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NOT FOR PUBLICATION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
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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
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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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