United States v. Hoyts Cinemas Corp.

United States Court of Appeals
For the First Circuit

Nos. 03-1646, 03-1787, 03-1808

UNITED STATES OF AMERICA,

Plaintiff, Appellee/Cross-Appellant,

v.

HOYTS CINEMAS CORPORATION; NATIONAL AMUSEMENTS, INC.,

Defendants, Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.

James R. Carroll with whom David S. Clancy, Christopher S.
Fortier and Skadden, Arps, Slate, Meagher & Flom LLP were on brief
for National Amusements, Inc.
Michael J. Malone with whom Patricia A. Griffin, Leslie J.
Arnold and King & Spalding LLP were on brief for Hoyts Cinemas
Corporation.
David K. Monroe, Steven John Fellman, and Galland, Kharasch,
Greenberg, Fellman & Swirsky, P.C. on brief for National
Association of Theatre Owners, Inc., Amicus Curiae.
Gregory B. Friel, Department of Justice, Civil Rights
Division, Appellate Section, with whom R. Alexander Acosta,
Assistant Attorney General, Michael J. Sullivan, United States
Attorney, Michael J. Pineault, Assistant United States Attorney,
and Jessica Dunsay Silver, Department of Justice, Civil Rights
Division, Appellate Section, were on brief for the United States.

August 20, 2004
 BOUDIN, Chief Judge. This case comes to us on appeal

from summary judgment, in an enforcement action brought by the

United States under Title III of the Americans with Disabilities

Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189 (2000), granting

relief against two movie-theater companies. At issue is the

placement of wheelchair spaces in their "stadium-style" movie

theaters. Similar cases have divided the circuits on the

interpretation and application of a longstanding regulation

designed to implement the ADA's accessibility requirements for

movie theaters, concert halls, and like venues.

The ADA was enacted to remove barriers to equal

participation by the disabled in community life. See 42 U.S.C. §

12101. The statute contains provisions, both general and specific,

that apply to the design and construction of movie theaters and

other facilities of public accommodation. Relying heavily upon the

concept of "discrimination," the statute aims to assure a

substantial measure of equality and integration for the disabled

who use such facilities.1 The provisions describing the overall

1
Section 302(a) of the ADA, 42 U.S.C. § 12182(a), prohibits
discrimination against disabled persons in "the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation." Section 302(b)(1) mandates that the disabled not
be denied "the opportunity . . . to participate in or benefit from"
goods, services, facilities, privileges, advantages, and
accommodations, id. § 12182(b)(1)(A)(i), or be afforded a benefit
"not equal to that afforded other individuals," id. §
12182(b)(1)(A)(ii); that such benefits not be "different or
separate from" those provided to other individuals (unless equality

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"prohibition of discrimination" are cast in quite general terms

(e.g., "full and equal enjoyment," "most integrated setting

appropriate to the needs of the individual"). Id. § 12182(a)-(b).

Other provisions, also generally phrased, govern new construction

and alteration.2

To provide guidance for those who must comply, Congress

created a multi-layered scheme. An existing government entity--the

Architectural and Transportation Barriers Compliance Board, widely

referred to as the "Access Board"--was directed to create new

minimum guidelines (supplementing pre-ADA accessibility guidelines)

within nine months of the ADA's enactment. 42 U.S.C. § 12204. The

Access Board has representatives from numerous government agencies,

including the Justice Department, and presumably has much

experience with architectural issues. 29 U.S.C. § 792 (2000).

The statute further required the Attorney General within

one year to promulgate regulations of his own consistent with the

so requires), id. § 12182(b)(1)(A)(iii); and that benefits be
provided "in the most integrated setting appropriate to the needs
of the individual," id. § 12182(b)(1)(B).

2
Governing "new construction" is section 303(a)(1), in which
Congress defined unlawful discrimination to include "a failure to
design and construct facilities for first occupancy [after January
26, 1993], that are readily accessible to and usable by individuals
with disabilities," unless "structurally impracticable." 42 U.S.C.
§ 12183(a)(1). A sister provision describes parallel accessibility
obligations accompanying voluntary alterations to existing
facilities, to the "maximum extent feasible," in the altered areas.
Id. § 12183(a)(2).

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minimum guidelines issued by the Access Board. 42 U.S.C. §

12186(b)-(c). The Justice Department was also directed to provide

technical assistance to the public in coordination with the Access

Board, including in the form of technical assistance manuals. Id.

§ 12206(a)-(c). After overlapping notice-and-comment periods, the

Access Board adopted the required minimum guidelines and, on the

same day, the Justice Department adopted them as ADA regulations

without change.3

One of the regulations--which is the focus of this case--

is known as standard 4.33.3 and prescribes the placement of

wheelchair spaces in newly constructed "assembly areas" set for

first occupancy after January 26, 1993, and for alterations

occurring after January 26, 1992. 28 C.F.R. §§ 36.401-.402, 36.406

(2003). The language most pertinent to this case reads as follows:

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.

Id. pt. 36 app. A § 4.33.3. Further language requires a companion

fixed seat next to each wheelchair seating area and provides that,

3
United States v. Nat'l Amusements, Inc., 180 F. Supp. 2d 251,
255 & n.4 (D. Mass. 2001). The pertinent final rules are:
Americans with Disabilities Act (ADA) Accessibility Guidelines for
Buildings and Facilities, 56 Fed. Reg. 35,408 (July 26, 1991); and
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 56 Fed. Reg. 35,544
(July 26, 1991).

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where total seating capacity in the facility "exceeds 300,

wheelchair spaces shall be provided in more than one location."

