No. 99-56221

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN LONBERG AND RUTHEE GOLDKORN,
Plaintiffs-Appellants

v.

SANBORN THEATERS, INC.;
SALTS, TROUTMAN & KANESHIRO, INC.; and
WEST COAST REALTY INVESTORS, INC.,
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

REPLY BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING APPELLANTS AND URGING REVERSAL

BILL LANN LEE
Acting Assistant Attorney General

JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-3876

TABLE OF CONTENTS

PAGE

ARGUMENT:

THE DISTRICT COURT CORRECTLY HELD THAT THE
PARTIES RESPONSIBLE FOR COMPLYING WITH
§ 303 OF THE ADA ARE NOT LIMITED TO
THOSE COVERED BY § 302 OF THE ADA 1

CONCLUSION 10

CERTIFICATE OF SERVICE

ADDENDUM

TABLE OF AUTHORITIES

CASES:

Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . 9

Department of Revenue v. ACF Indus.,

510 U.S. 332 (1994) . . . . . . . . . . . . . . . . . . . 4

Moskal v. United States, 498 U.S. 103 (1990) . . . . . . . . . 6

United States v. Days Inns of Am., Inc.,

151 F.3d 822 (8th Cir. 1998), cert. denied,

119 S. Ct. 1249 (1999) . . . . . . . . . . . . . . . . . passim

STATUTES AND REGULATIONS:

Title III of the Americans with Disabilities Act (ADA):

42 U.S.C. 12182 (Section 302) . . . . . . . . . . . . . 2, 5

42 U.S.C. 12182(a) (Section 302(a)) . . . . . . . . . passim

42 U.S.C. 12182(b) (Section 302(b)) . . . . . . . . . . . 5

42 U.S.C. 12183 (Section 303) . . . . . . . . . . . . passim

42 U.S.C. 12183(a) (Section 303(a)) . . . . . . . . . 3, 5

42 U.S.C. 12184(a) . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. 12186(a)(1) . . . . . . . . . . . . . . . . . . 6

28 C.F.R. Pt. 26, App. B, § 36.104 (1999) . . . . . . . . . . 5

- i -

LEGISLATIVE MATERIALS: PAGE

H.R. 2273, 101st Cong. (May 9, 1989):

Section 402(a) . . . . . . . . . . . . . . . . . . . . . 6-7

Section 402(b)(6) . . . . . . . . . . . . . . . . . . . 6-7

S. 933, 101st Cong.:

Section 302 (Oct. 16, 1989) . . . . . . . . . . . . . . . . 7

Section 303 (Oct. 16, 1989) . . . . . . . . . . . . . . . . 7

Section 303(a)(Oct. 16, 1989) . . . . . . . . . . . . . . . 7

Section 402(a)(May 9, 1989) . . . . . . . . . . . . . . . 6, 7

Section 402(b)(6) (May 9, 1989) . . . . . . . . . . . . . . 6

H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990) . . . 4

H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. (1990) . . 4, 8

H.R. Rep. No. 488, 101st Cong., 2d Sess. (1990) . . . . . . 8

MISCELLANEOUS:

ADA Title III Technical Assistance Manual (1993)

Section III-5.1000 . . . . . . . . . . . . . . . . . . . 8-9

- ii -

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 99-56221

JOHN LONBERG AND RUTHEE GOLDKORN,
Plaintiffs-Appellants

v.

SANBORN THEATERS, INC.;
SALTS, TROUTMAN & KANESHIRO, INC.; and
WEST COAST REALTY INVESTORS, INC.,
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

REPLY BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING APPELLANTS AND URGING REVERSAL

The United States submits this reply brief to address an argument that Appellee Salts, Troutman & Kaneshiro, Inc. (STK) has raised as an alternative ground for affirmance.

ARGUMENT

THE DISTRICT COURT CORRECTLY HELD THAT THE PARTIES
RESPONSIBLE FOR COMPLYING WITH § 303 OF THE ADA ARE
NOT LIMITED TO THOSE COVERED BY § 302 OF THE ADA

STK argues (Br. 9-14) that § 303 of the Americans With Disabilities Act (ADA), 42 U.S.C. 12183, applies only to owners, operators, lessors, or lessees of public accommodations. The district court rejected this argument (E.R. 118-120), but STK raises it as an alternative ground for affirmance (Br. 10).(1)

Although the district court erred in granting summary judgment to STK, it correctly held that the parties responsible for complying with § 303 of the ADA are not limited to those identified in § 302 of the ADA, 42 U.S.C. 12182 -- namely, owners, lessors, lessees, and operators of places of public accommodation. The district court's holding on this issue is consistent with the plain language and legislative history of the statute and with the Department of Justice's consistent interpretation of § 303.

The Eighth Circuit -- the only appellate court that has addressed the issue -- has correctly rejected the argument that § 303 covers only the owners, lessors, lessees, or operators of a facility. United States v. Days Inns of Am., Inc., 151 F.3d 822, 824-825 (1998), cert. denied, 119 S. Ct. 1249 (1999). This Court should adopt the same position.

