 and 1998. Cinemark relied upon this
certification of compliance when designing and building its
theaters in Texas and throughout the United States.
4. The Access Board’s New Notice of Proposed Rulemaking
On November 16, 1999, the Access Board published a new
Notice of Proposed Rulemaking in the Federal Register for
public notice and comment. See 64 Fed. Reg. 62248, 62278
(1999). The notice proposed modifications to ADAAG
§ 4.33.3 not relevant here, but in a preamble to the proposed
revision, the Access Board noted that it was “aware” of DOJ
attempts to enforce DOJ’s interpretation of ADAAG § 4.33.3
through litigation, and stated that the Board was “considering
whether to include specific requirements in the final rule that
are consistent with DOJ's interpretation of 4.33.3 to
stadium-style movie theaters.” Id. A new final rule has not
yet been adopted.
5. Procedural History
On March 24, 1999, the government sued Cinemark in the
United States District Court for the Northern District of Ohio,
alleging that Cinemark had engaged in a pattern or practice of
discrimination in violation of Title III of the ADA, 42 U.S.C.
12181 et seq., and its implementing regulations. Specifically,
the complaint alleged that many of Cinemark’s stadium-style
theaters throughout the United States failed to comply with
ADAAG § 4.33.3, 28 C.F.R. Pt. 36, App. A, § 4.33.3. The
8 United States v. Cinemark USA, Inc. No. 02-3100
government requested a declaratory judgment stating that
Cinemark violated Title III of the ADA by designing,
constructing, and operating stadium-style movie theaters in a
manner that discriminates against wheelchair-using patrons.
The government further requested that: (1) Cinemark be
ordered to bring its present stadium-style movie theaters into
compliance with Title III; (2) Cinemark be enjoined from
designing or constructing additional stadium-style theaters
unless such theaters are in compliance with Title III;
(3) Cinemark be ordered to provide remedial relief, including
compensatory damages, to all individuals with disabilities
who were discriminated against by Cinemark in violation of
Title III; and (4) Cinemark be assessed a civil penalty.
In December of 2000, Cinemark moved for summary
judgment on all claims asserted by the government,
contending that all of its stadium-style theaters complied with
Title III of the ADA and ADAAG § 4.33.3. The government
also moved for partial summary judgment on whether some
of Cinemark’s stadium-style theaters were in violation of
ADAAG § 4.33.3. On November 19, 2001, the district court
granted Cinemark’s motion for summary judgment, denied
the government’s cross-motion, and entered final judgment
for Cinemark. The district court held that, as a matter of law,
Cinemark’s stadium-style movie theaters complied with
ADAAG § 4.33.3 because they provided patrons that use
wheelchairs with unobstructed views of the movie screen
from wheelchair seating located amidst or adjacent to seating
for the general public, and this is all that was required under
the plain language of that regulation.
ANALYSIS
1. Standard of Review
We review a district court’s decision to grant summary
judgment de novo. Thomas v. United States, 213 F.3d 927,
929 (6th Cir. 2000). The moving party has the burden of
establishing that there are no material factual disputes, and

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No. 02-3100 United States v. Cinemark USA, Inc. 9
that it is entitled to judgment as a matter of law. Id. There
are no factual disputes in the present appeal; therefore,
resolution of this case depends on our determination of what
is required under the plain meaning of ADAAG § 4.33.3 and
whether the DOJ’s interpretation of ADAAG § 4.33.3 is
reasonable and entitled to deference as a matter of law.
Because the plain meaning of ADAAG § 4.33.3 requires more
than merely unobstructed views of the movie screen, we
reverse the judgment of the district court and remand for
further proceedings consistent with this opinion. The
alternative grounds asserted by Cinemark, moreover, do not
require affirmance of the district court’s judgment.
2. ADAAG § 4.33.3 Does Not Require Merely That
Wheelchair-using Patrons Have Unobstructed Views of
the Movie Screen
The regulation at issue appears plainly to require that
wheelchair patrons have something more than a merely
unobstructed view in seating adjacent to other patrons. While
we agree that “line of sight” can be defined as unobstructed
view, the regulation requires more than “lines of sight” for
wheelchair patrons. It requires comparable lines of sight.
