United States v. Amc Entertainment ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-55390
v.
 D.C. No.
CV-99-01034-FMC
AMC ENTERTAINMENT, INC.;
AMERICAN MULTI-CINEMA, INC., OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
November 7, 2007—Pasadena, California
Filed December 5, 2008
Before: Kim McLane Wardlaw, Carlos T. Bea, and
N. Randy Smith, Circuit Judges.
WARDLAW, K., delivered the opinion of the Court as to
Parts I, II.A, II.B, and III, in which BEA, C., and SMITH,
N. R., joined. SMITH, N. R., delivered the opinion of the
Court as to Part II.C, in which BEA, C., joined. WARDLAW,
K., filed a dissenting opinion as to Part II.C.
15935
UNITED STATES v. AMC ENTERTAINMENT, INC. 15939
COUNSEL
Laura M. Franze (argued), M. Brett Burns, Edward P. Laza-
rus, and Michael C. Small, Akin Gump Strauss Hauer & Feld
LLP, Los Angeles, California, and Dallas, Texas, for the
defendants-appellants.
Gregory B. Friel (argued), Wan J. Kim, and Jessica Dunsay
Silver, Department of Justice, Washington, D.C., for the
plaintiff-appellee.
OPINION
WARDLAW, Circuit Judge:
In this action the United States Department of Justice seeks
to enforce Title III of the Americans with Disabilities Act
(“ADA”), 48 U.S.C. §§ 12181-89, so as to require AMC
Entertainment, Inc. and American Multi-Cinema, Inc. (collec-
tively, “AMC”) to provide “full and equal enjoyment” to dis-
abled moviegoers in ninety-six stadium-style multiplexes
located across the nation. Liability is settled, as our circuit has
definitively determined that the pertinent guideline drafted by
the Architectural and Transportation Barriers Board (the “Ac-
cess Board”) and adopted by the Attorney General as part of
the “Standards for Accessible Design,” 28 C.F.R. pt. 36, app.
A, § 4.33.3 (“§ 4.33.3”), requires that theaters provide “a
viewing angle for wheelchair seating within the range of
angles offered to the general public in the stadium-style
seats.” Or. Paralyzed Veterans of Am. v. Regal Cinemas, Inc.,
339 F.3d 1126, 1133 (9th Cir. 2003), cert. denied, 542 U.S.
937 (2004). Correctly anticipating our holding in Oregon Par-
alyzed Veterans, the district court held that AMC’s existing
facilities violate § 4.33.3’s light of sight requirement, awarded
summary judgment to the government, and subsequently
issued a comprehensive remedial order. United States v. AMC
15940 UNITED STATES v. AMC ENTERTAINMENT, INC.
Entm’t, Inc., 232 F. Supp. 2d 1092 (C.D. Cal. 2002). The
“Order Re: Line of Sight Remedies” sets forth a series of
detailed injunctive orders specifying compliance with § 4.33.3
for the ninety-six affected AMC multiplexes containing 1,993
auditoria throughout the nation. AMC timely appeals.
Because the injunction requires modifications to multi-
plexes that were designed or built before the government gave
fair notice of its interpretation of § 4.33.3, the injunction vio-
lates due process—and to that extent, its issuance was an
abuse of discretion. A two-judge majority of this panel also
holds that the district court abused its discretion in neglecting
comity concerns pertaining to the Fifth Circuit’s existing, less
stringent interpretation of § 4.33.3, while the dissenting judge
would affirm the scope of the nationwide injunction. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and
remand for further proceedings.
I. BACKGROUND
A. Stadium Seating
In the mid-1990s, stadium seating in movie theaters revolu-
tionized the way Americans viewed movies. Rather than
cramming seats together on a sloped floor, causing movie-
goers to be at the mercy of a taller patron choosing the seat
in front of them, the staggered elevation of stadium seating
“virtually suspend[ed] the moviegoer in front of the wall-to-
wall screen.” Along with the other major theater companies,
AMC constructed scores of theaters nationwide employing
the new layout. Promoting its theaters, AMC invited the pub-
lic to “Experience the Difference.” The Department of Justice
claimed that one group could not: the disabled.
The first iteration of stadium-seating theaters, initially con-
structed by AMC in 1995, posed a particular problem for
wheelchair-bound patrons. These complexes offered a hybrid
of traditional sloped floor seating closest to the screen and sta-
UNITED STATES v. AMC ENTERTAINMENT, INC. 15941
dium seating accessible by stairs. Moviegoers would enter the
theater in the front, right under the screen. Once entering,
patrons would first have the option (rarely, if ever, taken) of
sitting in the few rows of traditional sloped-floor seating clos-
est to the screen. Or if they preferred (and were able), they
could bypass these first rows and climb stairs to choose a seat
within the stadium-seating section of the theater. The impossi-
bility of the latter option relegated disabled patrons to the
least desirable seats in the rows closest to the screen.
Complaints from wheelchair-bound customers began
immediately. The mother of a disabled viewer complained to
AMC that their seats in the second row “made it impossible
to see this movie at such a close range.” A disabled Missou-
rian explained in more detail his experience while sitting in
the limited wheelchair seating offered by AMC:
[My] eagerness quickly turned to anger and then
despair as I found myself in a brand new theater
where, from a viewing and comfort standpoint, I was
worse off than ever before. While your theater seats
appear very comfortable and positioned to maximize
the theater goer’s [sic] view of the screen, my wheel-
chair has a rigid frame and straight back. From my
vantage point on the far right side of the second row
from the screen I was forced to endure two hours of
neck wrenching discomfort as I struggled to find a
comfortable way to view the entire screen. . . . If not
the least desirable location in the theater, the wheel-
chair area must be a close second.
AMC apparently responded to customer complaints and
began to modify its design for future theaters. Later iterations
of the multiplex permitted entry in the mid-section of the
auditorium, allowing for wheelchair seating in the center of
the cinema. By 2001, AMC offered full stadium seating for all
patrons in its newly constructed theaters. Nevertheless, the
initial spurt of theater construction specked communities with
15942 UNITED STATES v. AMC ENTERTAINMENT, INC.
theaters restricting wheelchair seating to the very front of the
auditorium.
B. The ADA and § 4.33.3
In response, the DOJ, along with numerous private plain-
tiffs, brought a series of nationwide suits against various the-
ater companies alleging that the theaters violated Title III of
the ADA, 42 U.S.C. § 12182, by placing wheelchair seating
in the front rows of their new stadium complexes.
Title III of the ADA generally provides that “[n]o individ-
ual 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 . . . .” 42 U.S.C. § 12182(a). To flesh
out the details of this general rule, Congress charged the
Attorney General with the task of promulgating regulations
clarifying how public accommodations must meet these statu-
tory obligations. 42 U.S.C. § 12186(b). These regulations
were to be consistent with the minimum guidelines issued by
the Access Board. 42 U.S.C. § 12186(c). Twenty-five individ-
uals comprise the Access Board, thirteen appointed by the
president, and twelve representing government departments or
agencies. 29 U.S.C. § 792(a)(1). In January 1991, the Access
Board proposed accessibility guidelines and provided a notice
and comment period to evaluate them. 56 Fed. Reg. 2296(Jan. 22, 1991). Later that year, the Access Board issued its
final ADA Accessibility Guidelines. 56 Fed. Reg. 35,408(July 26, 1991). The Attorney General adopted these guide-
lines as the “Standards for Accessible Design.” 28 C.F.R. pt.
36, app. A.
Section 4.33.3 of the Standards addresses wheelchair seat-
ing in assembly areas. It reads:
Wheelchair areas shall be an integral part of any
fixed seating plan and shall be provided so as to pro-
UNITED STATES v. AMC ENTERTAINMENT, INC. 15943
vide people with physical disabilities a choice of
admission prices and lines of sight comparable to
those for members of the general public. They shall
adjoin an accessible route that also serves as a means
of egress in case of emergency. At least one compan-
ion fixed seat shall be provided next to each wheel-
chair seating area. When the seating capacity
exceeds 300, wheelchair spaces shall be provided in
more than one location. Readily removable seats
may be installed in wheelchair spaces when the
spaces are not required to accommodate wheelchair
users.
EXCEPTION: Accessible viewing positions may be
clustered for bleachers, balconies, and other areas
having sight lines that require slopes of greater than
5 percent. Equivalent accessible viewing positions
may be located on levels having accessible egress.
