Bend the Knee dragon image from Game of ThronesAuer deference – the subject of the Supreme Court’s recent decision in Kisor v. Wilkie – has played a role in some important ADA cases, especially those concerning the line-of-sight issue for movie theaters and stadiums that Justice Kagan mentioned in her opinion. Despite this, Kisor is unlikely to have much effect on Title III jurisprudence both because of the limits on the decision, which confirmed Auer deference with a little explication, and because of the limits on Auer deference itself. Auer deference could be outcome determinative in ADA cases, but at the end of the day it is the court, not the legal principle, that matters.

Auer deference isn’t all that deferential

Kisor confirms that Auer deference is not necessarily an absolute obligation, even when Auer applies. This is consistent with ADA decisions like U.S. v. Hoyts Cinemas Corp., 380 F.3d 558 (1st Cir. 2004) in which the court observed that “deference to the agency’s view does not mean abdication.” In Hoyts Cinemas the First Circuit ultimately remanded the case to the District Court to make the fact findings necessary to decide whether the DOJ’s interpretation of the regulation was reasonable. The Second Circuit did the same thing in Meineker v. Hoyts Cinemas, 69 Fed.Appx. 19 (2nd Cir. 2003). In Moeller v. Taco Bell Corp., 2007 WL 2301778 (N.D. Cal. Aug. 8, 2007) the District Court deferred to DOJ’s interpretation of a regulation, but concluded this did no more than create a triable issue of fact regarding whether the defendant had satisfied the ADA’s requirements. Reasonableness is in the eye of the beholder, and in this case the beholder is one of hundreds of district and appellate judges who may not always agree.

Auer deference is also limited by the requirement particularly emphasized in Justice Kagan’s opinion: it applies only if a regulation is ambiguous.**  Traditionally, ambiguity exists if there are two or more reasonable interpretations. Again, what is a reasonable interpretation may depend on the judge.  In decisions like Colorado Cross Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014), U.S. v. Natl. Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001), Eckert v. Westfield Corp., 2002 WL 32986571 (E.D. Cal. Dec. 20, 2002) and Bronx Indep. Living Services v. Metro. Transportation Auth., 358 F. Supp. 3d 324 (S.D.N.Y. 2019) the courts simply disregarded the DOJ’s interpretation of its regulations because they found the regulation was not ambiguous and did not need interpreting. In Colorado Cross Disability Coalition v. Abercrombie & Fitch Co. the majority of the court found the regulation in question was not ambiguous while the dissenting judge found that it was. District court decisions based on whether a statute, rule or contract was ambiguous are among the most often overruled on appeal because three new judges often have a different idea of reasonableness. One of the easiest ways to make a DOJ interpretation irrelevant is simply to find the regulation is not ambiguous in the first place.

Between the requirement that a regulation be ambiguous for Auer deference to apply and the court’s right to ignore unreasonable agency interpretations the application of Auer deference is far from certain in any case, and so the elaborations on what Auer deference means found in Kisor are unlikely to create any change.

It isn’t Auer, it’s the court that matters when it comes to stadium seating issues.

This brings us to the most contentious area of litigation in which Auer deference seems to matters; that is, cases involving line-of-sight requirements for disabled spectators in movies and sports arenas built before the 2010 ADA standards went into effect. There are two issues. First, must disabled patrons be given a variety of viewing angles to the screen or field comparable to the variety offered other patrons, or is it sufficient that they be given seats that have a view even though the variety is less. Second, must the accessible seating be configured so that disabled users can see over standing spectators. The regulation in effect before 2010 either did, or did not, unambiguously answer these questions. The did or did not depends on the court.

In Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000) the Fifth Circuit rejected the idea that a variety of viewing angles was required by the older regulation despite the DOJ’s contrary position, finding the statute unambiguously excluded such a requirement.