Id. The standard contains no definition of "lines of sight,"

"integral" or any other term of art.

In 1991, when the regulations including standard 4.33.3

were adopted, most movie theaters were of a traditional type in

which all seats are located on a single flat or sloped floor. In

or around 1995, the new "stadium" movie theater concept was

developed. Typically, a few rows of traditional seating on a flat

or sloped floor were retained at the front of the auditorium, and

behind them rose the majority of the seats on tiers of stepped

risers--as in many sports stadiums. Somewhat confusingly, the term

"stadium" is also often used to refer just to the section of the

seating area on risers (at least, where the risers create a steep

enough incline), as opposed to the more gently sloped seating area

in front, which we will call for simplicity's sake "the slope."

Between 1996 and 2000, the defendants in this case--two

big theater chains called Hoyts and National--constructed large

numbers of stadium theaters, including the 500 or so at issue in

this case, ranging in size from fewer than 100 seats to more than

600 seats. Most are roughly in the 150-350 seat range; of the 225

Hoyts theaters at issue, 41 have 300 seats or more, and of the 284

National theaters, 52 have 300 seats or more. These theaters are

of many different designs, and the accommodations for wheelchairs

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vary; but in a great many of them the wheelchair positions are

clustered (together with an ordinary companion seat for each

wheelchair space) in the sloped section of the theater.

In smaller theaters with 300 seats or fewer, wheelchair

spaces are typically in the sloped section, although in a few cases

the spaces are at the back of the theater or (depending on how one

labels spaces in an access aisle separating the slope from the

stadium) arguably in the first row of the stadium section. In

larger theaters with more than 300 seats, for which standard 4.33.3

requires more than one location, wheelchair spaces are dispersed

accordingly, usually with some at the rear of the auditorium.

Wheelchair placement decisions appear not to be irreversible; in

some theaters, wheelchair spaces were initially placed in the front

row, but later moved further back.

During the period from 1996 to 2000, as stadium-style

theaters grew in number, the Justice Department made no changes to

standard 4.33.3, although in July 1998 the Department filed an

amicus brief in a private ADA enforcement action brought in

district court against an individual theater complex. Lara v.

Cinemark USA, Inc., No. EP-97-CA-502-H, 1998 WL 1048497, at *1

(W.D. Tex. Aug. 21, 1998). There, the Department asserted that

unobstructed lines of sight from wheelchair spaces were not enough;

rather, the Department urged that under the ADA and standard

4.33.3, the quality of sight lines--as measured primarily by

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horizontal and vertical angles from the viewer to the screen--had

to be comparable with those enjoyed by many or most non-wheelchair

patrons.

On appeal the Fifth Circuit flatly rejected the

Department's position, holding that the existing regulations

required only unobstructed lines of sight, Lara v. Cinemark USA,

Inc., 207 F.3d 783, 789 (5th Cir.), cert. denied, 531 U.S. 944

(2000). Further litigation followed in other circuits. Two of

them--the Sixth and Ninth--ruled that viewing angles were a

component of "comparable lines of sight" and that wheelchair-using

patrons could not as a group be subject to highly uncomfortable

viewing angles while superior angles were provided for other

patrons.4

In each of these cases, the Department appears to have

asserted that the "integral part" phrase in standard 4.33.3

requires wheelchair spaces to be located in the stadium section of

stadium theaters, regardless of the size of the theater and the

adequacy of viewing angles provided from the slope. However, an

Access Board technical manual issued in July 1998 said that

4
United States v. Cinemark USA, Inc., 348 F.3d 569, 579 (6th
Cir. 2003), cert. denied, 124 S. Ct. 2905 (2004); Oregon Paralyzed
Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1133 (9th
Cir. 2003), cert. denied, 124 S. Ct. 2903 (2004). The Second
Circuit remanded for further development in a third case when the
Department filed an amicus brief on appeal. Meineker v. Hoyts
Cinemas Corp., 69 Fed. Appx. 19, 23-26 (2d Cir. 2003) (unpublished
order).

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wheelchair spaces had to be within the "footprint of the seating

layout" and that "bleachers with notches or cut-out areas" would

qualify as integrated. Access Board, ADAAG Manual 117 (1998). The

circuit cases, concerned primarily with viewing angles, have not

clearly addressed the extent to which integration is required.

On December 18, 2000, the Justice Department brought the

present enforcement action under the ADA, filing lawsuits (later

consolidated) against Hoyts and National, in the district court in

Massachusetts. The complaints charged that a number of theaters

controlled by these companies were in violation of the ADA and

standard 4.33.3. They sought declaratory and injunctive relief--

including retrofitting existing theaters--as well as damages and

civil penalties. Ultimately, the government contended that each

company had more than two hundred non-complying theaters.

Discovery ensued, including reports by and depositions of

experts on both sides. The district court refused to allow full-

scale discovery of Justice Department files by which the defendants

sought to show that the Department had been divided in its view of

standard 4.33.3 or even had once embraced the defendants'

interpretation. However, the district court did dismiss one count

of the complaints, to the extent that it relied on statutory duties

beyond those imposed by standard 4.33.3; the court viewed the

regulation as establishing the defendants' present obligations

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under Title III as to wheelchair placement. Nat'l Amusements, 180

F. Supp. 2d at 256-62.5

Eventually the defendants moved for summary judgment; the

Department opposed the motion without asking for summary judgment

in its favor. The defendants argued that the Fifth Circuit's Lara

decision was correct, and that their obligation under standard

4.33.3 was to provide unobstructed lines of sight, which they had

done. The district court held an oral hearing on September 12,

2002, at which it described its own tentative views and invited

further submissions to supplement the record.