28 C.F.R. pt. 36, app. A, § 4.33.3 (some emphasis removed).
Because this regulation pre-dated stadium seating in movie
theaters by nearly four years, it did not expressly address
whether “lines of sight comparable to those for members of
the general public” meant that wheelchair seating must pro-
vide a similar viewing angle for disabled patrons. It was not
until 1999 that the Access Board publicly noted that the DOJ
interpreted this provision to mandate placing wheelchair seat-
ing areas in the stadium-seating section that “provide viewing
angles that are equivalent to or better than the viewing angles
. . . provided by 50 percent of the seats in the auditorium.” 64
Fed. Reg. 62,248, 62,278 (Nov. 16, 1999). In 1999, the
Access Board concluded that it “is considering whether to
include specific requirements in the final rule that are consis-
tent with DOJ’s interpretation of 4.33.3 to stadium-style the-
aters. The Board is also considering whether to provide
additional guidance on determining whether lines of sight are
‘comparable’ in assembly areas . . . .” Id. As of this date, the
Access Board has failed to do so.
15944 UNITED STATES v. AMC ENTERTAINMENT, INC.
C. The Litigation History of § 4.33.3
While “lines of sight” was a phrase long familiar to parties
involved in the movie theater industry, its precise meaning
shifted depending upon the particular context and who was
using it. Internal correspondence within the industry featured
recognition that, at times, “lines of sight” meant viewing
angle to the screen. At other times, the movie industry under-
stood “comparable lines of sight” to require only unobstructed
views of the screen. Indeed, before the D.C. Circuit, the gov-
ernment insisted that “there was no uniformly understood
construction of the language prior to the time it was picked up
by the Board and the Department [of Justice].” Paralyzed Vet-
erans of Am. v. D.C. Arena L.P., 117 F.3d 579, 583 (D.C. Cir.
1997).
Because “lines of sight comparable” lacked a concrete
meaning, and the Access Board and the DOJ failed to provide
clear direction as to the precise meaning of § 4.33.3, litigants
turned to courts throughout the country to determine the regu-
lation’s breadth. Plagued by an opaque regulation and mini-
mal legislative history, however, the various circuits did not
reach a uniform understanding as to what exactly § 4.33.3
required of theater companies building stadium-seating com-
plexes.
i. The Unobstructed View Interpretation
The first circuits to parse § 4.33.3 did not contemplate the
comparable viewing angles interpretation currently adopted
by the government. Rather, plaintiffs in the initial round of
cases urged the courts to understand the provision as requiring
that public accommodations provide disabled spectators only
with an unobstructed view to a stage or screen. Unlike the
later advocated comparable viewing angles interpretation, the
Access Board had anticipated the issue of unobstructed views.
The Access Board had requested comment “on whether full
lines of sight over standing spectators . . . should be required.”
UNITED STATES v. AMC ENTERTAINMENT, INC. 15945
56 Fed. Reg. 2296, 2314 (Jan. 22, 1991). After the comment
period, however, the Access Board did not expressly address
the issue of unobstructed views in the language of § 4.33.3.
From the opening salvos of litigation, courts admitted their
confusion as to what exactly “lines of sight” meant. In Caruso
v. Blockbuster-Sony Music Entm’t Ctr. at Waterfront, 968 F.
Supp. 210 (D. N.J. 1997), rev’d in part, 193 F.3d 730 (3d Cir.
1999), plaintiffs brought suit against a concert hall for failure
to provide wheelchair bound patrons an unobstructed view to
the stage. The district court, when asked to assess whether
§ 4.33.3 required this unobstructed view, expressed its frustra-
tion that the regulation, even when read in conjunction with
secondary materials, “suffers from a vagueness not cured by
interpretive manuals or an enforcement history which would
put meat on the bones of the concept of enhanced sight lines.”
Id. at 216. Absent further legislative direction, the district
court could not read the language of § 4.33.3 to impose a
requirement that disabled viewers enjoy an enhanced line of
sight.
Writing for the Third Circuit, then-Judge Alito agreed with
the district court’s estimation “that the ‘lines of sight’ lan-
guage is ambiguous.” Caruso v. Blockbuster-Sony Music
Entertainment Centre at Waterfront, 193 F.3d 730, 733 (3d
Cir. 1999). The regulation’s ambiguity, in Judge Alito’s view,
allowed for two conflicting understandings (neither of which
the government presently advocates) of what § 4.33.3 man-
dates: 1) dispersal of seating for disabled viewers throughout
the auditorium; or 2) vertically enhanced lines of sight allow-
ing wheelchair-bound patrons to view the stage over standing
audience members. After reviewing the notice and comment
period for discussion on the unobstructed view theory, the
Third Circuit affirmed the district court, concluding that
§ 4.33.3 “does not reach the issue of sightlines over standing
spectators.” Id. at 736.
This placed the Third Circuit slightly out of line with the
D.C. Circuit’s opinion in Paralyzed Veterans of America v.
15946 UNITED STATES v. AMC ENTERTAINMENT, INC.
D.C. Arena L.P., which had affirmed the district court’s read-
ing of § 4.33.3 to require that some wheelchair seating pro-
vide an unobstructed view over standing spectators at
Washington Wizards and Capitals games. 117 F.3d at 580.
While the circuits reached different conclusions as to
§ 4.33.3’s exact requirements, the D.C. Circuit and the Third
Circuit did agree that the regulation was hardly a model of
clarity. See id. at 583 (noting that when applied to the issue
of standing spectators, the regulation is “ambiguous”).
ii. The Viewing Angle Interpretation
In 1998, the government filed an amicus brief in the Dis-
trict Court for the Western District of Texas that, for the first
time, publicly advocated the litigation position it has taken in
this case and others throughout the nation: that § 4.33.3
requires movie theaters to provide wheelchair bound patrons
with comparable ‘viewing angles’ to the screen as non-
disabled persons. Lara v. Cinemark USA, Inc., No. EP-97-
CA-502-H, 1998 WL 1048497, at *2 (W.D. Tex. August 21,
1998), rev’d, 207 F.3d 783 (5th Cir. 2000); see also United
States v. Cinemark USA, Inc., 348 F.3d 569, 583 & n.10 (6th
Cir. 2003) (accepting government’s representation that its
Lara amicus brief represented the first widely published docu-
ment expressly announcing that § 4.33.3 required comparable
viewing angles). The government explained that the regula-
tory language, as well as the overarching purpose of the ADA,
compelled an understanding of § 4.33.3 that included a com-
parable viewing angle requirement. This new theory, how-
ever, failed to produce a uniform interpretation among the
circuit courts of appeal. Ambiguity in § 4.33.3 still hamstrung
the various courts in creating a coherent nationwide interpre-
tation of the regulation.
The Fifth Circuit, the first appellate court to consider the
viewing angle interpretation, rejected the theory as contrary to
the use of similar language in other regulatory contexts. Lara,
207 F.3d at 789. Rather, the court concluded that the regula-
UNITED STATES v. AMC ENTERTAINMENT, INC. 15947
tion merely requires that the theater provide an unobstructed
view of the screen. The Fifth Circuit did not reach this result
without joining the Third and D.C. Circuits in criticizing the
lack of transparency in the regulation: “The text of section
4.33.3 provides little guidance as to whether theaters must
provide wheelchair-bound moviegoers with comparable view-
ing angles.” Id. at 788.
In 2003, our circuit accepted the viewing angle interpreta-
tion the Fifth Circuit had rejected, concluding that § 4.33.3
does require comparable viewing angles for disabled patrons.
Oregon Paralyzed Veterans, 339 F.3d at 1133. We did not
reach this result, however, by analyzing the plain meaning of
the regulation. Rather, we carefully phrased the issue as one
of proper deference to an agency interpretation of its own reg-
ulation:
The question here, then, is whether it is unreason-
able for DOJ to interpret “comparable lines of sight”
to encompass factors in addition to physical obstruc-
tions, 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.”
Id. at 1132 (emphasis added). Deferring to the DOJ’s interpre-
tation, we held that § 4.33.3 required theaters to provide “a
viewing angle for wheelchair seating within the range of
angles offered to the general public in the stadium-style
seats.” Id. at 1133.
The Sixth Circuit joined our conclusion that § 4.33.3
required comparable viewing angles in United States v. Cine-
mark USA, Inc. 348 F.3d at 575. Reviewing the regulation,
the court concluded that the “criteria for evaluating similarity,
moreover, while not explicit in the regulation, doubtless
include viewing angle.” Id. at 576. Reading the regulation in
any other manner would, in the Sixth Circuit’s estimation,
15948 UNITED STATES v. AMC ENTERTAINMENT, INC.
eviscerate the ultimate goal of the statutory scheme: to pro-
vide the disabled with equal enjoyment of public accommoda-
tions. Id. Moreover, as did we, the Sixth Circuit deferred to
the DOJ’s interpretation of its own regulation. Id. at 578.