To impose a viewing angle requirement at this juncture would require district courts to interpret the ADA based upon the subjective and undoubtedly diverse preferences of disabled moviegoers.
In U.S. v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003), on the other hand, the Sixth Circuit concluded that the plain language of the regulation required a comparable variety of viewing angles.
The thrust of that mandate leads us to conclude that the term “lines of sight comparable to those for members of the general public” requires that wheelchair users be afforded comparable viewing angles to those provided for the general public. Only then will wheelchair users have “equal enjoyment” with the general public.
The Court later calls on the DOJ interpretation as support for its interpretation of the regulation, but its conclusion rests on its own interpretation, not DOJ’s. A similar approach was taken by the Ninth Circuit in Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126 (9th Cir. 2003):
The question here, then, is whether it is unreasonable for DOJ to interpret “comparable line of sight” to encompass factors in addition to physical obstructions, such as viewing angle. The answer, in light of the plain meaning of the regulation both in general and as understood in the movie theater industry, is “no.”

Any reference to “plain meaning” indicates that the regulation itself is not ambiguous, which would make DOJ’s interpretation irrelevant under Auer and Kisor. When it comes to variety of angles required by the old regulation whether the statute is ambiguous or not and what it unambiguously means depends on what court makes the decision. Auer deference is a sidelight.

The situation is equally uncertain when it comes to whether accessible seating must allow for views over standing spectators. The earliest stadium case, Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 589 (D.C. Cir. 1997) was decided before Auer, but a quote from the court’s lengthy discussion of how much deference was owed to the DOJ materials interpreting the ADAAG sums up the problem:

Under the circumstances, we think the district judge was more than justified in concluding there was a good deal of wiggle room in the degree of compliance contemplated by the regulation and manual, and that he, as a judge sitting in equity, had ample discretion to fashion the remedial order that he did.
Here the court clearly believes the regulation is ambiguous and that DOJ’s interpretation was no so specific it constrained the the judge in crafting a solution. As a result it was the ambiguity, not the interpretation, that really mattered.

In Caruso v. Blockbuster-Sony Music Ent. Ctr. at Waterfront, 193 F.3d 730 (3d Cir. 1999) the Third Circuit found the regulation was ambiguous, but that because it did not explicitly include a requirement of views over standing spectators DOJ’s interpretation would be ignored as a substantive additional requirement. In Miller v. California Speedway Corp., 536 F.3d 1020 (9th Cir. 2008) the Ninth Circuit took the opposite view. It found the regulation was ambiguous but then relied on DOJ’s interpretation to impose a view over standing spectators requirement, disagreeing with the conclusion in Caruso that the interpretation was somehow an expansion of the regulation. The distinction between “interpretation” of a regulation by DOJ and making an addition to the regulation can be determinative, but it depends on the court that makes the distinction.

Auer deference applies only after the court finds (a) the regulation is ambiguous, (b) DOJ has interpreted, rather than added to the regulation, and (c) DOJ’s interpretation is reasonable. The variety of outcomes in decisions that consider deference to DOJ interpretations demonstrates that it is less the legal principle than the individual judge or group of appellate judges that matters. In this as in many other aspects of ADA litigation it is just as important to know about the court as it is to know the law in trying to predict how a case will be decided.

** The proper application of Auer deference is explained in a pair of cases. In Bronx Indep. Living Services v. Metro. Transportation Auth., 358 F. Supp. 3d 324 (S.D.N.Y. 2019) the Court agreed with DOJ’s position, but wrote “because the Court independently arrives at the conclusion that § 37.43(a)(1) applies to the Middletown Road Station renovations, it does not address whether Auer deference is warranted here.” In Eckert v. Westfield Corp., 2002 WL 32986571 (E.D. Cal. Dec. 20, 2002) the Court disagreed with DOJ’s interpretation of the unambiguous statute and therefore ignored it: “Thus, to the extent that the manuals’ interpretation could be read to exempt storefront signs that have been in place for longer than six months, it is inconsistent with the regulations and I can give it no deference.”