FILED

NOT FOR PUBLICATION

DEC 11 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATE JOHNSTON; JERRY BERGMAN; No. 18-35667

MARIA C. “TINA” CHILDRESS,

individually and on behalf of all others D.C. No. 2:18-cv-00011-MJP similarly situated; WASHINGTON

STATE COMMUNICATION ACCESS

PROJECT, a Washington corporation; MEMORANDUM*

ASSOCIATION OF LATE DEAFENED

ADULTS; DEAN OLSON,

Plaintiffs-Appellants,

v.

REGAL ENTERTAINMENT GROUP;

AMC ENTERTAINMENT INC.;

CINEMARK HOLDINGS INC.,

Defendants-Appellees,

and

AC JV, LLC, DBA Fathom Events,

Defendant.

Appeal from the United States District Court for the Western District of Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Marsha J. Pechman, District Judge, Presiding

Argued and Submitted June 5, 2019 Seattle, Washington

Before: RAWLINSON, BEA, and NGUYEN, Circuit Judges.

Appellants challenge the district court’s dismissal of their complaint alleging

violations of the Americans with Disabilities Act (ADA) and the Washington Law

Against Discrimination (WLAD). Appellants represent individuals who have

hearing loss. They specifically assert that Regal Entertainment Group, AMC

Entertainment Inc., and Cinemark Holdings, Inc. failed to provide closed

captioning for content such as classic movies, opera, and stage performances

distributed by co-defendant Fathom Events (Fathom). Fathom does not produce or

distribute its content with closed captioning.

We review de novo dismissal of a complaint, see Arizona ex rel. Goddard v.

Harkins Amusement Enters., Inc., 603 F.3d 666, 669 (9th Cir. 2010), as well as the

court’s statutory interpretation. See ASARCO LLC v. Celanese Chem. Co., 792

F.3d 1203, 1208 (9th Cir. 2015).

Title III of the ADA requires places of public accommodation, such as

movie theaters, to “take such steps as may be necessary to ensure that no individual

with a disability is excluded, denied services, segregated or otherwise treated

2 differently than other individuals because of the absence of auxiliary aids and

services.” 42 U.S.C. § 12182(b)(2)(A)(iii).

Congress authorized the Attorney General to promulgate regulations

implementing Title III. See id. at § 12186(b). Pursuant to that authority, the

Department of Justice (DOJ) adopted a regulation specifying that “a public

accommodation shall ensure that its movie theater auditoriums provide closed

movie captioning and audio description whenever they exhibit a digital movie that

is distributed with such features.” 28 C.F.R. § 36.303(g)(2).

Appellants contend that the district court erred in deferring to this regulation

because the statute unambiguously requires movie theaters to provide closed

captioning as an “auxiliary aid and service.”

Federal courts defer to an agency’s interpretation or construction of a statute

1) when the statute is “silent or ambiguous” regarding “the precise question at

issue,” and 2) when the agency’s interpretation “is based on a permissible

construction of the statute.” Chevron U.S.A., Inc. v. Nat’l Res. Defense Counsel,

467 U.S. 837, 842-43 (1984). The statutory provision defining “auxiliary aids and

services,” 42 U.S.C. § 12103(1), is silent as to precisely how theaters are to

provide captioning services. See Baldwin v. United States, 921 F.3d 836, 842 (9th

Cir. 2019) (explaining that when a statute is silent, Congress has not directly

3 spoken to the precise question at issue). We have previously relied on DOJ

regulations as reasonable interpretations of the ADA requirement to provide

auxiliary aids and services. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898,

904-05 (9th Cir. 2019) (relying on DOJ regulations to interpret the auxiliary aid

provision of the ADA); see also Harkins, 603 F.3d at 670, 672-74 (turning to

movie-captioning regulation to interpret the same provision of the ADA).

Accordingly, the district court committed no error in deferring to the regulation.

See Harkins, 603 F.3d at 672-73.

Finally, the district court did not err in dismissing Appellants’ state law

claims. Because Washington precedent does not indicate that the application of

state law by Washington courts would result in a different outcome, Washington

courts would adhere to the outcome reached under federal precedent. See Weyer v.

Twentieth Century Fox Film Corp., 198 F.3d 1104, 1118 (9th Cir. 2000); see also

Washington State Commc’n Access Project v. Regal Cinemas, Inc., 293 P.3d 413,

424 (Wash. Ct. App. 2013), which provides that the “auxiliary aid” provision of

the ADA is the functional equivalent of the WLAD’s reasonable accommodation

requirement.

AFFIRMED.

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