While technically dicta, the Sixth Circuit did hint at its
views regarding an eventual remedy. Cinemark had presented
evidence that it had relied upon state building codes previ-
ously certified by the federal government when constructing
its stadium-seating multiplexes.1 Id. at 581. While the court
rejected an estoppel argument on the basis of the permits, it
reasoned:
Cinemark’s reliance on TAS and the government’s
statements with respect to the state building code
certification process weigh strongly in favor of mak-
ing any relief that the district court grants the gov-
ernment on remand apply only on a prospective
basis. We do not go so far as to hold that any relief
must be prospective to comport with due process, but
note that, given the following facts, prospective
relief will often be most appropriate.
Id. With these less than subtle instructions, the Sixth Circuit
remanded the case to the district court.
The First Circuit, after noting that “[s]imilar cases have
divided the circuits,” joined us and the Sixth Circuit in con-
cluding that § 4.33.3 mandates comparable viewing angles.
United States v. Hoyts Cinemas Corp., 380 F.3d 558, 561, 566
(1st Cir. 2004). Nevertheless, the court also acknowledged
that “[t]here 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,
1
Likewise, AMC presented evidence to the district court that AMC had
received state building code certifications for its stadium-seating theaters
in both Texas and Florida.
UNITED STATES v. AMC ENTERTAINMENT, INC. 15949
and that the belated amicus brief in Lara and the differing
conclusions of the courts have impaired predictability.” Id. at
573. These factors seemed to militate, in the court’s view,
against retroactive application of this requirement. Id. at 573-
74.
After the First Circuit’s opinion, the tally of the different
circuits’ opinions as to § 4.33.3 was as follows: in the Third
Circuit § 4.33.3 did not even require an unobstructed view; in
the D.C. Circuit § 4.33.3 mandated that some seats had an
unobstructed view; in the Fifth Circuit the provision required
an unobstructed view but not comparable viewing angles; and
in the First, Sixth and Ninth Circuits § 4.33.3 mandated some
sort of comparable viewing angle. Three of the circuits con-
sidering the issue credited the DOJ’s interpretation, but two
of those three expressed skepticism as to the possibility of
retroactive relief. All circuits considering § 4.33.3 found com-
mon ground on the proposition that the regulation was vague
or ambiguous. See also Miller v. Cal. Speedway Corp., 536
F.3d 1020, 1028-29, 1033 (9th Cir. 2008) (agreeing that
“ ‘lines of light’ in § 4.33.3 is subject to several interpreta-
tions,” detailing the various interpretations, and ultimately
concluding that “the DOJ’s interpretation of its own regula-
tion is reasonable and therefore entitled to substantial defer-
ence”).
D. The Proceedings Against AMC in the District Court
As the courts grappled with the ambiguous provision, and
before we issued our opinion in Oregon Paralyzed Veterans,
the DOJ brought this action against AMC for violating
§ 4.33.3 by failing to provide disabled patrons with compara-
ble viewing angles.2
2
Because Oregon Paralyzed Veterans is the law in our Circuit, AMC
does not appeal the merits of the district court’s decision below, but only
the remedial order.
15950 UNITED STATES v. AMC ENTERTAINMENT, INC.
Granting the DOJ’s motion for summary judgment, the dis-
trict court refused to “interpret § 4.33.3 to be static and inflex-
ible,” rejected the Fifth Circuit’s interpretation in Lara, and
concluded that the provision imposed a comparable viewing
angle requirement. The court’s review of industry literature
and AMC correspondence made it “clear to the Court that
AMC understood—or should have understood—that the
meaning of ‘lines of sight’ in the context of motion picture
theaters referred not only to possible obstructions but also to
viewing angles.”
To address the infraction, the district court accepted a pro-
posed remedial order crafted by the DOJ detailing how
AMC’s ninety-six theaters, containing a total of 1,993
stadium-style auditoria, must be retrofitted to comply with
§ 4.33.3. Over AMC’s objection, the district court did not
exempt those theaters built before the date when AMC claims
it could have reasonably known of the comparable viewing
angles requirement. In fact, those first-generation theaters
built in 1995 require the most significant retrofitting, includ-
ing installing ramps, removing mini-risers and constructing
new seats, whereas newer theaters, having been altered to
respond to customer complaints, require less retrofitting.
AMC also argued that any theater located in the Fifth Circuit
should be exempted from the remedial order because the Fifth
Circuit had held that § 4.33.3 did not require comparable
viewing angles. Rejecting this argument, the district court
held that its jurisdiction over all AMC theaters allowed it to
fashion relief regardless of circuit boundaries.
II. DISCUSSION
A. Standard of Review
We review the district court’s injunction in this matter for
an abuse of discretion or an erroneous application of legal
principles. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92
F.3d 1486, 1493 (9th Cir. 1996). A district court has consider-
UNITED STATES v. AMC ENTERTAINMENT, INC. 15951
able discretion in granting injunctive relief and in tailoring its
injunctive relief. However, a trial court abuses its discretion
by fashioning an injunction which is overly broad. Lamb-
Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th
Cir. 1991).
B. The District Court Abused Its Discretion and Violated
AMC’s Due Process Rights By Requiring Retrofitting of
All Theaters Regardless of Their Date of Construction
[1] Due process requires that the government provide citi-
zens and other actors with sufficient notice as to what behav-
ior complies with the law. Liberty depends on no less:
“[B]ecause we assume that man is free to steer between law-
ful and unlawful conduct, we insist that laws give the person
of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly.” Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972). Put more collo-
quially, “[t]hose regulated by an administrative agency are
entitled to know the rules by which the game will be played.”
Ala. Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030, 1035 (D.C.
Cir. 1999) (internal quotation marks omitted). AMC claims it
was not told the rules of building stadium-seating theaters
until, at the earliest, the government published its view of
§ 4.33.3 in its Lara amicus brief. We agree.
[2] Examining the conflicting decisions reached by various
courts, see supra Part I.C, it is clear that the text of § 4.33.3
did not even provide our colleagues, armed with exceptional
legal training in parsing statutory language, a “reasonable
opportunity to know what is prohibited”—let alone those of
“ordinary intelligence.” Grayned, 408 U.S. at 108. The cir-
cuits are split as to whether § 4.33.3 mandates comparable
viewing angles, an unobstructed view, or merely dispersed
seating options. Indeed, the government itself did not publicly
endorse the viewing angle interpretation among these views
until it filed a relatively obscure amicus brief in 1998 in the
district court for the Western District of Texas. Amid this
15952 UNITED STATES v. AMC ENTERTAINMENT, INC.
morass of litigation, we decline to hold that a person of ordi-
nary intelligence should have known, when initiating a con-
struction project years prior to any public announcement from
the relevant agency, that § 4.33.3 was susceptible only to the
interpretation the government now champions. Retroactive
application of the viewing angle interpretation is appropriate
only as of the date on which AMC received constructive
notice that the government viewed § 4.33.3 as incorporating
a comparable viewing angles requirement and intended to
enforce that requirement. See Forbes v. Napolitano, 236 F.3d
1009, 1011 (9th Cir. 2000) (“Although only constructive
rather than actual notice is required, individuals must be given
a reasonable opportunity to discern whether their conduct is
proscribed so they can choose whether or not to comply with
the law.”).
We share the First Circuit’s frustration that the government
could have solved this problem, without time- and cost-
consuming litigation, by merely clarifying § 4.33.3 through
amendment or some other form of public pronouncement:
“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 . . . but also angles of sight.” Hoyts Cine-
mas, 380 F.3d at 566. The government has had ample oppor-
tunity throughout the stadium-seating era to update the
regulation to respond to the overhaul of the nation’s movie-
theaters. As late as 1999, the Access Board indicated that it
was still “considering whether to include specific require-
ments in the final rule that are consistent with DOJ’s interpre-
tation of 4.33.3 to stadium-style movie theaters.” 64 Fed. Reg.