While the word “comparable” can mean “capable of being
compared,” such an interpretation would give the word no
substantive content in this context. The other—obviously
intended—meaning of “comparable” is “similar.” Thus, in
ordinary parlance, if the prices at one store or restaurant are
ten times those of a competitor, one would not say that the
prices are “comparable,” even though they can obviously be
compared. See MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 234 (10th ed. 1997) (definitions for
“comparable” include “similar, like” as in “fabrics of
comparable quality”).
The regulation thus is plain in its requirement that the
wheelchair lines of sight be similar, or at least roughly
similar, to those of other patrons. The criteria for evaluating
similarity, moreover, while not explicit in the regulation,
10 United States v. Cinemark USA, Inc. No. 02-3100
6Treatises cited by the government support the contention that within
the field of theater design, “lines of sight” are compared on the basis of
viewing angles. See George C. Izenour, THEATER DE S IG N 3-4, 284
(1977); Harold Burris-M eyer & Edward C. Cole, T H E A T E R S A N D
AU D IT OR IU M S 68-69 (2d ed. 1964). Cinemark argues in response that the
DOJ has waived its right to rely on such treatises because it did not
present them to the district court below. To the extent that the treatises
reflect the meaning of the term “com parable lines of sight,” we may refer
to them just as appropriately as we would refer, say, to a dictiona ry that
was not cited below. The treatises give some suppo rt to the go vernm ent’s
contended meaning of “comparable lines of sight,” and we do not rely
upon them for anything mo re than that.
doubtless include viewing angle.6 Several district courts have
come to precisely this conclusion. See United States v. Hoyts
Cinemas Corp., 256 F.Supp.2d 73, 88 (D.Mass. 2003)
(relying upon federal district court decisions in New York and
California to conclude that “viewing angles are truly the only
operative way of measuring whether the line of sight offered
by a seat is ‘comparable’ to those offered to the general
public”). And the Ninth Circuit has recently held that it was
reasonable for the DOJ to interpret “comparable line of sight”
to encompass factors such as viewing angle. Oregon
Paralyzed Veterans of America v. Regal Cinemas, 339 F.3d
1126, 1132-33 (9th Cir. 2003).
Moreover, as argued by the government, interpreting the
“lines of sight” portion of ADAAG § 4.33.3 to require that
wheelchair users be provided with comparable viewing
angles, not just an unobstructed view of the movie screen,
furthers the central goals of Title III of the ADA. The ADA
fundamentally requires that “[n]o individual shall be
discriminated against 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). The thrust of that
mandate leads us to conclude that the term “lines of sight
comparable to those for members of the general public”
requires that wheelchair users be afforded comparable
viewing angles to those provided for the general public. Only

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No. 02-3100 United States v. Cinemark USA, Inc. 11
then will wheelchair users have “equal enjoyment” with the
general public. Under the district court’s interpretation, a
wheelchair-using patron could be relegated to the worst seats
in the theater (assuming it was still among some seats for the
general public), so long as the disabled patron still had an
“unobstructed view” of the screen. This does not comport
with the “full and equal enjoyment” language of Title III, nor
does it seem likely that this is all the DOJ and the Access
Board were attempting to guarantee for disabled persons
when they formulated ADAAG § 4.33.3. A more reasonable
interpretation of ADAAG § 4.33.3, given the purpose of Title
III, is that the DOJ and the Access Board intended to assure
disabled patrons seats of “comparable” quality to those
provided for members of the general public.
Cinemark urges us to uphold the district court’s very
different understanding of the “line of sight” regulation. That
understanding is based on the Fifth Circuit’s holding in Lara
v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000). The
Lara court rejected the contention that “the phrase ‘lines of
sight comparable’ requires anything more than that theaters
provide wheelchair-bound patrons with unobstructed views of
the screen.” 207 F.3d at 789. Accordingly, the Fifth Circuit
held that in the absence of a more specific regulation,
ADAAG § 4.33.3 “does not require movie theaters to provide
disabled patrons with the same viewing angles available to
the majority of non-disabled patrons.” Id.
