117 F.3d 579 (D.C. Cir. 1997), 97-7005, Paralyzed Veterans of America v. D.C. Arena L.P.

Docket Nº:97-7005, 97-7017.
Citation:117 F.3d 579
Party Name:PARALYZED VETERANS OF AMERICA, et al., Appellees/Cross-Appellants v. D.C. ARENA L.P., A District of Columbia Limited Partnership, et al., Appellants/Cross-Appellees
Case Date:July 01, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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117 F.3d 579 (D.C. Cir. 1997)

PARALYZED VETERANS OF AMERICA, et al., Appellees/Cross-Appellants


D.C. ARENA L.P., A District of Columbia Limited Partnership,

et al., Appellants/Cross-Appellees

Nos. 97-7005, 97-7017.

United States Court of Appeals, District of Columbia Circuit

July 1, 1997

        Argued May 9, 1997.

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        [326 U.S.App.D.C. 26] Appeals from the United States District Court for the District of Columbia (96cv01354).

        John G. Kester, Washington, DC, argued the cause for appellants, with whom Brendan V. Sullivan, Jr., Paul Mogin, and Thomas G. Hentoff were on the briefs.

        Niki Kuckes, Washington, DC, argued the cause for appellees, with whom William H. Jeffress, Jr., David S. Cohen, and Lawrence B. Hagel were on the briefs.

        Samuel R. Bagenstos, Attorney, United States Department of Justice, Washington, DC, argued the cause and filed the brief for amicus curiae the Unites States.

        Before EDWARDS, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges.

        Opinion for the Court filed by Circuit Judge SILBERMAN.

        SILBERMAN, Circuit Judge:

        Appellees/cross-appellants (appellees) sued appellants/cross-appellees (appellants) to require that the wheelchair seating in an arena under construction provide lines of sight over standing spectators. The district court concluded that most, but not all, of the wheelchair seating must have such sightlines. We affirm.


        Appellants own and will operate the MCI Center, an arena currently under construction in downtown Washington, D.C. It will house the NBA's Washington Wizards and the NHL's Washington Capitals, and will host concerts and other special events. One aspect of the design of any arena is the choice of the "seating bowls," a selection that determines what seats will be offered for sale at what events. Because the games and events will be exciting affairs and the patrons are expected, even encouraged at times, to stand and cheer for the home teams, wheelchair users are understandably concerned about whether the seats available to them will allow them to see the action during the most dramatic moments.

        The case arises under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (1994). The general rule of Title III provides:

No 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.

        Id. § 12182(a). Newly constructed facilities subject to the ADA must be "readily accessible to and usable by individuals with disabilities." Id. § 12183(a)(1). Congress has directed the Department of Justice to flesh out these general principles by "issu[ing] regulations ... that include standards applicable to facilities" covered by Title III. Id. § 12186(b). One of these regulations, known as Standard 4.33.3, is the centerpiece of this litigation. It states:

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[326 U.S.App.D.C. 27] 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. ... At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location....

        28 C.F.R. Part 36, App. A, § 4.33.3 (1996). The controversy concerns whether the "lines of sight comparable" language of Standard 4.33.3 requires wheelchair seats to afford sightlines over standing spectators.

        The Department did not actually draft the language of Standard 4.33.3; it was fashioned by the Architectural and Transportation Barriers Compliance Board, known as the Access Board. Congress had instructed that Justice's regulations be "consistent with the minimum guidelines and requirements issued by" the Board. 42 U.S.C. § 12182(c). It is comprised of 13 individuals appointed by the president and representatives of 12 government departments or agencies, including the Department of Justice. See 29 U.S.C. § 792(a)(1) (1994). And it is charged, inter alia, with "develop[ing] advisory guidelines for," and "establish[ing] and maintain[ing] minimum guidelines and requirements for the standards issued pursuant to," Title III of the ADA. Id. § 792(b)(2), (3) (emphasis added).