62,248, 62,278 (Nov. 16, 1999). No new rule was forthcom-
ing. Again, in April of 2002, the Access Board published a
new proposed draft regulation that included a viewing angle
requirement. See United States v. Hoyts Cinemas Corp., 256
F. Supp. 2d 73, 92 (D. Mass. 2003), vacated, 380 F.3d 558(1st Cir. 2004). This proposal was never formally accepted.
When Regal Cinemas sought certiorari from the Supreme
UNITED STATES v. AMC ENTERTAINMENT, INC. 15953
Court to resolve the circuit split between the Ninth and Fifth
Circuits, the Solicitor General of the United States repre-
sented to the Supreme Court that review was not necessary
because the DOJ planned to issue new regulations to resolve
the split: “There is no need for this Court to exercise its cer-
tiorari jurisdiction to address an issue of regulatory interpreta-
tion that is presently being addressed directly by the relevant
regulatory bodies themselves.” Brief for the United States as
Amicus Curiae Supporting Respondents, Regal Cinemas, Inc.
v. Stewmon, 542 U.S. 937 (2004) (No. 03-641), 2004 WL
1205203, at *8. Despite this representation to the Court, made
now over four years ago, § 4.33.3 has not been replaced with
something more specific.3 We decline to require AMC to have
determined the precise meaning of the regulation when the
government did not do so.
The government counters that, regardless of any ambiguity
in § 4.33.3, full retroactive application is appropriate pres-
ently because it can point to internal correspondence within
AMC and throughout the movie industry at large suggesting
that theater companies understood “lines of sight” to incorpo-
rate a viewing angle requirement.4 We are skeptical that the
meaning of a federal regulation can “rest on the subjective
interpretations of discrete, affected persons and their legal
advisors.” Florida v. Long, 487 U.S. 223, 237 (1988). When
presented with the same argument from the government, the
First Circuit reasoned persuasively: “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
3
Compounding the confusion regarding the meaning of § 4.33.3 is that
AMC received pre- and post-construction approval for their stadium-
seating theaters from multiple states, whose own programs had been certi-
fied by the DOJ as “meeting or exceeding” the federal requirements pro-
mulgated by the Access Board.
4
As aforementioned, this argument runs counter to the government’s
1997 representation to the D.C. Circuit that “lines of sight comparable”
means “unobstructed view.” Paralyzed Veterans of America v. D.C. Arena
L.P., 117 F.3d 579, 583 (D.C. Cir. 1997).
15954 UNITED STATES v. AMC ENTERTAINMENT, INC.
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 enti-
tled to provide the minimum that the law required of them.”
Hoyts Cinemas, 380 F.3d at 573. In other words, the capacity
of in-house counsel or others to read correctly legislative tea-
leaves does not alleviate the government from its obligation
to fashion coherent regulations that put citizens of “ordinary
intelligence” on notice as to what the law requires of them.
[3] “The due process clause . . . guarantees individuals the
right to fair notice of whether their conduct is prohibited by
law.” Forbes v. Napolitano, 236 F.3d at 1011. At no point
before the 1998 filing of the Lara amicus brief was AMC on
notice that the regulators understood § 4.33.3 to incorporate a
comparable viewing angles requirement. The requirement of
fair notice precludes the district court from requiring retrofit-
ting of theaters built before the government announced its
interpretation of § 4.33.3. Therefore, we remand this case to
the district court to determine the specific date—which can be
no earlier than the date on which the government filed the
Lara amicus brief—on which AMC could have fairly dis-
cerned the settled meaning of the § 4.33.3, and to refashion
the remedial order accordingly.
* * *
Part II.C:
SMITH, N. R., Circuit Judge with whom BEA, Circuit Judge
joins:
C. The District Court Abused Its Discretion In Issuing A
Nationwide Injunction That Included The Fifth Circuit.
[4] Once a court has obtained personal jurisdiction over a
defendant, the court has the power to enforce the terms of the
injunction outside the territorial jurisdiction of the court,
UNITED STATES v. AMC ENTERTAINMENT, INC. 15955
including issuing a nationwide injunction. See Steele v.
Bulova Watch Co., 344 U.S. 280, 289 (1952) (noting that “the
District Court in exercising its equity powers may command
persons properly before it to cease or perform acts outside its
territorial jurisdiction”); United States v. Oregon, 657 F.2d
1009, 1016 n.17 (9th Cir. 1981) (“When a district court has
jurisdiction over all parties involved, it may enjoin commis-
sion of acts outside of its district.”). However, when exercis-
ing its equitable powers to issue an injunction, a court must
be mindful of any effect its decision might have outside its
jurisdiction. Courts ordinarily should not award injunctive
relief that would cause substantial interference with another
court’s sovereignty. Steele, 344 U.S. at 289.
The parties do not dispute that AMC owns and operates
nearly 100 stadium movie theaters scattered throughout eigh-
teen different states, including 15 theaters in the geographical
area of the United States Court of Appeals for the Fifth Cir-
cuit. Here, the United States District Court for the Central
District Court of California imposed a nationwide injunction
affecting movie theaters in the Fifth Circuit (Texas), despite
AMC’s objection. In Lara, the Fifth Circuit reviewed the
same authority that the district court reviewed here and the
same authority that we reviewed in Regal Cinemas and most
recently in Miller v. California Speedway Corp., 536 F.3d
1020 (9th Cir. 2008). After such review, the Fifth Circuit
interpreted § 4.33.3 to require theaters to provide an unob-
structed view for disabled spectators but not to require com-
parable viewing angles for wheelchair bound patrons.
In Regal Cinemas, we specifically rejected the Fifth Circuit
holding in Lara, and held that the Fifth Circuit’s reading of
the regulation was too narrow. We then held that theaters in
the Ninth Circuit must provide comparable viewing angles for
disabled patrons. The district court applied our Regal Cine-
mas precedent issuing the injunction. The injunction essen-
tially requires these Texas theaters to be consistent with the
Central District of California’s understanding of the require-
15956 UNITED STATES v. AMC ENTERTAINMENT, INC.
ment imposed by § 4.33.3, rather than the Fifth Circuit’s read-
ing of the same provision.
Based on this conflict, AMC contends that principles of
comity should constrain the district court from enjoining the-
aters within the Fifth Circuit to provide comparable viewing
angles.5 We agree. We also find that AMC did not waive this
argument when it complied with a district court order (which
it opposed) and submitted proposed remedial orders for these
theaters to assist in formulating the injunction.
[5] This circuit has yet to address this specific comity issue.
However, it goes without saying that we expect our pro-
nouncements will be the final word within the Ninth Circuit’s
geographical area, subject only to en banc or Supreme Court
review. See Parfums Givenchy, Inc. v. Drug Emporium, Inc.,
38 F.3d 477, 482 (9th Cir. 1994). Our federal judicial system
requires that when the Supreme Court issues an opinion, its
pronouncements become law of the land. See Hart v. Massa-
nari, 266 F.3d 1155, 1171 (9th Cir. 2001). Similarly, when
the Ninth Circuit or any of its coequal circuit courts issue an
5
The dissent asserts that AMC did not raise the doctrine of comity.
However, AMC raised the issue to the district court in the summary judg-
ment proceedings. The district court rejected AMC’s argument finding
that “The Lara decision imposed no legal obligation on AMC. . . . There-
fore, AMC would not be faced with a choice between complying with this
Court’s orders and the Lara court’s orders.” United States v. AMC Enter-
tainment, Inc., 232 F. Supp. 2d 1092, 1115 (C.D. Cal. 2002). Appellee
argues that AMC waived its argument that the remedial order should have
excluded the Fifth Circuit, because it did not argue it in the remedial stage.
However, one would not expect AMC to continue to raise issues that the
court already determined. Further, even if AMC were required to raise this
specific issue in its remedies briefing and did not, it does not preclude this
court’s review of AMC’s comity contention. This court always has discre-
tion to consider comity sua sponte. See Stone v. City and County of San
Francisco, 968 F.2d 850, 855-56 (9th Cir. 1992); see also Church of
Scientology of California v. United States Dep’t. of Army, 611 F.2d 738,
749 (9th Cir. 1979) (“When considering issues raised by the comity doc-
trine . . . courts are not bound by technicalities.”).
UNITED STATES v. AMC ENTERTAINMENT, INC. 15957
opinion, the pronouncements become the law of that geo-
graphical area. See Zuniga v. United Can Co., 812 F.2d 443,
450 (9th Cir. 1987) (noting that district courts are “bound by
the law of their own circuit,” and “are not to resolve splits
between circuits . . . .”) (citations omitted). In instances where
the circuits do not agree on the interpretation of a statute or
a regulation, those disagreements should be resolved by the
Supreme Court.
[6] Based upon this judicial hierarchy, we must be mindful
of the decisions of our sister circuits, when we make decisions
in cases affecting litigants’ legal rights and remedies in the
geographic boundaries of their circuits. For example, in Rail-
way Labor Executives’ Ass’n v. I.C.C., 784 F.2d 959 (9th Cir.