The arguments relied upon by the Fifth Circuit in Lara are,
however, in the end not persuasive. First, the Lara court
noted that “questions regarding ‘viewing angle’ did not arise
until well after the DOJ promulgated section 4.33.3.” 207
F.3d at 788. The Lara court found it significant that the
Access Board, in proposing to modify § 4.33.3, proposed to
define “line of sight” problems in the context of obstructed
views, and recognized that “additional language would be
necessary to codify the DOJ’s litigating position.” Id. The
Fifth Circuit quoted the Access Board as follows:
12 United States v. Cinemark USA, Inc. No. 02-3100
DOJ has asserted in attempting to settle particular cases
that wheelchair seating locations [in stadium-style
theaters] must: (1) be placed within the stadium-style
section of the theater . . .; (2) provide viewing angles that
are equivalent or better than the viewing angles . . .
provided by 50 percent of the seats in the auditorium,
counting all seats of any type sold in that auditorium; and
(3) provide a view of the screen, in terms of lack of
obstruction . . . that is in the top 50 percent of all seats of
any type sold in the auditorium. The Board is considering
whether to include specific requirements in the final rule
that are consistent with the DOJ's interpretation of 4.33.3
to stadium-style movie theaters. 64 Fed. Reg. at 62278.
See Lara, 207 F.3d at 788. Immediately preceding the
language cited by the Fifth Circuit, however, the Access
Board stated:
As stadium-style theaters are currently designed, patrons
using wheelchair spaces are often relegated to a few rows
of each auditorium, in the traditional sloped floor area
near the screen. Due to the size and proximity of the
screen, as well as other factors related to stadium-style
design, patrons using wheelchair spaces are required to
tilt their heads back at uncomfortable angles and to
constantly move their heads from side to side to view the
screen. They are afforded inferior lines of sight to the
screen.
64 Fed. Reg. at 62278. This passage notes that wheelchair-
using patrons are afforded “inferior lines of sight” because the
close proximity to the screen of the wheelchair placements
causes their viewing experience to be uncomfortable. It
demonstrates that lines of sight have a qualitative aspect: lines
of sight can be “inferior,” not simply obstructed or
unobstructed.
In addition, the language cited by the Fifth Circuit does not
definitively support the conclusion that the Access Board

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No. 02-3100 United States v. Cinemark USA, Inc. 13
acknowledged that additional language will be necessary to
codify the DOJ’s litigating position. The Access Board
explained that “[t]he Board is considering whether to include
specific requirements in the final rule that are consistent with
DOJ's interpretation of 4.33.3 to stadium-style movie
theaters.” 64 Fed. Reg. 62278 (emphasis added). The
inclusion of the word “specific” implies that although the
Board might think that the present language of ADAAG
§ 4.33.3 is broad enough to include the DOJ’s interpretation,
it is considering whether to make these requirements explicit
in the final rule. The language of the Access Board with
regard to the proposed modification of ADAAG § 4.33.3 at
least equally supports an interpretation of that section that
includes a qualitative element in the comparable “lines of
sight” analysis.
Second, the Fifth Circuit noted that although “the phrase
‘lines of sight’ lacked a clear meaning in the ADA context, it
is clear that in a number of other contexts, the phrase meant
unobstructed view.” Id. at 788. The Fifth Circuit cited three
other, unrelated regulations that use “line of sight” to mean
unobstructed view, including a Federal Communications
Commission regulation requiring that antennae have line of
sight, without obstruction, of the communities that they serve.
Id. The fallacy of this argument is that ADAAG § 4.33.3
does not just require that wheelchair patrons have “lines of
sight.” They must be afforded comparable lines of sight.
That requirement is perfectly consistent with interpreting
“line of sight” to mean unobstructed view. The holding of the
Fifth Circuit in Lara effectively ignored the phrase
“comparable to those for members of the general public,” and
in so doing failed to take sufficiently into account the purpose
of Title III of the ADA. The phrase, in the Fifth Circuit’s
interpretation, would be reduced to meaning simply a
“similarly unobstructed” view.” See Meineker v. Hoyts
Cinemas Corp., 216 F. Supp. 2d 14, 18 (N.D.N.Y. 2002),
vacated and remanded on other grounds, 2003 U.S. App.
LEXIS 13411 (2d Cir. 2003). This does not give sufficient
meaning to the regulation.