On March 31, 2003, the court issued an extensive

decision, denying the defendants' motion for summary judgment but

granting sua sponte summary judgment for the Department to the

extent of providing declaratory but not injunctive relief. United

States v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73, 91, 93 (D. Mass.

2003). The court then entered judgment to this effect and closed

the case on its docket. Both sides treat this as a final judgment

5
Count I of the Department's complaints alleged violations of
standard 4.33.3, characterizing these violations as unlawful
discrimination under the ADA's root antidiscrimination provision,
section 302(a), 42 U.S.C. § 12182(a), and under section 303(a)'s
specific requirement that "new construction and alterations" be
"readily accessible to and usable by" individuals with
disabilities, 42 U.S.C. § 12183(a)(1). Count II incorporated the
same violations of standard 4.33.3 into a more general claim of
discrimination under section 302(a) and under section 302(b)'s
mandate of equality and integration in public accommodations, 42
U.S.C. § 12182(b).

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and, noting the district court's docket entry and the lack of any

commitment to further proceedings, so do we.

The district court's declaration, embodied in the

judgment, says that standard 4.33.3--seemingly in all cases and

regardless of stadium size--requires placing wheelchair spaces in

the stadium section of the theater. Hoyts Cinemas, 256 F. Supp. 2d

at 93. However, as a matter of due process and in light of the

lack of clarity in standard 4.33.3, the district court ruled that

this obligation would only be applied to those of the defendants'

theaters "wherein construction or refurbishment . . . occurs on or

after the date on which this lawsuit commenced," that is, December

18, 2000. Id. From this judgment, both sides have appealed.

The defendants' appeals primarily contest the district

court's reading of standard 4.33.3 and the decision to make the

ruling retroactive to the start of this case, but the defendants

also offer procedural and discovery objections. The government

primarily defends the district court's substantive ruling, although

saying that the court went too far in seeming to condemn wheelchair

spaces that provide "comparable" viewing and are on risers--but on

risers shorter than the court's understanding of "stadium" would

imply. The government's main claim of error on its cross-appeal is

that greater retroactivity should have been afforded to the

district court ruling.

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 In our court, briefing followed and oral argument was

held February 6, 2004. However, at that time a petition for

certiorari was pending in the Supreme Court seeking review of the

Ninth Circuit's decision in Regal Cinemas based on the conflict

with Lara, so we withheld decision. But the Solicitor General

later opposed certiorari, noting that a new Access Board amendment

would soon provide further guidance. Virtually at the end of its

Term, the Court denied review. Regal Cinemas, Inc. v. Stewmon, 124

S. Ct. 2903 (2004).

The Access Board amendment, just adopted in July 2004,6

requires that in assembly areas of more than 300 seats, wheelchair

spaces shall be dispersed and shall provide wheelchair users a

choice "of seating locations and viewing angles that are

substantially equivalent to, or better than," those "available to

all other spectators." Americans with Disabilities Act (ADA)

Accessibility Guidelines for Buildings and Facilities ("Amended

ADAAG"), 69 Fed. Reg. 44,084, 44,198 (July 23, 2004) (to be

codified at 36 C.F.R. pt. 1191 app. B § 221). In smaller theaters,

no "vertical dispersal" would be required if the wheelchair spaces

provided "viewing angles that are equivalent to, or better than,

6
The Department has announced its intention to conduct a
rulemaking to revise its Title III regulations, including adopting
the amended Access Board guidelines, starting in January 2005.
Unified Agenda, 69 Fed. Reg. 37,749, 37,749 (June 28, 2004).

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the average viewing angle provided in the facility." Id. at 44,199.

On these appeals, we address in order three principal

issues: first, whether section 4.33.3 supports either the

defendants' claim that their obligations are limited to

unobstructed lines of sight or the Department's claim that

wheelchair locations must always be in the stadium section of every

theater; second, whether the district court correctly ruled that

wheelchair placement in the stadium section is automatically

required for all stadium theaters based on the alleged factual

superiority of such seating; and third, whether the district

court's retroactivity ruling is correct. Other issues are

presented but are most easily addressed within this framework.

Standard 4.33.3. The defendants appear to have built

many, perhaps most or all, of the stadium theaters in question on

the premise that their central obligation was to provide wheelchair

spaces with unobstructed lines of sight, anywhere within the plan

of each theater. Usually they found it most convenient to place

the wheelchair spaces in the sloped section (sometimes though not

always near the front), but other times wheelchair spaces were

placed in the front row or so of the stadium section or at the very

back. In considering the defendants' defense of this approach, the

initial question is the substantive legal standard against which to

measure it.

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 Here, the government's complaint challenged the

defendants' seating arrangements in two counts, one resting upon a

regulation--standard 4.33.3--and the regulation's statutory bases,

and the other resting mainly upon a set of more general statutory

provisions bearing upon accommodations. The district court

dismissed the second count to the extent that it sought to impose

obligations beyond the more specific standard, Nat'l Amusements,

180 F. Supp. 2d at 256-262, and the government has not taken direct

issue with this approach.

We accept this premise because neither side disputes it

and because it makes more sense to focus upon a somewhat uncertain

regulation directed to the very problem at hand rather than an even

vaguer set of statutory provisions framed in more general terms.