1986), we held that a party was not collaterally estopped from
relitigating the scope of a federal regulation due to the Tenth
Circuit’s decision on the issue. We stated that “[t]he courts do
not require an agency of the United States to accept an
adverse determination of the agency’s statutory construction
by any of the Circuit Courts of Appeals as binding on the
agency for all similar cases throughout the United States.” Id.
at 964. We did note, however, that the review would have
limited geographic impact: “[i]t is standard practice for an
agency to litigate the same issue in more than one circuit and
to seek to enforce the agency interpretation selectively on per-
sons subject to the agency’s jurisdiction in those circuits
where its interpretation has not been judicially repudiated.”
Id. (emphasis added).
We similarly considered the effect of an injunction that
“ ‘would impugn foreign law’ or be an ‘interference with the
sovereignty of another nation’ ” in Las Palmas Food Co. v.
Ramirez & Feraud Chili Co., 146 F. Supp. 594, 602 (S.D.
Cal. 1956), adopted and summarily aff’d, 245 F.2d 874 (9th
Cir. 1957). There, we adopted as our own a district court deci-
sion enjoining American citizens from appropriating the trade
name of an American corporation for use in Mexico. See id.
at 598-99. In Las Palmas, the plaintiff asserted a claim under
15958 UNITED STATES v. AMC ENTERTAINMENT, INC.
the Lanham Act for infringement and unfair competition in
use of plaintiff’s trade-mark and trade name. Id. at 597. In
reviewing the issue of comity, the district court, determined
that (1) “there [w]ould be no affront to Mexican sovereignty
or Mexican law,” (2) “plaintiff does not seek a determination
that any act of a foreign sovereign is invalid,” and (3) “plain-
tiff [does not] ask this court to negate something that has
already been determined in adversary proceedings between
parties at bar in a foreign forum.” Id. at 602. Only after mak-
ing these findings did the court conclude that comity would
not prevent the exercise of the court’s jurisdictional power. Id.
Our sister circuits have similarly respected another circuit’s
ability to disagree. For instance, in Virginia Society for
Human Life, Inc. v. Federal Election Commission, 263 F.3d
379 (4th Cir. 2001), the Fourth Circuit refused to issue a
nationwide injunction of a Federal Election Commission
(FEC) regulation that would “prevent[ ] the FEC from enforc-
ing the regulation against any party anywhere in the United
States.” Id. at 393. The Fourth Circuit reasoned: “The injunc-
tion also encroaches on the ability of other circuits to consider
the constitutionality of [the regulation].” Id. “Such a result
conflicts with the principle that a federal court of appeal’s
decision is only binding within its circuit.” Id.[7] Likewise, in Carson v. Here’s Johnny Portable Toilets,
Inc., 810 F.2d 104 (6th Cir. 1987), Johnny Carson brought
suit against a Michigan corporation engaged in renting and
selling portable toilets under the name “Here’s Johnny.” Id. at
105. The Sixth Circuit held that Carson’s state law “right of
publicity” had been violated, and affirmed the nationwide
injunction. Id. The Court held that (1) where there are indica-
tions that other jurisdictions may hold as our court would hold
and (2) where there are no facts in the record to suggest that
the party would encounter the contrary precedent, it would
allow a nationwide injunction. Id. The Sixth Circuit, in Her-
man Miller, Inc. v. Palazzeti Imports and Exports, Inc., 270
F.3d 298 (6th Cir. 2001), applied the factors set forth in Car-
UNITED STATES v. AMC ENTERTAINMENT, INC. 15959
son and held that the district court abused its discretion by
extending the right of publicity to states that do not recognize
that right. Id. at 327. The court noted “[t]he issuance of an
injunction under state law prohibiting otherwise lawful con-
duct in another state raises serious concerns. Thus, although
a court may have jurisdiction to grant broad relief, an injunc-
tion protecting the right of publicity should ordinarily be lim-
ited to conduct in jurisdictions that provide protection
comparable to the former state.” Id. (quoting Restatement
(Third) of Unfair Competition § 48 cmt. c (1995)) (emphasis
omitted).
[8] Here, the district court’s injunction is not a reasonable
extension of Fifth Circuit precedent. Instead, the district court
specifically requires conduct by AMC in the Fifth Circuit’s
geographic area that the Fifth Circuit rejected until the Access
Board and the DOJ promulgated specific regulatory guide-
lines. Therefore, not only does the Fifth Circuit not require
such conduct, it specifically “judicially repudiated” these
DOJ/Access Board requirements of the citizens of its circuit
(when considering the same arguments the district court now
enforces in its injunction). See Railway Labor, 784 F.2d at
964. A district court in the Ninth Circuit should not “negate
something that has already been determined in adversary pro-
ceedings” before the United States Court of Appeals of the
Fifth Circuit. See Las Palmas, 146 F. Supp. at 602. The Fifth
Circuit specifically rejected the “lines of sight” argument stat-
ing:
In light of the lack of any evidence that the Access
Board intended section 4.33.3 to impose a viewing
angle requirement, the Board’s recent statement that
it had not yet decided whether to adopt the DOJ’s lit-
igating position with respect to stadium-style the-
aters, and the common meaning of “lines of sight,”
we cannot conclude that the phrase “lines of sight
comparable” requires anything more than that the-
aters provide wheelchair-bound patrons with unob-
15960 UNITED STATES v. AMC ENTERTAINMENT, INC.
structed views of the screen. To impose a viewing
angle requirement at this juncture would require dis-
trict courts to interpret the ADA based upon the sub-
jective and undoubtedly diverse preferences of
disabled moviegoers. Congress granted the DOJ, in
conjunction with the Access Board, the authority to
promulgate regulations under the ADA in order to
provide the owners and operators of places of public
accommodation with clear guidelines for accommo-
dating disabled patrons. . . . Accordingly, in the
absence of specific regulatory guidance, we must
hold that section 4.33.3 does not require movie the-
aters to provide disabled patrons with the same view-
ing angles available to the majority of non-disabled
patrons.
Lara, 207 F.3d at 789 (internal citations omitted). To this date
(and Lara was decided in April 2000), the Access Board and
the Department of Justice have proposed no additional regula-
tory guidance. Thus, the district court’s injunction is in direct
conflict with the Fifth Circuit’s precedent, not a reasonable
extension of it.
[9] We find the reasoning set forth in Railway Labor, Vir-
ginia, Carson, Herman Miller, and Las Palmas instructive,
and apply it here. Principles of comity require that, once a sis-
ter circuit has spoken to an issue, that pronouncement is the
law of that geographical area. Courts in the Ninth Circuit
should not grant relief that would cause substantial interfer-
ence with the established judicial pronouncements of such sis-
ter circuits. To hold otherwise would create tension between
circuits and would encourage forum shopping. Thus, we hold
the district court abused its discretion in issuing the nation-
wide injunction affecting the geographical area of the Fifth
Circuit and, therefore, the actions of AMC within that circuit.6
6
We note AMC did not raise its comity contention to the district court
at the remedies phase of the litigation. However, this court has discretion
to raise comity sua sponte. See Stone v. City and County of San Francisco,
968 F.2d 850, 855-56 (9th Cir. 1992).
UNITED STATES v. AMC ENTERTAINMENT, INC. 15961
III. CONCLUSION
[10] Because the government failed to give AMC fair
notice as to the requirements of § 4.33.3, until, at the earliest,
the DOJ’s publication of its amicus brief in Lara, due process
requires that AMC may not be held accountable for actions
undertaken prior to the date on which it received fair notice.
Further, a majority of this panel holds that because the Fifth
Circuit has endorsed a different interpretation of § 4.33.3,
principles of comity prevent the district court from fashioning
a nationwide injunction that dictates AMC’s conduct within
the Fifth Circuit. We therefore vacate the district court’s
remedial order and remand for a (1) determination of the pre-
cise date on which AMC received fair notice and (2) modifi-
cation of the remedial order consistent with due process and
comity requirements.
REVERSED and REMANDED.
WARDLAW, Circuit Judge, dissenting in part:
I respectfully dissent from Part II.C of the majority opinion.1
In crafting a remedy that was no broader than necessary to
address AMC’s violations of § 4.33.3, the district court did
not abuse its discretion.2 On the contrary, the district court
properly followed the Supreme Court’s instruction that no
conflict exists, for the purposes of comity analysis, “where a
1
I agree with the majority that AMC did not waive its right to appeal
the nationwide scope of the injunction by participating in fashioning the
injunctive relief as ordered by the district court, and do not dissent from
that ruling. However, the majority bases its reversal of the district court
on an argument—comity—that AMC never raised to the district court, but
which the majority now erroneously views as pivotal.