14 United States v. Cinemark USA, Inc. No. 02-3100
Since Lara was decided, the Ninth Circuit and several
district courts have rejected its reasoning. See Or. Paralyzed
Veterans of Am. v. Regal Cinemas, 339 F.3d 1126, 1132-33
(9th Cir. 2003) (reversing Or. Paralyzed Veterans of Am. v.
Regal Cinemas, Inc., 142 F. Supp. 2d 1293 (D. Or. 2001);
United States v. Hoyts Cinemas Corp., 256 F.Supp.2d 73, 84-
89 (D. Mass. 2003); Meineker, 216 F. Supp. 2d at 17, United
States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092, 1110-12
(C.D. Calif. 2002).
Our conclusion that the plain meaning of “lines of sight
comparable to those for members of the general public”
requires more points of similarity than merely an
unobstructed view is further supported by DOJ’s
interpretation of ADAAG § 4.33.3. As a general matter,
deference should be given to an agency’s interpretation of a
regulation when the agency has been given responsibility to
issue regulations under the statute in question, to explain the
responsibilities of those concerned under the statute, and to
enforce the statute in court. See Bragdon v. Abbott, 524 U.S.
624, 646 (1998). The DOJ has these responsibilities in this
context. See 42 U.S.C. § 12186(b); 42 U.S.C.
§ 12188(b)(1)(B). When an agency is interpreting its own
regulations, even greater deference is due to the agency’s
interpretation. See United States v. Midwest Suspension &
Brake, 49 F.3d 1197, 1203 (6th Cir. 1995). Therefore, the
DOJ’s interpretation should be upheld unless it is “plainly
erroneous or inconsistent with the regulation.” Auer v.
Robbins, 519 U.S. 452, 461 (1997). To be sure, we are not
required to defer to the DOJ’s interpretation if an “alternative
reading is compelled by the regulation's plain language or by
other indications of the [DOJ’s] intent at the time of the
regulation's promulgation.” Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v.
Jenkins, 485 U.S. 415, 430 (1988)). The Supreme Court has
also indicated that deference to an agency’s “convenient
litigation position” would be “entirely inappropriate” where
the agency’s position is contrary to the view advocated by the
agency in past cases and is not “reasoned and consistent.”

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No. 02-3100 United States v. Cinemark USA, Inc. 15
7Cinemark, citing Colby v. J.C. Penney Co., 811 F.2d 1 119 (7th Cir.
1987), also asserts that this court should give deference to the decision of
the Lara court and follow that holding because to do o therwise would
subject Cinemark to inconsistent legal obligations. In Colby the Seventh
Circuit stated:
A posture somewhere in between some deference and comp lete
deference is prop er when cases in different circuits challenge the
same practice of the same defendant, particularly if different
outcomes would place the defendant under inconsistent
obligations . . . . [T]he fact that [a previous] case involved the
identical issue in a lawsuit brought against the identical
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-213
(1988); see Auer, 519 U.S. at 462 (contrasting an agency’s
“post hoc rationalization” with a “fair and considered
judgment”) (internal quotation marks omitted). The DOJ
position in this case is neither plainly erroneous nor
inconsistent with the regulation. Nor is it inconsistent with
views advocated by DOJ in earlier cases.
The DOJ argues that the “lines of sight comparable”
portion of ADAAG § 4.33.3 includes a consideration of the
quality of the viewing angle of the movie screen. This is
consistent with our conclusion that the plain meaning of
ADAAG § 4.33.3 requires that there be greater points of
commonality between lines of sight than that the lines of sight
share an unobstructed view; in order to be comparable,
viewing angles must also be taken into account to some
degree. Since this DOJ interpretation is consistent with the
plain meaning of the regulation, it is entitled to deference.
See Auer, 519 U.S. at 461.