Nevertheless, the statute as a whole remains highly relevant. It

provides the purpose and general objectives that cast light on the

meaning of the regulation at issue. See Navarro v. Pfizer Corp.,

261 F.3d 90, 102 (1st Cir. 2001).

Turning to standard 4.33.3, we note at the outset that it

has two pertinent elements--one directed to "comparability" of

lines of sight and the other to assuring that wheelchair spaces are

made an "integral" part of the theater seating plan. These two

elements correspond to two themes that run through Title III of the

ADA. Title III's main thrust is to secure access for the disabled,

but many of the provisions are aimed at assuring not only

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reasonable access but reasonable equality of access so far as

feasible, while other provisions are concerned with the related but

distinct aim of preventing undue segregation of the disabled. See

note 1, above.

The defendants' theaters at issue in this case do provide

wheelchair access: there are locations provided for wheelchairs,

feasible means of reaching them, and (apparently) unobstructed

lines of sight. The defendants say that this is all that the

regulation requires and that standard 4.33.3 does not dictate that

angles of sight for those seated in wheelchairs be as good as those

for non-wheelchair patrons seated higher up in the theaters. And,

say the defendants, quality of viewing aside, the regulation

certainly does not say that there is a mechanical obligation to

place wheelchair spaces in the stadium section of the theater.

We start with the issue of angles of sight. Admittedly,

the defendants' position has been adopted by one circuit (in Lara),

seconded by a strong dissent in the Ninth Circuit's Regal Cinemas

decision. 339 F.3d at 1135-37 (Kleinfeld, J., dissenting). It

gains some force from the broader context: the regulations were

intended to provide guidance and it would have been child's play

for the drafters to make clear that the "lines of sight"

requirement encompassed not only unobstructed views--a classic

problem for wheelchair occupants in many types of auditoriums and

arenas (especially where spectators tend to stand)--but also angles

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of sight. Yet the Department and the Access Board apparently took

no such position until 1998.

While all of this is relevant to the equities that inform

a decision on retroactive relief, we think that the better reading

of the regulation is that it takes angles of sight into account.

Admittedly, the drafters may not have thought about angles at all;

there is no clear "legislative history." But judges constantly

read statutes and regulations in light of language, purpose, and

other policy considerations to solve problems that the drafters may

not have squarely considered. See Versyss, Inc. v. Coopers &

Lybrand, 982 F.2d 653, 654-57 (1st Cir. 1992), cert. denied, 508

U.S. 974 (1993). On balance, the considerations favor the

government.

Words are the usual starting point in interpretation.

"Lines of sight" is a fairly general phrase, no doubt capable of

being used to refer only to an unobstructed view; but its very

generality makes it capable of encompassing comparability of angles

as well as freedom from obstruction. Each side can muster

dictionary glosses but it is enough here that those favoring the

government are at least as good as those favoring the defendants.

Then, the balance is easily tipped by the underlying policy of the

statute.

The ADA places substantial emphasis on equality of

access. See, e.g., 42 U.S.C. §§ 12101(a)(5), 12182(a). As a

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matter of common sense, this cannot be absolute equality; a tilt-

back chair for ordinary patrons does not therefore entail a tilt-

back platform for a wheelchair. But at least in some theater

layouts, the evidence indicates that lines of sight for close-up

wheelchair patrons could be quite uncomfortable and distorting.

See Regal Cinemas, 339 F.3d at 1128. If most or all of the

wheelchair sites in the theater have badly degraded views and most

or all of the non-wheelchair seats have good viewing angles, the

basic objective of the statute would surely be undermined.

Extreme angles in either the vertical (up-down) or

horizontal (right-left) planes have a double disadvantage--physical

discomfort, especially if the head has to be tilted back too far,

and visual distortion. True, some patrons have unusual preferences

and some seats are always going to be worse than others; but even

before the ADA the evidence shows an understanding in the theater

design business that extreme angles are inferior. The government's

and the theaters' evidence may suggest that vertical angles

exceeding 35 degrees to the top of the screen (or 30 degrees to the

center) are less than comfortable; but whatever the "right"

numbers, the record shows that severe angles at some stage grow

markedly less satisfactory to many patrons.

In sum, the statutory objective can best be carried out

by applying standard 4.33.3's comparability requirement to angles

of sight as well as lack of obstruction. Whether the standard was

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initially clear enough to justify this interpretation to theaters

constructed before the district court's decision is a separate

issue to which we will return. Just what "comparability" may

require is also a different question; it is harder to provide

guidance on this issue because of the variety of approaches

available, the fact-intensive character of the issue, and the lack

of adequate briefing.

In reaching our conclusion, we give some weight to the

Justice Department's interpretation of the regulation. Such

deference is proper even though the Department's gloss is offered

only in a brief rather than in some more formal manner (e.g., an

interpretive ruling), see Auer v. Robbins, 519 U.S. 452, 461-62

(1997), although the courts must then be alert to the risk of post

hoc rationalizations. Id. at 462; see Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 213 (1988) (discounting "a convenient

litigating position"). The Department's position on angles has been

consistent since Lara. See Thomas Jefferson Univ. v. Shalala, 512

U.S. 504, 515 (1994).

Admittedly, standard 4.33.3 was drafted by the Access

Board and adopted mechanically by the Department on the same day.

But there remain institutional reasons for giving some weight to

the Department's reading, Paralyzed Veterans of Am. v. D.C. Arena

L.P., 117 F.3d 579, 585 (D.C. Cir. 1997), cert. denied, 523 U.S.

1003 (1998); cf. Navarro, 261 F.3d at 98-99, although one

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conventional reason for deference--expertise--could well justify

giving some weight to the views of the Board itself. In any event

the Board's 1998 technical manual agrees that "[b]oth the

horizontal and vertical viewing angles must be considered in the

design of assembly areas." Access Board, supra, at 117.