2
We review the scope of a district court’s remedial order for an “abuse
of discretion.” Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486,
1493 (9th Cir. 1996).
15962 UNITED STATES v. AMC ENTERTAINMENT, INC.
person subject to regulation by two states can comply with the
laws of both.” Hartford Fire Ins. Co. v. California, 509 U.S.
764, 799 (1993) (internal quotation marks omitted). Disre-
garding the absence of a “true conflict” that implicates comity
concerns, see id. at 798, the majority concludes that a nation-
wide injunction against AMC “would cause substantial inter-
ference” with the sovereignty of the Fifth Circuit, and that
consequently the district court abused its discretion in grant-
ing such relief. I cannot agree.
I. The Appropriate Scope of Injunctive Relief
It is well-established that once a court has obtained per-
sonal jurisdiction over a defendant, that court has the power
to command the defendant to perform acts outside the territo-
rial jurisdiction of the court. See New Jersey v. City of New
York, 283 U.S. 473, 482 (1931) (“The situs of the acts creat-
ing the nuisance, whether within or without the United States,
is of no importance. Plaintiff seeks a decree in personam to
prevent them in the future. The Court has jurisdiction.”);
accord Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952)
(holding that an injunction may reach activities taking place
in Mexico); Leman v. Krentler-Arnold Hinge Last Co., 284
U.S. 448, 451-52 (1932) (holding that a district court’s decree
is binding “throughout the United States”).
We have often reiterated this principle. See, e.g., Bresgal v.
Brock, 843 F.2d 1163, 1170 (9th Cir. 1987) (“[T]here is no
bar against . . . nationwide relief in federal district or circuit
court when it is appropriate.”); United States v. Oregon, 657
F.2d 1009, 1016 n.17 (9th Cir. 1982) (holding that a district
court “may enjoin the commission of acts outside its dis-
trict”). Just last year, we upheld a nationwide injunction set-
ting aside certain Forest Service regulations that were
“manifestly contrary” to the Forest Service Decisionmaking
and Appeals Reform Act. Earth Island Inst. v. Ruthenbeck,
490 F.3d 687, 698-99 (9th Cir. 2007).
UNITED STATES v. AMC ENTERTAINMENT, INC. 15963
Likewise, district courts within our circuit commonly issue
nationwide injunctions where the “injunction . . . is tailored
to the violation of law that the Court already found—an
injunction that is no broader but also no narrower than neces-
sary to remedy the violations.” California ex rel. Lockyer v.
U.S. Dep’t of Agric., 468 F. Supp. 2d 1140, 1144 (N.D. Cal.
2006); see also Golden Door, Inc. v. Odisho, 437 F. Supp.
956, 968 (N.D. Cal. 1977), aff’d, 646 F.2d 347 (9th Cir.
1980), abrogated on other grounds by Japan Telecom, Inc. v.
Japan Telecom Am. Inc., 287 F.3d 866 (9th Cir. 2002)
(“Plaintiff’s market area, and hence the sphere of its reputa-
tion, are nationwide. Accordingly, it is entitled to nationwide
protection against confusion and dilution. The scope of the
injunction must therefore be nationwide.”).3
3
In point of fact, other circuit courts also regularly countenance nation-
wide relief under federal law, often without reference to the law of their
sister circuits. See, e.g., CBS Broad., Inc. v. EchoStar Commc’ns Corp.,
450 F.3d 505, 523-27 (11th Cir. 2006) (finding a nationwide “pattern or
practice” of violating 17 U.S.C. § 119(a)(7)(B) and granting a nationwide
injunction against such activity); JTH Tax, Inc. v. H & R Block E. Tax
Servs., Inc., 359 F.3d 699, 701 (4th Cir. 2004) (considering potential vio-
lations of a nationwide injunction issued to enforce IRS regulations);
United States v. Dinwiddie, 76 F.3d 913, 929 (8th Cir. 1996) (holding that
where “a geographically narrow injunction would be insufficient to
advance” the government’s “significant interest” in nationwide relief, “the
nationwide scope of the injunction is constitutional”); Washington v.
Reno, 35 F.3d 1093, 1103-04 (6th Cir. 1994) (“[T]he appropriate relief to
be granted to the plaintiffs on their . . . claim necessarily implicates nation-
wide relief.”); McLendon v. Cont’l Can Co., 908 F.2d 1171, 1182 (3d Cir.
1990) (“It cannot be gainsaid that Continental has employed a liability
avoidance program [(“LAP”)], illegal wherever it is used. Full relief
required a nationwide injunction ordering Continental to cease its use of
this discriminatory LAP.”); see also Stiller v. Hardman, 324 F.2d 626, 628
(2d Cir. 1963) (“The mandate of an injunction issued by a federal district
court runs throughout the United States.”); 5 J. Thomas McCarthy,
McCarthy On Trademarks and Unfair Competition § 30:15 (4th ed. 2008)
(“It is a familiar rule of Anglo-American law that once a court has
obtained personal jurisdiction over a defendant, the court has power to
command the defendant to do or not do acts outside the territorial jurisdic-
tion of the court.”).
15964 UNITED STATES v. AMC ENTERTAINMENT, INC.
Ultimately, the appropriate scope of injunctive relief is
guided by “the rule that injunctive relief should be no more
burdensome to the defendant than necessary to provide com-
plete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S.
682, 702 (1979) (revisiting equitable principles in light of
class action lawsuits). Thus, “principles of equity” limit the
scope of injunctions to “the extent of the violation established,
not by the geographical extent of the plaintiff class.” Id. Our
circuit assesses the appropriateness of the relief fashioned by
referencing the test set by Califano: “The primary concern . . .
must be that the relief granted is not ‘more burdensome than
necessary to redress the complaining parties.’ ” Bresgal, 843
F.2d at 1170 (quoting Califano, 442 U.S. at 702).
Consistent with these principles, we have held that a district
court abuses its discretion when it enjoins activities beyond
what is necessary to address the actual case before the court.
See Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469, 1480
(9th Cir. 1994). Addressing the complaint of a lone U.S. Navy
serviceman who was discharged for stating he was gay, the
district court had issued an injunction preventing the Depart-
ment of Defense (“DOD”) from discharging anyone based on
sexual orientation and from maintaining files on the sexual
orientation of servicemen “in the absence of conduct affecting
the military mission.” Id. at 1472. Applying Califano, we
found the injunction overbroad, reasoning: “This is not a class
action, and Meinhold sought only to have his discharge
voided and to be reinstated. . . . Beyond reinstatement, and not
separating Meinhold on that basis, DOD should not be con-
strained from applying its regulations to Meinhold and all
other military personnel.” Id. at 1480. Accordingly, we
vacated all aspects of the injunction addressing issues beyond
Meinhold’s reinstatement. Id.These principles are beyond any real dispute. Moreover, it
is clear that, following these principles, the district court
appropriately tailored its injunction so that it was “no more
burdensome” to AMC “than necessary to provide complete
UNITED STATES v. AMC ENTERTAINMENT, INC. 15965
relief” to the DOJ. Id. (internal quotation marks omitted). The
majority apparently does not disagree.
II. Relevant Comity Concerns
My disagreement with my colleagues arises from their view
that because our circuit and the Fifth Circuit embrace distinct
interpretations of § 4.33.3, the nationwide injunction impli-
cates principles of comity. The error in their analysis is that
they focus on the wrong “conflict.” The critical issue is not
that the Ninth and Fifth Circuits have announced different
interpretations of § 4.33.3—the Ninth requiring comparable
viewing angles and the Fifth merely an unobstructed view of
the screen. Rather, the issue is whether AMC’s compliance
with the nationwide injunction would require it to act in con-
flict with any law, obligation, or requirement in the Fifth Cir-
cuit or Texas. It would not.