We leave it to the district court on remand to determine the
extent to which lines of sight must be similar for wheelchair
patrons in stadium-style theaters, but hold that the plain
meaning of “lines of sight comparable to those for members
of the general public” clearly requires more points of
similarity than merely an unobstructed view. In short, we
disagree with the reasoning of the Fifth Circuit in Lara,7 and
16 United States v. Cinemark USA, Inc. No. 02-3100
defendant by a plaintiff having the same interests as [the plaintiff
in the current case] is a reason for the district court in the present
case to have given serious considera tion to the [previous]
decision—b ut not a reason to invoke stare decisis and give the
decision complete deference automatically, as the [lower] court
appears to have done . . . . W here different outcomes would
place the defendant under inconsistent legal duties, the case for
the second co urt's not going into conflict with the first is
particularly strong. A conflict would place the defendant in an
impo ssible position unless the Supreme Court agreed to hear the
case . . . .
Id. at 1124. As this quote makes clear, automatic deference to the
decision of another circuit is not required, although there m ay be strong
reasons for deference when to decide o therwise would subject a party to
inconsistent legal duties. However, the “inconsistent legal obligations”
that Cinem ark will suffer from in this case do not appear to be
insurmountable: any chain of stores that extends across state lines is
subject to the different building codes of the vario us states in which it
chooses to build a store (and probably to a variety of different local
ordinances at each location as well). This is not such an “impossible
position” as defendant would lead us to believe.
In any event, this consideration is insufficient to require us to change
our interpretation of ADAAG § 4.33 .3, particularly no w that the Ninth
Circuit has already created a split in the circuits on that legal issue in Or.
Paralyzed Veterans of Am. v. Regal Cinemas.
therefore conclude that the district court erred in holding that
ADAAG § 4.33.3 merely required unobstructed views of the
movie screen. We therefore reverse the judgment of the
district court and remand for further proceedings in
accordance with this opinion.
3. The Alternative Grounds Advanced by Cinemark on
Which to Affirm the Judgment of the District Court are
Unpersuasive.
Cinemark advances several alternative grounds that it
argues require us to affirm the judgment of the district court.
These grounds are (1) that the DOJ’s interpretation of
ADAAG § 4.33.3 amounts to a new substantive rule in

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No. 02-3100 United States v. Cinemark USA, Inc. 17
circumvention of the Administrative Procedure Act’s (the
“APA’s”) notice and comment requirements; (2) that the
government should be estopped from arguing for its
interpretation of ADAAG § 4.33.3 because it approved the
TAS, which Cinemark’s theaters were built in compliance
with; (3) that the government is precluded under the doctrine
of collateral estoppel from re-litigating issues that it
previously litigated unsuccessfully against Cinemark in Lara;
and (4) that at the very least summary judgment should be
given to Cinemark with regard to its theaters in the Fifth
Circuit. None of these arguments provide alternative support
for the district court’s grant of summary judgment.
A. The APA’s Notice and Comment Requirements
Cinemark asserts that the DOJ’s interpretation of ADAAG
§ 4.33.3 mandates new substantive requirements without
undergoing notice and comment as required by the
Administrative Procedure Act, 5 U.S.C. § 553. According to
Cinemark, the DOJ’s attempt to introduce a new quantitative
viewing angles requirement imposes new obligations on
theater construction, obligations that were not required under
the plain meaning of ADAAG § 4.33.3, and therefore this
requirement should have been implemented through the
APA’s notice-and-comment procedures.
This argument runs against a long-settled principle of
federal administrative law. An agency’s enforcement of a
general statutory or regulatory term against a regulated party
cannot be defeated on the ground that the agency has failed to
promulgate a more specific regulation. See SEC v. Chenery
Corp., 332 U.S. 194, 201 (1947); NLRB v. Bell Aerospace
Co., 416 U.S. 267 (1974). “‘The choice made between
proceeding by general rule or by individual, ad hoc litigation
is one that lies primarily in the informed discretion of the
18 United States v. Cinemark USA, Inc. No. 02-3100
8Mo reover, even if the government’s litigating position in the instant
enforcement action were co nsidered a “rule” subject to the APA, the
exception to the notice-and-comment requirement for interpretive rules
would apply. 5 U.S.C. § 553 (b)(A). We have recognized the distinction
between interp retive and substantive (or legislative) rules as follows:
A legislative rule is one that “has the force of law,” while an
interpretive rule is “merely a clarification or explanation of an
existing statute or rule” and is “‘issued by an agency to advise
the public of the agency's construction of the statutes and rules
which it administers.’” Guardian Fed. Sav. & Loan v. Fed. Sav.