Section 303 of the ADA provides, in relevant part:

[A]s applied to public accommodations and commercial facilities, discrimination for purposes of section 12182(a) of this title [§ 302(a) of the ADA] includes --

(1) a failure to design and construct facilities for first occupancy later than [January 26, 1993], that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter; * * *.

42 U.S.C. 12183(a) (emphasis added). Section 302(a) of the ADA states that:

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.

42 U.S.C. 12182(a) (emphasis added).

Whereas § 302's prohibitions cover only "public accommodations," Congress intended the requirements of § 303 to apply also to "commercial facilities," 42 U.S.C. 12183(a). But, as the Eighth Circuit emphasized, interpreting § 303 to apply only to defendants covered by § 302 would effectively read the term "commercial facilities" out of the statute. Days Inns, 151 F.3d at 825. Under such an interpretation, the only parties who could be held liable under § 303 for failure to design and construct accessible commercial facilities would be those who own, lease, lease to, or operate places of public accommodation. 42 U.S.C. 12182(a). No other commercial facilities would be covered. The Eighth Circuit properly rejected such an interpretation, explaining that:

The practical application of [defendant's] interpretation would leave no entity liable for violations of the new construction accessibility standards for buildings which are commercial facilities only. Accordingly, by rendering meaningless section 303's inclusion of commercial facilities, [defendant's] interpretation of section 303 would result in an inexplicable gap in coverage of buildings that Congress clearly intended to include.

Days Inns, 151 F.3d at 825. Such nullification of the term "commercial facilities" in § 303 would contravene "the 'elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.'" Department of Revenue v. ACF Indus., 510 U.S. 332, 340 (1994).

STK suggests, however, that its interpretation would not nullify § 303's reference to "commercial facilities," because the terms "commercial facilities" and "public accommodations" are "not mutually exclusive" (Br. 12-13). Although we agree that some (though not all) commercial facilities are also public accommodations, that fact does not cure the flaw in STK's interpretation. If Congress had intended § 303 to cover only those commercial facilities that also qualify as public accommodations, it would have simply omitted the reference to "commercial facilities" in § 303. Congress's inclusion of the term "commercial facilities" indicates that it intended § 303 to cover even those facilities that do not qualify as public accommodations. Days Inns, 151 F.3d at 825; see H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 116 (1990); H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. 53 (1990). Examples of commercial facilities that might not be public accommodations are factories, warehouses, and many office buildings. 28 C.F.R. Pt. 36, App. B, § 36.104 at 618 (1999).(2)

In support of its position that § 303 applies only to those parties listed in § 302(a), STK contends (Br. 9, 13-14) that § 302(a) sets forth the "general rule" of Title III of the ADA, and thus defines the coverage of all other provisions of Title III. STK has misread the statute. STK's argument apparently rests on the fact that § 302(a) is titled "General rule." 42 U.S.C. 12182(a). But § 302(a) provides the "[g]eneral rule" only for § 302, not for the other provisions of Title III. Section 302(b), 42 U.S.C. 12182(b), fleshes out the general rule of § 302(a) by providing examples of the discrimination prohibited by § 302. It is thus appropriate to read § 302(a) as defining the entities covered by § 302(b). But construing § 302(a) as providing the "[g]eneral rule" for all of Title III makes no sense, especially since other provisions of Title III are also labeled as "[g]eneral rule[s]." See 42 U.S.C. 12184(a) ("[g]eneral rule" for discrimination in certain public transportation services); 42 U.S.C. 12186(a)(1) ("[g]eneral rule" for regulations related to transportation issues). Congress would not have used the title "[g]eneral rule" for these other provisions if § 302(a) had been intended to establish the general rule for all of Title III.

STK further contends (Br. 11, 13-14) that § 303's cross-reference to § 302(a) requires the Court to interpret § 303 as covering only the entities identified in § 302. But § 303's reference to § 302(a) merely clarifies that a failure to design and construct accessible buildings is a type of prohibited "discriminat[ion] * * * on the basis of disability" 42 U.S.C. 12182(a), and does not limit the parties that are covered by § 303. Days Inns, 151 F.3d at 825. This reading of § 303 gives effect to all of the terms of the statute, including the reference to "commercial facilities." See Moskal v. United States, 498 U.S. 103, 109-110 (1990).

The evolution of the statute confirms that the Eighth Circuit's interpretation is the correct reading of § 303's reference to § 302(a). In the version of the legislation that was introduced in Congress in 1989, the provision governing new construction was a subsection of the general prohibition against discrimination on the basis of disability. See S. 933, 101st Cong. § 402(a) & (b)(6) (May 9, 1989); H.R. 2273, 101st Cong. § 402(a) & (b)(6) (May 9, 1989).(3) At that time, the general prohibition stated that "[n]o individual shall be discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, on the basis of disability." S. 933, supra, § 402(a); H.R. 2273, supra, § 402(a). The proposed legislation contained no language limiting this prohibition only to owners, operators, lessors, or lessees.

