Appeal from the United States District Court for the Central District of California, D.C. No. CV-99-01034-FMC, Florence-Marie Cooper, District Judge, Presiding.
The opinion of the court was delivered by: Wardlaw, Circuit Judge
Argued and Submitted November 7, 2007 -- Pasadena, California
Before: Kim McLane Wardlaw, Carlos T. Bea, and N. Randy Smith, Circuit Judges.
WARDLAW, K., delivered the opinion of the Court as to Parts I, II.A, II.B, and III, in which BEA, C., and SMITH, N. R., joined. SMITH, N. R., delivered the opinion of the Court as to Part II.C, in which BEA, C., joined. WARDLAW, K., filed a dissenting opinion as to Part II.C.
In this action the United States Department of Justice seeks to enforce Title III of the Americans with Disabilities Act ("ADA"), 48 U.S.C. §§ 12181-89, so as to require AMC Entertainment, Inc. and American Multi-Cinema, Inc. (collectively, "AMC") to provide "full and equal enjoyment" to disabled moviegoers in ninety-six stadium-style multiplexes located across the nation. Liability is settled, as our circuit has definitively determined that the pertinent guideline drafted by the Architectural and Transportation Barriers Board (the "Access Board") and adopted by the Attorney General as part of the "Standards for Accessible Design," 28 C.F.R. pt. 36, app. A, § 4.33.3 ("§ 4.33.3"), requires that theaters provide "a viewing angle for wheelchair seating within the range of angles offered to the general public in the stadium-style seats." Or. Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1133 (9th Cir. 2003), cert. denied, 542 U.S. 937 (2004). Correctly anticipating our holding in Oregon Paralyzed Veterans, the district court held that AMC's existing facilities violate § 4.33.3's light of sight requirement, awarded summary judgment to the government, and subsequently issued a comprehensive remedial order. United States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092 (C.D. Cal. 2002). The "Order Re: Line of Sight Remedies" sets forth a series of detailed injunctive orders specifying compliance with § 4.33.3 for the ninety-six affected AMC multiplexes containing 1,993 auditoria throughout the nation. AMC timely appeals.
Because the injunction requires modifications to multiplexes that were designed or built before the government gave fair notice of its interpretation of § 4.33.3, the injunction violates due process-and to that extent, its issuance was an abuse of discretion. A two-judge majority of this panel also holds that the district court abused its discretion in neglecting comity concerns pertaining to the Fifth Circuit's existing, less stringent interpretation of § 4.33.3, while the dissenting judge would affirm the scope of the nationwide injunction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for further proceedings.
In the mid-1990s, stadium seating in movie theaters revolutionized the way Americans viewed movies. Rather than cramming seats together on a sloped floor, causing movie-goers to be at the mercy of a taller patron choosing the seat in front of them, the staggered elevation of stadium seating "virtually suspend[ed] the moviegoer in front of the wall-to-wall screen." Along with the other major theater companies, AMC constructed scores of theaters nationwide employing the new layout. Promoting its theaters, AMC invited the public to "Experience the Difference." The Department of Justice claimed that one group could not: the disabled.
The first iteration of stadium-seating theaters, initially constructed by AMC in 1995, posed a particular problem for wheelchair-bound patrons. These complexes offered a hybrid of traditional sloped floor seating closest to the screen and sta- dium seating accessible by stairs. Moviegoers would enter the theater in the front, right under the screen. Once entering, patrons would first have the option (rarely, if ever, taken) of sitting in the few rows of traditional sloped-floor seating closest to the screen. Or if they preferred (and were able), they could bypass these first rows and climb stairs to choose a seat within the stadium-seating section of the theater. The impossibility of the latter option relegated disabled patrons to the least desirable seats in the rows closest to the screen.
Complaints from wheelchair-bound customers began immediately. The mother of a disabled viewer complained to AMC that their seats in the second row "made it impossible to see this movie at such a close range." A disabled Missourian explained in more detail his experience while sitting in the limited wheelchair seating offered by AMC:
[My] eagerness quickly turned to anger and then despair as I found myself in a brand new theater where, from a viewing and comfort standpoint, I was worse off than ever before. While your theater seats appear very comfortable and positioned to maximize the theater goer's [sic] view of the screen, my wheel-chair has a rigid frame and straight back. From my vantage point on the far right side of the second row from the screen I was forced to endure two hours of neck wrenching discomfort as I struggled to find a comfortable way to view the entire screen. . . . If not the least desirable location in the theater, the wheel-chair area must be a close second.
AMC apparently responded to customer complaints and began to modify its design for future theaters. Later iterations of the multiplex permitted entry in the mid-section of the auditorium, allowing for wheelchair seating in the center of the cinema. By 2001, AMC offered full stadium seating for all patrons in its newly constructed theaters. Nevertheless, the initial spurt of theater construction specked communities with theaters restricting wheelchair seating to the very front of the auditorium.
In response, the DOJ, along with numerous private plaintiffs, brought a series of nationwide suits against various theater companies alleging that the theaters violated Title III of the ADA, 42 U.S.C. § 12182, by placing wheelchair seating in the front rows of their new stadium complexes.