& Loan Ins. Corp ., 191 U.S. App. D.C. 135, 589 F.2d 658,
664-65 (D.C .Cir. 1978) (quoting U.S. Department of Justice,
Attorney General's Manual on the Administrative Procedure Act
30 n.3 (1947 )). Legislative rules “grant rights, impose
obligations, or produce other significant effects on private
interests,” while interpretive rules do not “foreclose alternative
courses of action or conclusively affect rights of private parties.”
Ohio D ep’t of Human Servs. v. Dept. of HHS, 862 F.2d 128 8, 12 33 (6th
Cir. 1988). T he governme nt here is not even arguably relying upon the
effect of its litigating position as independently substantively binding.
Instead, it is arguing on the basis of its interpretation of ADAAG § 4.33.3.
administrative agency.’” Id. at 293 (quoting SEC v. Chenery,
332 U.S. at 203).8
In the instant case the enforcement action is either
warranted by the statute and the regulation or it is not. Since
the action is so warranted, then (under Chenery and Bell
Aerospace) nothing in the APA requires additional
rulemaking. But even if the action were not warranted, then
enforcement should be denied on that ground alone, and any
APA notice-and-comment argument would be surplusage.
B. Estoppel
Cinemark also asserts that the government should be
estopped from asserting a “new” interpretation of ADAAG
§ 4.33.3 that invalidates approvals given pursuant to TAS,
given that TAS was certified by the DOJ as “meeting or
exceeding” the requirements of the ADA and Cinemark relied

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No. 02-3100 United States v. Cinemark USA, Inc. 19
9In its amicus brief, the A merican Institute of Architects (the “AIA”)
argues that reliance on state or local standards such as TAS that have been
certified by the DOJ should shield a builder from liability. Its stated
motivation in making this argument is to shield architects from liability
that could result if the DOJ later finds that a theater is not in compliance
with the ADA and the theater owner brings suit against the architect. The
AIA argues that the certification process is a sensible way in which
architects can determine in advance which designs are in compliance with
the AD A, given the lack of clarity in the current regulations. According
to the AIA, it has no interest in what the substantive requirements of the
ADA are; it simply wishes to have a process by which architects can make
certain that their plans comply with the ADA. Although we do not
question the wisdom of such a process, we have no power to create such
a process where the legislature and the executive have not taken sufficient
steps to do so. Contrary to the AIA’s assertion, the D OJ has expressly
stated that certification is not a process on which architects can
com pletely rely.
upon these approvals.9 Of course, with the possible exception
of “affirmative misconduct,” equitable estoppel does not run
against the government. E.g., Schweiker v. Hanson, 450 U.S.
785 (1981). On the other hand, due process concerns may
warrant denial of enforcement of an agency determination
when conduct previously approved by a regulatory agency is
retroactively branded as a statutory violation. As Judge
Friendly colorfully expressed in the labor relations context:
Although courts have not generally balked at allowing
administrative agencies to apply a rule newly fashioned
in an adjudicative proceeding to past conduct, a decision
branding as “unfair” conduct stamped “fair” at the time
a party acted, raises judicial hackles considerably more
than [for instance, imposing a more severe remedy for
conduct already prohibited]. And the hackles bristle still
more when a financial penalty is assessed for action that
might well have been avoided if the agency’s changed
disposition had been earlier made known, or might even
have been taken in express reliance on the standard
previously established.
20 United States v. Cinemark USA, Inc. No. 02-3100
NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir.
1966) (citations omitted). Cinemark’s reliance on TAS and
the government’s statements with respect to the state building
code certification process weigh strongly in favor of making
any relief that the district court grants the government on
remand apply only on a prospective basis. We do not go so
far as to hold that any relief must be prospective to comport
with due process, but note that, given the following facts,
prospective relief will often be most appropriate.
The DOJ stated in numerous publications that approval
given pursuant to state or local ordinances such as TAS
constituted “rebuttable evidence” that the building was in
compliance with the ADA. See 42 U.S.C. 12188(b)(1)(A)(ii);
J.A. at 154. Even in the DOJ’s press release announcing
certification for TAS, the DOJ stated that “[b]uilders will also
have additional legal protection in ADA lawsuits if they build
in compliance with the certified code.” J.A. at 153. The
word “additional” is consistent with the other statements
issued by the DOJ that compliance with TAS constitutes
“rebuttable evidence” that the theater was in compliance with
the ADA. This is not incontrovertible evidence; instead, it
gives a presumption in favor of the builder, but that
presumption may be overcome.