        In January of 1991, the Board proposed accessibility guidelines, one of which would have required that wheelchair seating be "located to provide lines of sight comparable to those for all viewing areas." It pointed out that its wording "may not suffice in sports arenas or race tracks where the audience frequently stands." Therefore it solicited comments on "whether full lines of sight over standing spectators ... should be required." 56 Fed.Reg. 2296, 2314 (1991). Meanwhile, in February of that year, the Justice Department issued its own notice of proposed rulemaking in which it proposed, inter alia, "to adopt [the Access Board's] guidelines as the accessibility standard applicable under this rule" and in which it directed "any comments" to those guidelines to be sent to the Board. 56 Fed.Reg. 7452, 7478-79 (1991). Although "[m]any commenters ... recommended that lines of sight should be provided over standing spectators," the Board in July issued a guideline, essentially the same as the proposal, that omitted reference to the standing spectator problem: it recommended "lines of sight comparable to those available to the rest of the public," and stated that the issue of lines of sight over standing spectators "[would] be addressed in guidelines for recreational facilities." 56 Fed.Reg. 35,408, 35,440 (1991); see also 56 Fed.Reg. at 60,618. On the same day, the Department promulgated Standard 4.33.3, worded identically to the Board's guideline.

        Unlike the Board, the Department did not initially express a view on whether the "lines of sight comparable" language required sightlines over standing spectators. In a 1992 speech to a conference of Major League Baseball stadium operators, the deputy chief of the Public Access Section of the Department of Justice did say that "[t]here is no requirement of line of sight over standing spectators." By the middle of 1993, however, when Justice initiated its investigation into the accessibility of venues for the 1996 summer Olympic games, it began taking the position that "lines of sight comparable to those for members of the general public" meant "line[s] of sight over standing spectators." 1

        Then, in late 1994, Justice undertook to publicize more formally its position that "lines of sight comparable" included sightlines over standing spectators. As part of its Title III regulatory responsibility, Justice is required to "ensure the availability and provision of appropriate technical assistance manuals." 42 U.S.C. § 12206(c)(3). The Department's first Americans with Disabilities Act Title III Technical Assistance Manual, and several successive annual supplements, contained exceedingly detailed requirements

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[326 U.S.App.D.C. 28] for compliance with Title III, but said nothing about sightlines over standing spectators. But, in December, the Department published, without notice and comment, a supplement to its manual that explicitly interpreted "lines of sight comparable" to require sightlines over standing spectators. The supplement noted that "wheelchair locations [must] provide ... lines of sight comparable to those for members of the general public," and stated, "[t]hus, in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheelchair locations must provide lines of sight over spectators who stand." (Emphasis added.)

        A month after Justice issued the supplement appellants chose four seating bowls for the MCI Center: one each for hockey and basketball games and two for concerts. The seating bowls that appellants settled on included wheelchair seating in the amount of more than 1% of the total seats, as required by regulation, and they allowed for a variety of admission prices and locations in the arena. Some, but not all, of the wheelchair seating in the chosen designs would have lines of sight over standing spectators. It is undisputed that, as they evaluated their options, appellants were fully aware that the Justice Department had taken the position that "lines of sight comparable" includes sightlines over standing spectators.

        Appellees, the Paralyzed Veterans of America and several Washington-area sports enthusiasts who use wheelchairs, challenged the seating bowl designs in the district court under the ADA's private right of action. See 42 U.S.C. § 12188 (1994). They focused on Standard 4.33.3's requirements that wheelchair seating be integrated with seating for ambulatory patrons, that it be dispersed throughout the facility, and, at least as interpreted by Justice, that it provide lines of sight over spectators who can be expected to stand. Appellants responded that the seating bowls fully satisfied the integration and dispersal requirements, and that Standard 4.33.3 properly read did not require that wheelchair seating provide sightlines over standing spectators. The Department, despite its own enforcement authority in the statute, see 42 U.S.C. § 12188(b), and notwithstanding several invitations by the district judge, refused to intervene in the case. In contrast to its rather aggressive enforcement posture in other similar cases, see generally David W. Dunlap, The Disabled Present New Hurdles for Architects, N.Y. TIMES,...

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