Where our reading of standard 4.33.3 differs from that of

the Department is on the second element--the "integral"

requirement--which the government says requires that wheelchair

spaces always be placed in the stadium section. Here, two possible

positions must be distinguished: first, that standard 4.33.3

requires this result as a matter of law even if the quality of

viewing from the slope is as good as that in the stadium section;

or second, that as a factual matter placing wheelchair spaces in

the stadium section is required in a particular theater whenever--

as the Department thinks is common--the view from the slope is

worse than from the stadium.

At different times the government has taken each of these

positions.7 The two arguments rest on different concepts and have

different results, namely for theaters that offer slope seating

7
A number of passages in the government's initial district
court filings seemingly take the per se legal position that
"integral" means within the stadium section because that is the
main or most popular section in stadium theaters. At summary
judgment, and in this court, the government's briefs are more
guarded, shifting toward an argument that in fact stadium seating
provides superior viewing and is preferred by most patrons--and
therefore only seating there is "integral."

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comparable in quality to seating in the stadium. No circuit court

has adopted a reading of the word "integral" that automatically

compels wheelchair siting in all stadium sections regardless of

slope-seating quality. We reject such a reading of "integral" and

now explain why, reserving for discussion later the Department's

more modest factual argument that quality differences commonly

justify wheelchair seating in the stadium area.

Integration is inherently a matter of degree--one could

have a wheelchair space in every row of the theater--and the term

"integral" does not tell one anything about how much integration is

required. Read straightforwardly, "integral" means that the

wheelchair locations must be a constituent part of the theater, see

Random House Dictionary of the English Language 990 (2d ed. 1987).

The Access Board took just this view in its 1998 technical manual,

saying that "integral" required wheelchair locations to come within

"the footprint of the seating layout." Access Board, supra, at

117.

Further, the same technical manual deals directly with

"dispersal." Pertinently, it says that in theaters of over 300,

wheelchair spaces must be provided "in all areas, including sky

boxes and specialty areas." Access Board, supra, at 117. The

converse implication is that in smaller theaters there is no

automatic requirement that wheelchair spaces be in any specific

location. Of course, in a particular theater (perhaps in most),

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"comparability" might require stadium locations for wheelchairs--

but this is a different issue, dependent upon evidence.8

Angles of sight were a familiar aspect of theater design

when the standard was framed, and there is nothing implausible

about reading "lines of sight" to encompass the angles at which the

lines connect the viewer to the screen. But the term "integral"

was adopted in standard 4.33.3 before there were stadium theaters.

To read it as mechanically requiring wheelchair spaces in a

particular part of the theater, regardless of the adequacy of the

view from the slope, appears to us not to gloss the word but to re-

write the regulation in a fashion that could not reasonably be

anticipated.

Deference to the agency's view does not mean abdication.

Here, the Department's gloss (unlike that in the Access Board's

1998 manual) is an unnatural reading of "integral," advanced

inconstantly in this very case, and peculiarly rigid and specific

as applied to a class of theaters not conceived of until well after

the standard was written and adopted. The Department is free to

interpret reasonably an existing regulation without formally

amending it; but where, as here, the interpretation has the

practical effect of altering the regulation, a formal amendment--

8
The amended version of standard 4.33.3 just adopted by the
Access Board similarly distinguishes between large and small
theaters, requiring dispersal only in the former but requiring
adequate viewing angles in theaters of all sizes. Amended ADAAG,
69 Fed. Reg. at 44,198-99.

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almost certainly prospective and after notice and comment--is the

proper course.9

The District Court's Main Ruling. The district court,

confronted with the defendants' motion for summary judgment,

instead granted summary judgment for the government. Its holding,

and main rationale for that holding, can be summed up in the

district court's own language:

[S]tadium-style theaters cannot possibly offer
"lines of sight comparable to those for
members of the general public" when
wheelchair-accessible seats are placed only in
the traditional-seating section, whether on
risers or otherwise.

Hoyts Cinemas, 256 F. Supp. 2d at 88 (quoting 28 C.F.R. pt. 36 app.

A § 4.33.3). The court also said that such seating could not be

"integral," but this ruling rested expressly on the same premise,

namely, "the superiority of the stadium section." Id. at 89.

The district court's bases for this factual conclusion

appear to be three: the district judge's taking of judicial notice

that movie patrons prefer the middle or back of the theater;

several assertions by the district judge as to why stadium seating

is superior; and what the district judge called "a matter of simple

9
See Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 100
(1997) (stating that APA rulemaking would be required if a new
agency position "effec[ted] a substantive change in the
regulations" (internal quotation marks omitted)); Mission Group
Kan., Inc. v. Riley, 146 F.3d 775, 782 (10th Cir. 1998)
(distinguishing agency interpretations that are "new" rules, which
would require APA notice and comment, from those that really are
"interpretation[s]" of existing rules (emphases omitted)).

-21-
geometry," namely, that theater seats in the stadium section, which

is further back than the slope, offer patrons narrower and flatter

sight lines. Hoyts Cinemas, 256 F. Supp. 2d at 88.

On appeal, the defendants lodge an initial procedural

objection, pointing out that there was no cross-motion for summary

judgment by the government. There is nothing impermissible in

considering a grant of summary judgment sua sponte, but it is then

ordinarily vital for the court to give the parties notice. Without

such notice, the opponent of such a disposition may be deprived of

the chance to muster affidavits and other evidence to show that a

genuine issue of material fact precludes summary judgment. See

Rogan v. Menino, 175 F.3d 75, 80-81 (1st Cir.), cert. denied, 528

U.S. 1062 (1999); Berkovitz v. Home Box Office, Inc., 89 F.3d 24,

31 (1st Cir. 1996).