The Senate later amended the proposed legislation to move the requirements for new construction into a separate section of the bill. The new construction provision was designated as § 303, while the general prohibition against disability-based discrimination in public accommodations became § 302(a). See S. 933, 101st Cong. §§ 302, 303 (Oct. 16, 1989). As passed by the Senate, the new construction provision stated that

the term "discrimination" as used in section 302(a) shall mean a failure to design and construct [certain new] facilities * * * that are readily accessible to and usable by individuals with disabilities * * *.

Id. § 303(a). Section 302(a) still did not include any reference to owners, operators, lessors, or lessees. Id. § 302(a). This fact confirms that when initially drafted, § 303's reference to § 302(a) was merely designed to clarify that unlawful "discrimination" included a failure to design and construct new facilities to be accessible. It could not have been intended to limit the pool of potential defendants, because at the time, § 302(a) itself included no such limitation. It was not until months later that the House amended § 302 -- but, significantly, not § 303 -- to add the "owns, leases (or leases to), or operates" language that ultimately was enacted into law. See H.R. Rep. No. 485, Pt. 3, supra, at 11; H.R. Rep. No. 488, 101st Cong., 2d Sess. 30 (1990).

The legislative history further confirms that Congress did not intend to limit § 303's coverage to the entities listed in § 302. The floor debate, committee reports, and hearings show that Congress understood § 303 to cover architects and contractors (U.S. Opening Br. 11-12) -- parties who rarely own, operate or lease the facilities that they help design or construct. Limiting § 303 defendants to those parties expressly identified in § 302 would have the practical effect of excluding architects and contractors from coverage in almost all circumstances, thus contravening congressional intent.

Finally, the Department of Justice has consistently construed § 303 to cover parties that are not listed in § 302(a) of the ADA. In 1993, the Department issued a Technical Assistance Manual that identified architects and contractors as parties who may be held liable under § 303 when a new facility is not accessible to persons with disabilities. Days Inns, 151 F.3d at 826 (citing ADA Technical Assistance Manual § III-5.1000 at 46 (1993)). This interpretation is entitled to substantial deference. See Bragdon v. Abbott, 524 U.S. 624, 646 (1998); U.S. Opening Br. 14-15.

For these reasons, this Court should join the Eighth Circuit in holding that the parties subject to liability under § 303 of the ADA are not limited to owners, lessors, lessees, or operators of places of public accommodation.

CONCLUSION

For the reasons stated in this reply brief and in the United States' opening brief as amicus curiae, this Court should reverse the grant of summary judgment.

Respectfully submitted,

BILL LANN LEE
Acting Assistant Attorney General

JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-3876

CERTIFICATE OF COMPLIANCE
PURSUANT TO FED. R. APP. P. 32(a)(7)(C)
AND CIRCUIT RULE 32.1 FOR CASE NO. 99-56221

I certify that:

Pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1, the attached reply brief is monospaced, has 10.5 or fewer characters per inch, and contains 1,996 words and 264 lines of text.

GREGORY B. FRIEL
Attorney

December 17, 1999

ADDENDUM

CERTIFICATE OF SERVICE

I hereby certify that on December 17, 1999, two copies of the foregoing REPLY BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANTS AND URGING REVERSAL were served by Federal Express, next business day delivery, on each of the following attorneys:

Terence J. Kilpatrick
1720 Bancroft Street
San Diego, California 92102
(Attorney for Appellants)

Gregory F. Hurley
Kutak Rock
620 Newport Center Drive
Suite 450
Newport Beach, California 92660
(Attorney for Appellees)

I further certify that copies of the same brief were filed in accordance with Fed. R. App. P. 25(a)(2)(B)(i) by sending them to the Clerk of the United States Court of Appeals for the Ninth Circuit by Federal Express, next business day delivery, on December 17, 1999.

GREGORY B. FRIEL
Attorney

1. "Br. __" refers to the page number of STK's brief as appellee. "E.R. __" indicates the page number of Appellant's Excerpts of Record. "U.S. Opening Br. __" refers to the page number of the opening brief that the United States filed in this appeal as amicus curiae.

2. STK also suggests (Br. 13) that, as applied in this case, its interpretation would not nullify any provision of § 303 because the facility at issue here -- the Market Place Cinema -- is a place of public accommodation. Presumably, STK is arguing (at least in the alternative) that § 303's coverage should be limited to the entities identified in § 302 in cases involving public accommodations, but that no such limitation should apply in lawsuits involving only commercial facilities. STK's argument is untenable. There is simply no basis, textual or otherwise, for interpreting § 303's coverage to expand and contract from case to case. Section 303's coverage is consistent: it applies to those parties who "fail[] to design and construct" accessible facilities, 42 U.S.C. 12183(a), even if those parties do not own, operate, or lease the facilities.

3. The addendum to this brief contains excerpts of all relevant versions of these bills.