The Fifth Circuit certainly has every right to interpret law
governing those states within its territory inconsistently with
our view of the same law. However, I do not see—and the
majority does not explain—how the district court’s remedial
order impairs the Fifth Circuit’s power to do so. Specifically,
nothing in a nationwide injunction against AMC could possi-
bly threaten the independence or sovereignty of the Fifth Cir-
cuit, and it is simply incorrect to assert, as the majority does,
that the injunction “requires conduct by AMC in the Fifth Cir-
cuit’s geographic area that the Fifth Circuit rejected.” Under
the injunction, as the district court noted in its summary judg-
ment order, “AMC would not be faced with a choice between
complying with this Court’s orders and the [Fifth Circuit]’s
orders.” Were the nationwide injunction to issue, the law in
the Fifth Circuit would remain unchanged, and all persons in
the Fifth Circuit would remain bound by its statement of the
law. Nor would AMC’s remedial actions violate or undermine
the Fifth Circuit’s interpretation of § 4.33.3. In Lara v. Cine-
mark USA, Inc., 207 F.3d 783 (5th Cir. 2000), the Fifth Cir-
cuit held that, at a minimum, § 4.33.3 requires theaters to
15966 UNITED STATES v. AMC ENTERTAINMENT, INC.
provide an unobstructed view for disabled spectators. See id.
at 789. Requiring AMC to provide an even better viewing
angle—not just unobstructed, but also comparable—does not
create a conflict, and it is clear that AMC could remodel its
theaters on its own initiative without violating the Fifth Cir-
cuit’s interpretation of § 4.33.3.4
In the international context, the Supreme Court has spoken
clearly to what constitutes a cognizable comity conflict. Hart-
ford Fire presented the question of whether comity permitted
a U.S. district court to consider certain Sherman Act antitrust
claims against a group of London reinsurers. 509 U.S. at 778-
79. Regarding comity, the Court framed the only “substantial
question” as “whether there is in fact a true conflict between
domestic and foreign law.” Id. at 798 (internal quotation
marks omitted). The London reinsurers, joined by the British
Government as amicus curiae, argued that comity counseled
against the district court’s exercise of jurisdiction, because the
British Parliament had “established a comprehensive regula-
tory regime . . . and . . . the conduct alleged here was perfectly
consistent with British law and policy.” Id. at 798-99. The
Court rejected this argument, stating that the “fact that con-
duct is lawful in the state in which it took place will not, of
itself, bar application of the United States antitrust laws, even
where the foreign state has a strong policy to permit or
encourage such conduct.” Id. at 799 (internal quotation marks
omitted). The Court explained: “No conflict exists, for these
purposes, where a person subject to regulation by two states
can comply with the laws of both.” Id. (internal quotation
marks omitted).
4
The litigating position that has been consistently advanced by the DOJ
in the years since Lara was decided provides sufficient “specific regula-
tory guidance” to cast doubt upon Lara’s continuing viability. See Lara v.
Cinemark USA, Inc., 207 F.3d 783, 788-89 (5th Cir. 2000) (resting its
holding on the “absence of specific regulatory guidance”). That is a ques-
tion for courts within the Fifth Circuit; regardless of the answer, a nation-
wide injunction against AMC is appropriate.
UNITED STATES v. AMC ENTERTAINMENT, INC. 15967
Hartford Fire provides clear support for the district court’s
issuance of a nationwide injunction against AMC. Since the
AMC defendants cannot show that “[Fifth Circuit] law
requires them to act in some fashion prohibited by the law of
the [Ninth Circuit] or . . . that their compliance with the laws
of both [circuits] is otherwise impossible,” the district court’s
remedial order does not create a conflict that implicates com-
ity concerns. Id.; see also In re Simon, 153 F.3d 991, 999 (9th
Cir. 1998) (confirming that “general principles of interna-
tional comity” are “limited to cases in which there is in fact
a true conflict between domestic and foreign law” (internal
quotation marks omitted)).
III. The Majority Cannot Cite a Single Case
Supporting Its Position
Though courts in our circuit and elsewhere frequently issue
and approve nationwide injunctions, the majority fails to iden-
tify a single, relevant case that suggests the injunction against
AMC was an abuse of discretion. In fact, most of the cases the
majority relies on actually support the conclusion that nation-
wide relief was appropriate here, while the others are strik-
ingly inapposite.
Bulova was a Lanham Act case in which the Supreme
Court concluded a federal district court had jurisdiction to
enjoin trademark infringement consummated in Mexico by a
U.S. resident. 344 U.S. at 281-82, 289. The Supreme Court
first stated that it did not doubt “the District Court’s jurisdic-
tion to award appropriate injunctive relief if warranted by the
facts after trial,” although the infringing conduct was permit-
ted under Mexican law. Id. at 289. The Court also noted that
a Mexican court had nullified a potentially conflicting regis-
tration of the counterfeit “Bulova” trademark in Mexico. Id.Concluding that there could be “no interference with the sov-
ereignty of another nation,” the Supreme Court held that “the
District Court in exercising its equity powers may command
15968 UNITED STATES v. AMC ENTERTAINMENT, INC.
persons properly before it to cease or perform acts outside its
territorial jurisdiction.” Id.In Las Palmas Food Co. v. Ramirez & Feraud Chili Co.,
245 F.2d 874 (9th Cir. 1957) (per curiam), aff’g and adopting
by reference Ramirez & Feraud Chili Co. v. Las Palmas Food
Co., 146 F. Supp. 594 (S.D. Cal. 1956), cert. denied, 355 U.S.
927 (1958), our circuit took up a question Bulova left open.5
Like Bulova, Las Palmas was a Lanham Act suit for injunc-
tive relief against the infringement of a plaintiff’s trademark
and trade name in Mexico. See Las Palmas, 146 F. Supp. at
597-98. Unlike Bulova, however, the Las Palmas defendants
had a valid Mexican registration of their counterfeit copy of
the trademark. Id. at 598. The defendants argued that although
the district court had the power to grant injunctive relief in
Mexico, comity demanded that the court “should abstain from
exercising that power because to do so would offend the sov-
ereignty of the Republic of Mexico.” Id. at 602. Rejecting this
argument, we noted that “at the most defendants’ Mexican
registration of plaintiff’s mark can have no greater effect than
to confer upon defendants a license or permission to use the
mark in Mexico.” Id. We reasoned that since no “public pol-
icy of Mexico requires defendants ever to exercise that
license,” forbidding use of the license would cause “no affront
to Mexican sovereignty or Mexican law.” Id.Under Bulova and Las Palmas, the district court was well
within its discretion in issuing a nationwide injunction against
AMC. In fact, each of the specific factors the Las Palmas
court considered supports the propriety of nationwide relief.
First, just as the law of Mexico did not require the Las Palmas
defendants to exercise their counterfeit license, the law of the
Fifth Circuit does not prevent AMC from providing compara-
ble viewing angles in its theaters, such that the nationwide
5
When we adopt an opinion of the district court as our own, that opinion
becomes relevant precedent on the issues it decides. See, e.g., In re Gar-
denhire, 209 F.3d 1145, 1148 (9th Cir. 2000).
UNITED STATES v. AMC ENTERTAINMENT, INC. 15969
injunction causes no affront to Fifth Circuit law. See id.; see
also Bulova, 344 U.S. at 289 (finding “no conflict which
might . . . impugn foreign law”). Moreover, surely no public
policy of the Fifth Circuit requires that theater owners refrain
from providing comparable viewing angles to disabled
patrons, such that requiring AMC to do so would affront the
Fifth Circuit’s sovereignty. Cf. Las Palmas, 146 F. Supp. at
602. Second, the Las Palmas court “emphasized that plaintiff
does not seek a determination that any act of a foreign sover-
eign is invalid.” Id. Similarly, the DOJ does not seek to over-
turn the Fifth Circuit’s interpretation of § 4.33.3. Finally, the
Las Palmas plaintiff, like the DOJ, did not “ask this court to
negate something that has already been determined in adver-
sary proceedings between the parties at bar in a foreign
forum.” Id. Accordingly, to the extent that Bulova and Las
Palmas guide our analysis, we should conclude that “comity
does not here argue against exercise of the power which the
Congress has conferred,” id., and the district court did not
abuse its discretion.
Nor would a nationwide injunction against AMC “en-
croach[ ] on the ability of other circuits to consider” how to
construe § 4.33.3. Va. Soc’y for Human Life v. Fed. Election
Comm’n, 263 F.3d 379, 393 (4th Cir. 2001). In Virginia Soci-
ety, an issue advocacy group sued the Federal Election Com-
mission (“FEC”) seeking a declaration that a particular
regulation was unconstitutional. Id. at 381. The district court
found the regulation unconstitutional and issued a nationwide
injunction preventing the FEC from enforcing the regulation.
Id. Finding the injunction overbroad, the Fourth Circuit
remanded for modification on two grounds: First, the injunc-
tion was “broader than necessary to afford full relief” to the
plaintiff, as an injunction preventing enforcement of the regu-
lation against the plaintiff alone would have “adequately pro-
tect[ed] it from the feared prosecution.” Id. at 393. Second,
the injunction had “the effect of precluding other circuits from
ruling on the constitutionality” of the regulation. Id. Both Vir-
ginia Society factors weigh in favor of a nationwide injunc-
15970 UNITED STATES v. AMC ENTERTAINMENT, INC.
tion against AMC, as there would be no encroachment on the
ability of other circuits to construe § 4.33.3, and the injunc-
tion would only apply to AMC—not to “any party anywhere.”