In the oral argument on the defendants' motion, the

district court did give the parties some notice of its tentative

thinking, and the court also gave the parties opportunity to make

further written submissions, in particular inviting them to

reconsider the "integral" problem. Indeed, on appeal the

defendants rely on evidence already in the record as precluding

summary judgment; whether with better notice they would have

offered even more evidence is unclear.

We need not resolve the procedural objection. On the

present record we conclude that the district court has not

-22-
justified a finding that condemns each and every theater that

provides slope but not stadium spaces for wheelchairs. A trial, or

perhaps even summary judgment backed by more evidence and further

analysis, might justify such a result for many of the theaters--

perhaps most or even all. But the district court's blanket

determination--that all slope-only wheelchair placement is

inferior, whatever the size or configuration of the theater--is

multiply flawed.

We begin with the district judge's reliance on judicial

notice to establish the preferences of movie theater patrons.

Deciding whether facts are "adjudicative," and so subject to

stringent substantive and procedural requirements, Fed. R. Evid.

201, is often no easy task as one moves further back on the

spectrum from the "what happened here" kinds of issues. See United

States v. Bello, 194 F.3d 18, 22-23 (1st Cir. 1999); Fed. R. Evid.

201(a) advisory committee's note. But the seating preferences of

patrons in stadium theaters are a central issue in this case; the

district court deemed it adjudicative by relying on Rule 201, and

the government does not argue otherwise.

One of the requirements of Rule 201 is procedural,

namely, that the parties be given notice and an opportunity to

object to the taking of judicial notice. See Cooperativa de Ahorro

y Credito Aguada v. Kidder, Peabody & Co., 993 F.2d 269, 273 (1st

Cir. 1993), cert. denied, 514 U.S. 1082 (1995). The district judge

-23-
did refer in the hearing to his own experience in a particular

stadium theater, but this is less than a clear-cut warning that

judicial notice will be used to convert this single instance into

a universal proposition that may not be disputed. In any event the

rule also requires both that the noticed fact be "not subject to

reasonable dispute" and that it be so either (1) on the basis of

general knowledge within the territorial jurisdiction of the trial

court or (2) because it is capable of being determined by an

assuredly accurate source.

To support the district court's judgment, the preference

for middle to rear seating must be not just common but ubiquitous,

applying to every stadium-style movie theater regardless of size or

configuration. The district court's decree applies to all of the

defendants' many theaters where wheelchair spaces are not in the

stadium section--several hundred in number, designed by different

architects, and scattered across the United States. Possibly, most

of the audience in every single theater at issue prefers stadium

seating, but this cannot a priori be beyond reasonable dispute.

Nor does Rule 201's source requirement appear met. It

may be common knowledge in Boston that seating at a particular

theater is best in the middle or back, although this would be much

more plausible in a small, one-theater town; but surely residents

of Boston have no such common knowledge about particular theaters

in other states. Nor does the district court point to an

-24-
unquestionably accurate source--a respectable almanac is the usual

example--to support its proposition. As we will see, the district

court's proposition is colorably disputed, as to some theaters, by

defense evidence in this very case.

Rule 201 is applied with some stringency, because

accepting disputed factual propositions about a case "not tested in

the crucible of trial is a sharp departure from standard practice."

Lussier v. Runyon, 50 F.3d 1103, 1114 (1st Cir.), cert. denied 516

U.S. 815 (1995); cf. New Alliance Party v. N.Y. State Bd. of

Elections, 861 F. Supp. 282, 292 (S.D.N.Y. 1994) ("[Ballot]

position bias may be a commonly-held belief in this jurisdiction,

but its imprecise and conditional nature preclude it from being

characterized as a judicially noticed fact . . . ."). Here,

theater seating preferences were a matter for evidence, not

judicial notice.

The district court's second basis for its finding of

stadium-seating superiority was a set of general observations about

the qualities of stadium seating. Specifically, the court said

that stadium seating (being further back) has less risk of image

distortion and excessively wide horizontal or uncomfortable

vertical angles of sight, and also that the stadium seats are

larger, more comfortable, better elevated over seats in front and

endowed with wider arm rests (with cup holders) and tilt-back

ability. No source is given for these propositions beyond the

-25-
statement that they are gleaned "from the record of undisputed

facts." Hoyts Cinemas, 256 F. Supp. 2d at 78-79.

It is not clear why the quality of the theater seats

themselves matters since wheelchair patrons apparently use spaces

for their chairs rather than theater seats. But the angle and

distortion considerations are plausible reasons why many (perhaps

most) patrons, in many (perhaps most) theaters, might prefer

seating in the stadium section. Yet it is hardly obvious that this

would be true in every stadium theater regardless of configuration.

Further, the question on summary judgment is not whether

the district court's assumptions might prove right but whether the

government's affidavits and other evidence are so overwhelming that

there is no basis for a trial and specific factual findings.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ.

P. 56; cf. Fed. R. Civ. P. 52(a). Here, the defendants did point

to evidence that viewers in particular theaters found some seats in

the slope or in the access aisle equally attractive to some seats

in the stadium, and that in others wheelchair spaces in the slope

-26-
had quite good angles.10 The district court's decision does not

discuss such evidence.

The district court's last building block is its geometry

argument, which is easily enough grasped: moving back from an

object narrows both the horizontal and vertical angles of sight

from observer to the perimeter lines of the object. Indeed, if the

screen is itself placed high up from the floor, stadium seats may

already be closer to eye level with the screen. There is nothing

wrong in using such indisputable premises for reasoning about the

facts. Cf. United States v. Amado-Nunez, 357 F.3d 119, 121-22 (1st

Cir.), cert. denied, 124 S. Ct. 2864 (2004).