Title III of the ADA generally provides 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). To flesh out the details of this general rule, Congress charged the Attorney General with the task of promulgating regulations clarifying how public accommodations must meet these statutory obligations. 42 U.S.C. § 12186(b). These regulations were to be consistent with the minimum guidelines issued by the Access Board. 42 U.S.C. § 12186(c). Twenty-five individuals comprise the Access Board, thirteen appointed by the president, and twelve representing government departments or agencies. 29 U.S.C. § 792(a)(1). In January 1991, the Access Board proposed accessibility guidelines and provided a notice and comment period to evaluate them. 56 Fed. Reg. 2296 (Jan. 22, 1991). Later that year, the Access Board issued its final ADA Accessibility Guidelines. 56 Fed. Reg. 35,408 (July 26, 1991). The Attorney General adopted these guidelines as the "Standards for Accessible Design." 28 C.F.R. pt. 36, app. A.
Section 4.33.3 of the Standards addresses wheelchair seating in assembly areas. It reads:
Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to pro- vide 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 wheel-chair 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 (some emphasis removed). Because this regulation pre-dated stadium seating in movie theaters by nearly four years, it did not expressly address whether "lines of sight comparable to those for members of the general public" meant that wheelchair seating must provide a similar viewing angle for disabled patrons. It was not until 1999 that the Access Board publicly noted that the DOJ interpreted this provision to mandate placing wheelchair seating areas in the stadium-seating section that "provide viewing angles that are equivalent to or better than the viewing angles . . . provided by 50 percent of the seats in the auditorium." 64 Fed. Reg. 62,248, 62,278 (Nov. 16, 1999). In 1999, the Access Board concluded that it "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 theaters. The Board is also considering whether to provide additional guidance on determining whether lines of sight are 'comparable' in assembly areas . . . ." Id. As of this date, the Access Board has failed to do so.
C. The Litigation History of § 4.33.3
While "lines of sight" was a phrase long familiar to parties involved in the movie theater industry, its precise meaning shifted depending upon the particular context and who was using it. Internal correspondence within the industry featured recognition that, at times, "lines of sight" meant viewing angle to the screen. At other times, the movie industry understood "comparable lines of sight" to require only unobstructed views of the screen. Indeed, before the D.C. Circuit, the government insisted that "there was no uniformly understood construction of the language prior to the time it was picked up by the Board and the Department [of Justice]." Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 583 (D.C. Cir. 1997).
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 § 4.33.3, litigants turned to courts throughout the country to determine the regulation's breadth. Plagued by an opaque regulation and minimal legislative history, however, the various circuits did not reach a uniform understanding as to what exactly § 4.33.3 required of theater companies building stadium-seating complexes.
i. The Unobstructed View Interpretation
The first circuits to parse § 4.33.3 did not contemplate the comparable viewing angles interpretation currently adopted by the government. Rather, plaintiffs in the initial round of cases urged the courts to understand the provision as requiring that public accommodations provide disabled spectators only with an unobstructed view to a stage or screen. Unlike the later advocated comparable viewing angles interpretation, the Access Board had anticipated the issue of unobstructed views. The Access Board had requested comment "on whether full lines of sight over standing spectators . . . should be required."
56 Fed. Reg. 2296, 2314 (Jan. 22, 1991). After the comment period, however, the Access Board did not expressly address the issue of unobstructed views in the language of § 4.33.3.
From the opening salvos of litigation, courts admitted their confusion as to what exactly "lines of sight" meant. In Caruso v. Blockbuster-Sony Music Entm't Ctr. at Waterfront, 968 F. Supp. 210 (D. N.J. 1997), rev'd in part, 193 F.3d 730 (3d Cir. 1999), plaintiffs brought suit against a concert hall for failure to provide wheelchair bound patrons an unobstructed view to the stage. The district court, when asked to assess whether § 4.33.3 required this unobstructed view, expressed its frustration that the regulation, even when read in conjunction with secondary materials, "suffers from a vagueness not cured by interpretive manuals or an enforcement history which would put meat on the bones of the concept of enhanced sight lines." Id. at 216. Absent further legislative direction, the district court could not read the language of § 4.33.3 to impose a requirement that disabled viewers enjoy an enhanced line of sight.
Writing for the Third Circuit, then-Judge Alito agreed with the district court's estimation "that the 'lines of sight' language is ambiguous." Caruso v. Blockbuster-Sony Music Entertainment Centre at Waterfront, 193 F.3d 730, 733 (3d Cir. 1999). The regulation's ambiguity, in Judge Alito's view, allowed for two conflicting understandings (neither of which the government presently advocates) of what § 4.33.3 mandates: 1) dispersal of seating for disabled viewers throughout the auditorium; or 2) vertically enhanced lines of sight allowing wheelchair-bound patrons to view the stage over standing audience members. After reviewing the notice and comment period for discussion on the unobstructed view theory, the Third Circuit affirmed the district court, concluding that § 4.33.3 "does not reach the issue of sightlines over standing spectators." Id. at 736.
This placed the Third Circuit slightly out of line with the D.C. Circuit's opinion in Paralyzed Veterans of America v. D.C. Arena L.P., which had affirmed the district court's reading of § 4.33.3 to require that some wheelchair seating provide an unobstructed view over standing spectators at Washington Wizards and Capitals games. 117 F.3d at 580. While the circuits reached different conclusions as to § 4.33.3's exact requirements, the D.C. Circuit and the Third Circuit did agree that the regulation was ...