Because the DOJ’s statements said that the certification of
the state or local building ordinances was not something upon
which the builder could completely rely, the district court
should not be altogether barred from ordering some kind of
remedial measures for existing facilities if the facts warrant
such relief. The DOJ’s statements also imply, however, that
a cinema builder should be able to rely—at least to some
degree—on the approval of their building plans by state or
local inspectors that were certified by the DOJ. The phrases
“rebuttable evidence”and “additional legal protection”
indicate that a builder and the owner should have some
measure of protection from an enforcement action by the
government. The government has assured us that any
remedial measures they will request on remand will take into

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No. 02-3100 United States v. Cinemark USA, Inc. 21
10At oral argument, the attorney from the DOJ stated that “I want to
make very clear to the court, we have emphasized repeatedly the United
States is not— has no t and is no t going to argue, for example, that the
entire interior of the theater be gutted or torn down. We are going to
work with the defendants to come up with a reasonable app roach.”
In response to a question from the court as to “the earliest date that
the government . . . let the theater designers, owners, builders know that
the government was taking the position that lines of sight included angles
of viewing,” DOJ counsel responded, “as far as a widely published
doc ument, it was the Lara brief filed in a district court in Texas in July of
199 8.”
DOJ counsel also acknowledged that there will be hard cases in
which reasonable peo ple will disagree about whether a wheelchair
position is comparable to where most people sit. DOJ counsel stated that
in those situations, it is appropriate for a district judge to take
into account notice and due process concerns in deciding
whether there were any rem edy. But what I’m saying is just
because there are cases in some situations does not mean you
can’t order relief for situations where there’s a clear violation
where they are all in the front row.
DOJ counsel further emphasized that “we’re not going to ask for an
extreme remedy, because what has been suggested is that we’re talking
about gutting these theaters, and we understand as a practical matter once
theaters are built, even though we believe some remedy is required, if in
fact it’s just—would essentially eliminate half the seats as [opposing
counsel] would put in a ramp— we’re not going to propose that as a
remedy.”
In response to a question from the court regarding whether
wheelchair seating would have to be placed in the middle of the stadium
seating instead of in the front of the stadium, perhaps thereby requiring an
elevator to be put in, DOJ counsel responded: “where you have an
elevated stadium section, certainly I think getting the wheelchair up to the
first row of the stadium section, not the traditional style, would
dram atically improve the experiences for people in wheelchairs.” DOJ
counsel subsequently indicated that “[f]or the typical stadium-style theater
account the cost and feasibility that implementation of the
measures would require, and that it would “work with
[Cinemark] to come up with a reasonable approach.”10
22 United States v. Cinemark USA, Inc. No. 02-3100
that we’ve seen, if the wheelchair space was up on the first row of that
elevated sec tion, I think, as a rem edial m atter, we would be satisfied.”
Our holding in this case assumes that the DO J will stand by these
representations.
Limited remedial measures such as those proposed by the
DOJ at oral argument would fulfill the ADAAG § 4.33.3
requirement that wheelchair placements have “lines of sight
comparable to those for members of the general public,” but
would also comport with due process by allowing Cinemark
to rely on the approval of the TAS where that reliance was
reasonable in light of ADAAG § 4.33.3. In short, in
fashioning any remedy the district court, as a court of equity,
can take into account previous advice and representations by
the government upon which Cinemark or this court
reasonably relied.