But distance has disadvantages of its own; the object is

further away, details smaller, and the experience perhaps less

absorbing for many viewers. Further, narrower angles are surely

better, in any meaningful sense, only up to a point. Both sides,

for example, point to evidence suggesting a comfort range in the

vertical plane of 30-35 degrees or less; where such views are

provided on the slope, this could arguably provide comfort

10
Using an audit of actual seating choices in over 100 Hoyts
and National theaters, orchestrated by a Justice Department expert
(under supervision from Hoyts and National employees), Hoyts
identifies two of its theaters in which the rows where the
wheelchair spaces were placed (in the middle access aisle) are
among the most popular rows. National mentions 20 theaters that
satisfy the demanding viewing comfort test advanced by a Justice
Department expert in this case.

-27-
"comparable" to stadium seats even if the latter had even flatter

angles.

On appeal, the government makes no effort to sustain the

district court judgment by arguing that its evidence shows, so

overwhelmingly as to justify summary judgment, that in every

theater the quality of viewing is better from the stadium section.

What its brief says about the evidence is that "[a] substantial

number of defendants' auditoriums situate the wheelchair areas in

locations that afford lines of sight that are inferior to those

provided most other members of the general public." The district

court's judgment was not limited to "a substantial number" of

theaters.

Admittedly, the government's examples and data are

telling. It says that about 150 of the theaters in dispute have

wheelchair viewing angles that range from 36 to 55 degrees, while

most of the non-wheelchair seats have "more comfortable viewing

angles." It also offers some specific examples of theaters with

inferior wheelchair placement, providing information about those

specific viewing angles. And its brief points to complaints by

wheelchair patrons as well as survey data showing that in one

theater complex, among others identified in the record, nearly all

patrons preferred stadium to slope seating.

So the government might well have a case on summary

judgment for a ruling that some, many, or even most, of the

-28-
defendants' theaters violate the comparability requirements of

standard 4.33.3. But on this appeal it does not ask us to affirm

the district court's judgment as to any individual theater. Nor is

this court the proper place in the first instance to sort through

the evidence and decide, theater by theater, whether a particular

theater should be condemned on summary judgment. Cf. Fed. R. Civ.

P. 52(a) & advisory committee's note (1985 amendment). Nor can

this be done until the parties abandon the all-or-nothing approach

and deal directly with individual theaters or groups of theaters.

The government apparently did provide in the district

court an expert report in which most of the theaters were condemned

based on a fairly abstruse multi-part test. But by summary

judgment the government had disavowed relying on the report's

conclusions, and the report was severely criticized by the district

court, which found it "confusing, overlong, and, just as the

Cinemas contend, 'absurdly demanding.'" Hoyts Cinemas, 256 F.

Supp. 2d at 87 n.12. There may be other material in the record

that would assist a summary judgment motion condemning all theaters

based on lack of comparability, but it is not identified in the

government's brief on appeal.

Whether a remand will entail trench warfare litigation on

a theater-by-theater basis or whether there are shortcuts remains

to be seen. It is not hard to imagine developing criteria as to

comparability that could be applied somewhat mechanically to the

-29-
angles in individual theaters. But whether summary judgment by the

government could ever be supported as to some theaters or even all

is a matter to be addressed on remand if the government makes such

a motion.

Retroactivity. After declaring that all stadium theaters

must include wheelchair spaces in the stadium section, the district

court said that this ruling would apply to theaters built or

refurbished on and after the date of the filing of the government's

complaint (December 18, 2000). The defendants say that the proper

starting date is the date of the district court's own decision.

The government, by cross-appeal, says that the ruling should apply

to all of the theaters at issue, whenever built (all were built

after 1993).

Technically, we could refuse to comment on this issue

because the district court's merits decision is being vacated.

Indeed, the equities as to retroactivity depend on the shape of the

final substantive order, and the substantive order that results

from our remand is not likely to be exactly the same as the present

order. Nevertheless, it may facilitate the remand, and enhance the

possibility of settlement, for us to address the retroactivity

issue in general terms.

The power of a district court to craft and even withhold

injunctions based on equitable considerations is well established.

Equitable relief is ordinarily discretionary, Dudley v. Hannaford

-30-
Bros. Co., 333 F.3d 299, 311 (1st Cir. 2003), and the ADA confirms

that court enforcement invokes the court's discretionary judgment.

42 U.S.C. § 12188(b)(2); see also 28 C.F.R. § 36.504.

"Discretion," of course, implies latitude for the district judge,

but subject always to the overriding constraint that the discretion

be reasonably exercised. U.S. Pub. Interest Research Group v.

Atlantic Salmon of Me., LLC, 339 F.3d 23, 32 (1st Cir. 2003);

Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321 n.6 (1st Cir.

1989) (en banc).

In this instance, the district court began its discussion

of retroactivity by saying that it agreed with the defendants "that

due process requires that the Court's declaration ought operate

only prospectively." Hoyts Cinemas, 256 F. Supp. 2d at 91. Due

process may furnish a floor to protection, based primarily on lack

of fair warning,11 but we think that equitable principles give the

district court even greater latitude to decline or limit

retroactivity. For example, the court might equitably consider not

only the level of warning but also government indolence or

misleading advice and the avoidance of extravagant expenditure for

11
In Cheshire Hosp. v. N.H.-Vt. Hospitalization Serv., Inc.,
689 F.2d 1112, 1121 & n.10 (1st Cir. 1982), we explained that "the
retroactive application of a new interpretation of an old
regulation," like a new regulation itself, is subject to due
process analysis; and "a critical consideration is the extent to
which a retroactive rule or interpretation adversely affects the
reasonable expectations of concerned parties."

