Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc.

*1127 Opinion by Judge BETTY B. FLETCHER; Dissent by Judge KLEINFELD.

This appeal concerns the validity of the Department of Justice’s (“DOJ”) interpretation of its own regulation requiring that movie theaters, pursuant to Title III of the ADA, provide comparable lines of sight for wheelchair-bound and non-wheelchair-bound moviegoers. Three individual, disabled plaintiffs and the Oregon Paralyzed Veterans of America (“OPVA”) sued two companies that own and operate movie theaters in Oregon. The theaters at issue located all wheelchair-accessible seats in the front rows, where the vertical viewing angle was significantly sharper than in the rest of the theater.

The plaintiffs raised three claims. First, they alleged that the “stadium seating” plans in six of the defendants’ movie theaters violate Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182 , and DOJ’s regulations promulgated thereunder. The plaintiffs also claimed that the seating plans violate Oregon’s public accommodations statute, Or.Rev. Stat. § 659.425(8), and claimed negligence in the design, construction, and operation of the stadium-riser theaters. They sought declaratory and injunctive…

dissenting.

I respectfully dissent.

The majority sets up a conflict with the Fifth Circuit, 1 adopts an unreasonable construction of the applicable regulation, and puts theater owners in a position of impossible uncertainty as to what they must do to comply with the law.

Evidently the Justice Department has been unable to sell its litigation position within the executive branch, so it has come to the Ninth Circuit. The statute requires that “[standards included in regulations ... shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board,” 2 called the “Access Board.” The Access Board published a Notice of Proposed Rulemaking in 1999 that it was considering promulgating new regulations for “stadium-style motion picture theaters” because of the frequent *1134 placement of wheelchair spaces in the first few rows.

The Access Board notes that “DOJ has asserted in attempting to settle particular cases” that the usual wheelchair placement should be changed to give wheelchair patrons sight lines “equivalent to or better than the viewing angles provided by 50 percent of the seats in the auditorium,” by…