C. Collateral Estoppel
Collateral estoppel does not bar the government from
bringing this action against Cinemark. Cinemark contends
that the government is precluded under the doctrine of
collateral estoppel from relitigating issues against Cinemark
that it and others previously litigated unsuccessfully against
Cinemark in Lara. The Sixth Circuit has established a
four-part test for determining whether and when collateral
estoppel bars relitigation of an issue:
1) the precise issue raised in the present case must have
been raised and actually litigated in the prior proceeding;
2) determination of the issue must have been necessary
to the outcome of the prior proceeding;
3) the prior proceeding must have resulted in a final
judgment on the merits; and

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No. 02-3100 United States v. Cinemark USA, Inc. 23
11The Supreme Co urt in Montana noted that it was undisputed that
the United States exercised control over the earlier litigation in which it
had been an amicus. 440 U .S. at 155. In particular, the government had
stipulated that it had:
(1) required the [earlier] lawsuit to be filed;
(2) reviewed and approved the comp laint;
(3) paid the attorneys’ fees and costs;
(4) directed the appeal from State D istrict Court to the Mo ntana
Supreme Court;
(5) appeared and submitted a brief as amicus in the Montana Supreme
Court;
(6) directed the filing of a no tice of appeal to [the Sup reme] Court;
and
(7) effectuated [the named party’s] abandonment of that appeal on
advice of the Solicito r General.
Id.
4) the party against whom estoppel is sought must have
had a full and fair opportunity to litigate the issue in the
prior proceeding.
Aircraft Braking Sys. Corp. v. Local 856, Int'l Union, 97 F.3d
155, 161 (6th Cir. 1996). The first three parts of this test are
not contested in the present appeal. The government does
contest the fourth prong, however, asserting that its role as an
amicus curiae in Lara was not sufficient to satisfy this test.
As a general matter, amicus participation does not trigger
collateral estoppel. See United States v. Michigan, 940 F.2d
143, 165 (6th Cir. 1991). Nevertheless, the Supreme Court
has found that in some extraordinary cases a party may be
barred by collateral estoppel for its earlier role as an amicus
curiae. See Montana v. United States, 440 U.S. 147 (1979).
In that case the government went beyond merely filing an
amicus brief, but also “totally financed and controlled” the
litigation. United States v. Mendoza, 464 U.S. 154, 159 n.5
(1984).11
24 United States v. Cinemark USA, Inc. No. 02-3100
Cinemark asserts that the government’s actions in this case
amount to the extraordinary circumstances discussed in
Montana. Specifically, Cinemark asserts that the government
went beyond the role of neutral friend of the court by
asserting a new substantive claim, by introducing new
evidence, by filing a second brief, by submitting responses in
opposition to Cinemark’s motions, and by taking part in oral
arguments before both the district court and the Fifth Circuit.
The government, in response, contends that it did not assert
a claim against Cinemark, nor did its attaching a report to its
amicus brief constitute the submission of new evidence. It
further argues that in its opposition to Cinemark’s motion to
compel discovery from the DOJ, it emphasized that its role as
a non-party and as amicus was limited to providing the court
with the Department of Justice’s interpretation of its own
regulations. Finally, the government notes that it opposed
Cinemark’s motion for a scheduling order amendment that
would have permitted Cinemark to seek to add the DOJ as a
party.
Although the government’s actions in Lara might have
been more than that of a typical amicus curiae, they are still
a far cry from having “totally financed and controlled” the
litigation. Mendoza, 464 U.S. at 159 n.5. The government
was therefore not collaterally estopped in this case.
D. Summary Judgment for Cinemark’s Theaters that are
Within the Fifth Circuit
Finally, Cinemark argues that the government’s assertion
of claims with a national scope ignores that Lara is
controlling authority in the Fifth Circuit and that the
government cannot ask the Sixth Circuit to overturn precedent
as applied to theaters within the Fifth Circuit’s jurisdiction.
Cinemark therefore urges this court to affirm the district
court’s decision granting summary judgment as to all of
Cinemark’s stadium-style theaters that are within the
jurisdiction of the Fifth Circuit.

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No. 02-3100 United States v. Cinemark USA, Inc. 25
This pertains to the scope of relief, and therefore is a matter
for the district court to decide consistent with the principles
of comity. The government has stated in its brief that it will
not make any demands with regard to Cinemark’s theaters
that are within the Fifth Circuit until such time as the law
might change within that circuit. Therefore, we need not
address this issue at the present time.
CONCLUSION
Because the district court erred in holding that ADAAG
§ 4.33.3 requires only that theaters provide disabled patrons
with unobstructed views of the screen and failed to give
meaning to the word “comparable” in ADAAG § 4.33.3, we
REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.

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