-31-
little gain. Cf. United States v. Mass. Water Res. Auth., 256 F.3d

36, 45-46, 55-58 (1st Cir. 2001).

There is no doubt that standard 4.33.3 is vague as to

whether it embraces angles, that the Justice Department has been

slow in providing more precise guidance by regulation, and that the

belated amicus brief in Lara and the differing conclusions of the

courts have impaired predictability. And some range of

expenditures for altering existing theaters to achieve theoretical

perfection might not be reasonable; this the government more or

less concedes in its briefs.

Nor is it a conclusive answer to argue, as the government

does from public sources, that the theater industry has long

regarded viewing angles as important in designing theaters and that

this was certainly true in 1991 when standard 4.33.3 was framed.

Whether or not viewing angles mattered to patrons, the defendants

were entitled to provide the minimum that the law required of them.

Thus, from a narrow standpoint, the defendants might be able to say

that they lacked clear warning of the government's gloss until

1998.

On the other hand, anyone who read the ADA's own broader

language and took account of the underlying policy might well have

understood that imposing truly bad viewing angles on wheelchair

patrons--say, angles of the kind described in the Ninth Circuit's

Regal Cinemas decision--would not be a whole-hearted implementation

-32-
of the statute and that the phrase "lines of sight" could be read

to cover more than an unobstructed view. Theater chains can afford

able counsel.

The extent to which "retroactive" application seems

unfair may depend in part on exactly what obligation is ultimately

imposed on the defendants. Merely as an example, putting

wheelchair spaces in the stadium section of every already

constructed theater is one thing; remedying terrible wheelchair

viewing angles in the worst existing theaters is something else.

In a court of equity it is legally possible, and almost surely wise

in this case, to decouple what is required prospectively from what

is required as to theaters already built.

Against this background, we note three concerns as to the

district court's approach. First, if one looks for an

authoritative government statement of its general position, Lara

supplied that in 1998; if the test is a definitive judicial

determination for these defendants, this came only with the

district court's own decision. Why the filing of this lawsuit

makes sense as an equitable date for implementing a decision made

several years later is not obvious and not explained.

Next, the court gave no explicit consideration to the

possibility that some of the defendants' theaters are so

inhospitable to wheelchair patrons that a measure of reconstruction

is warranted--although surely not everything that would be required

-33-
of a new theater. Admittedly, an all-or-nothing solution as to

retroactivity has advantages of its own and, if the district court

opted against any reconstruction, this might be within its

reasonable discretion. But the issue is worth addressing.

Equitable considerations do not operate only one way.

The plight of the disabled, whom Congress sought to protect

starting over a decade ago, is the central concern of the statute

and a proper consideration--even in a due process assessment. Even

in a due process context, the public interest bears upon the

retroactivity to be allowed. "[N]ot every law that upsets

expectations is invalid; courts have generally compared the public

interest in the retroactive rule with the private interests that

are overturned by it." Adams Nursing Home of Williamstown, Inc. v.

Mathews, 548 F.2d 1077, 1080 (1st Cir. 1977).

This brings us to a different issue. The defendants

complain that any limit on retroactivity is meaningless if the

comparable viewing angles requirement is applied not only to new

theaters built after its announcement but also (as the district

court suggested) to any "refurbishment" of existing theaters; this

is so, they say, because under the district court's definition of

"refurbishment" as any change that requires a building permit under

local law, even the minutest change (e.g., laying electrical lines)

might entail the complete revamping of the entire theater.

-34-
Obviously this issue needs to be briefed and addressed as part of

any decision as to retroactivity.

Such concerns underscore the need for the parties to have

due notice and be given an opportunity to argue about retroactivity

after the prospective obligations have been established. Yes,

courts often address issues on which the parties may not earlier

have focused fully; motions to reconsider exist partly for this

reason. Given our remand on the merits, we need not resolve the

theaters' claim that last time they had insufficient opportunity to

address the retroactivity problems.

There remains the defendants' claim that the district

court erred in denying them (provisionally) discovery of Justice

Department internal communications on the meaning of standard

4.33.3. Our own interpretation set forth above, which would not be

altered by internal Justice Department communications, moots the

discovery so far as it aims to influence the interpretation of

standard 4.33.3. If such discovery has any bearing on the equities

that affect retroactivity, the defendants are free to refocus and

renew their request on remand.

One other observation may be helpful. The Access Board's

amended standard 4.33.3, if adopted by the Department, goes a long

way to determining for the future the extremely difficult question

of how much "comparability" is required for new construction. But

it is an amendment, not a gloss on the existing regulation, and

-35-
therefore does not itself govern existing theaters (future

alterations aside). If the parties can reach practical

accommodations as to the worst of the existing theaters, the remand

may prove a much simpler task than it initially might appear.

Although compelled to remand, we acknowledge the district

court's thoughtful discussion in a case that is formidably

difficult, due both to the complexity of the legal issues and to

the number and variety of theaters in dispute. It is now time for

the parties to show an equal dedication by attempting to work out

a settlement, bearing in mind that no solution as to existing

theaters will be perfect and that prompt improvements may matter

more than theoretical perfection.

The judgment of the district court is vacated and the

matter remanded for proceedings consistent with this decision.

Each side shall bear its own costs on this appeal.

It is so ordered.

-36-