Id. Thus, to the extent Virginia Society is persuasive, it too
supports the grant of nationwide relief.
The majority’s reliance on Railway Labor Executives’
Ass’n v. Interstate Commerce Commission, 784 F.2d 959 (9th
Cir. 1986), is also misplaced. The Railway Labor Executives’
Association (“RLEA”) challenged the Interstate Commerce
Commission’s (“ICC”) interpretation of the interplay between
49 U.S.C. § 10901 and § 10903. See id. at 961-63. The ICC
claimed that only § 10901 governed its approval of the sale of
a particular railway line to a noncarrier, such that any labor
protections it might impose as a condition of its approval were
discretionary, while the RLEA claimed that § 10903 inter-
posed mandatory employee protections as a condition of the
sale. Id. at 964. Before reaching the merits, we addressed the
claim that collateral estoppel precluded our review because
the RLEA had already raised—and lost—arguments on “this
very legal issue” before the Tenth Circuit. Id. Assuming for
the purpose of argument “the strict similarity” of the cases,
we held that collateral estoppel did not bar RLEA from mak-
ing its arguments before us, because the “employees whose
interests RLEA seeks to protect here are not the same people
whose interests it sought to protect in the Tenth Circuit case.”
Id. Thus, there was “no mutuality of estoppel.” Id. Similarly,
the theaters governed by the nationwide injunction against
AMC are not the same theaters whose accommodations were
considered in Lara. More fundamentally, the DOJ was not a
party to Lara, but merely filed an amicus brief, so principles
of estoppel do not apply.
Railway Labor does acknowledge the widespread principle
that the government may relitigate the same issue in different
circuits. See id. As we noted there, “[i]t is standard practice
for an agency to litigate the same issue in more than one cir-
cuit and to seek to enforce the agency’s interpretation selec-
UNITED STATES v. AMC ENTERTAINMENT, INC. 15971
tively on persons subject to the agency’s jurisdiction in those
circuits where its interpretation has not been judicially repudi-
ated.” Id.; see also Va. Soc’y, 263 F.3d at 394 (declining to
set aside an FEC regulation under the Administrative Proce-
dure Act because then the “FEC would no longer be allowed
to defend its regulation in front of other courts of appeals”).
However, while certain agencies may selectively relitigate
issues, collateral estoppel generally prevents private parties
from doing so. As the Supreme Court has explained, this dis-
tinction reflects a longstanding recognition that “the Govern-
ment is not in a position identical to that of a private litigant,
both because of the geographic breadth of government litiga-
tion and also, most importantly, because of the nature of the
issues the government litigates.” United States v. Mendoza,
464 U.S. 154, 159 (1984) (internal citations and quotation
marks omitted) (refusing to apply nonmutual collateral estop-
pel to the government). Specifically, preventing the govern-
ment from relitigating issues “would substantially thwart the
development of important questions of law by freezing the
first final decision rendered on a particular legal issue,”
among other concerns. Id. at 160-61. The same cannot be said
of private parties.
The majority emphasizes Railway Labor’s recognition of
the government’s ability to relitigate issues, but misconstrues
its significance. The prepositional phrase “in those circuits
where its interpretation has not been judicially repudiated”
refers to the location of selective enforcement, not the scope
of the remedy. Thus, the DOJ appropriately came to our cir-
cuit to enforce § 4.33.3 against AMC. A nationwide injunc-
tion against AMC remains the appropriate remedy, provided
the injunction is tailored to the scope of the harm and compli-
ance with the injunction would not force AMC to violate the
law of another state or circuit. Accordingly, Railway Labor
provides no indication that the district court abused its discre-
tion by granting the DOJ nationwide relief.6
6
Although collateral estoppel does not apply to the current suit between
DOJ and AMC, it is possible that further litigation between the parties
15972 UNITED STATES v. AMC ENTERTAINMENT, INC.
The majority’s reliance upon Carson v. Here’s Johnny Por-
table Toilets, Inc., 810 F.2d 104 (6th Cir. 1987) (per curiam),
is somewhat perplexing. There, the Sixth Circuit conditionally
approved the issuance of a nationwide injunction based on
Michigan’s state law “right of publicity.” Id. at 105. The
question before the Sixth Circuit was whether an injunction
addressing violations of Michigan’s state law could extend
beyond Michigan’s borders when it was unclear whether other
states maintained similar substantive protections. Despite
such concerns, the Sixth Circuit allowed the injunction, rea-
soning:
Because there are indications that other states would
hold as we have predicted Michigan would, and
because the defendant is uncertain, at this point,
whether it wants to use the phrase “Here’s Johnny”
in any state where the substantive law arguably dif-
fers from Michigan’s, we see no harm in letting the
injunction stand in its present form for the time
being, at least.
Id. Critical to the Sixth Circuit’s holding was the fact that if
“the defendant should hereafter decide that it wants to use the
phrase in a state (other than Michigan) where it believes such
use would be legal but for the injunction, it will be free to
seek a modification of the injunction.” Id. By predicting the
probable trend of the law nationally, the Sixth Circuit was not
adopting a requirement that the right must reasonably extend
to other states in order for a nationwide injunction to issue.
regarding § 4.33.3 would indeed be barred. See United States v. Stauffer
Chem. Co., 464 U.S. 165, 169 (1984) (holding that “the doctrine of mutual
defensive collateral estoppel is applicable against the government to pre-
clude relitigation of the same issue already litigated against the same party
in another case involving virtually identical facts.”). Given that collateral
estoppel could prevent the DOJ from enforcing § 4.33.3 against AMC in
the future, a nationwide injunction against AMC appears particularly
appropriate.
UNITED STATES v. AMC ENTERTAINMENT, INC. 15973
Rather, it merely observed that, as it saw “the equities, . . . it
would be fairer to require the defendant to take the litigation
initiative . . . than to require the plaintiffs to do so.” Id.
The Sixth Circuit was justifiably wary of permitting an
injunction that would dictate behavior in other states on the
basis of one state’s tort law. Our federal courts have long
stood by the principle that the “common law so far as it is
enforced in a State, whether called common law or not, is not
the common law generally but the law of that State existing
by the authority of that State without regard to what it may
have been in England or anywhere else.” Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 79 (1938) (internal quotation marks
omitted). However, while “[c]ircuit law . . . binds all courts
within a particular circuit, including the court of appeals
itself,” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.
2001), the courts of appeal do not “retain a residuary and invi-
olable sovereignty” comparable to that of the States. Alden v.
Maine, 527 U.S. 706, 715 (1999) (internal quotation marks
omitted) (discussing state sovereign immunity); see also
Stauffer Chem. Co., 464 U.S. at 176 (White, J., concurring)
(“[T]here are considerations of comity in the state/federal sit-
uation that are not present as between two circuits.”). On the
contrary, the circuit courts share the responsibility of inter-
preting a common body of constitutional and federal law, and
must render decisions that are consistent with the Supreme
Court’s statement of the law. See Massanari, 266 F.3d at
1171 (“A decision of the Supreme Court will control that cor-
ner of the law unless and until the Supreme Court itself over-
rules or modifies it. Judges of the inferior courts may voice
their criticisms, but follow it they must.”). The nationwide
injunction against AMC does not implicate the federalism and
state sovereignty concerns at issue in Here’s Johnny. Unlike
Michigan’s right of publicity, § 4.33.3 is a federal regulation
that is as applicable in the Fifth Circuit as it is in the Ninth.
For that reason, the Sixth Circuit’s reasoning in Here’s
Johnny does not apply here.
15974 UNITED STATES v. AMC ENTERTAINMENT, INC.
In light of the “considerable discretion” a district court has
“in fashioning suitable relief and defining the terms of an
injunction,” our precedent commands “correspondingly nar-
row” appellate review. Lamb-Weston, Inc. v. McCain Foods,
Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (internal quotation
marks omitted). Unfortunately, the majority’s review is far
from narrow. Instead, based on a tenuous apprehension of
“substantial interference” with the law of the Fifth Circuit, the
majority vacates the district court’s injunction without ever
explaining how that remedial order was an abuse of discre-
tion. Because the district court’s injunction did not exceed the
specific harm alleged, it cannot have been overbroad. See id.;
see also Bresgal, 843 F.2d at 1170-71 (“[A]n injunction is not
necessarily made over-broad by extending benefit or protec-
tion to persons other than prevailing parties in the lawsuit—
even if it is not a class action—if such breadth is necessary
to give prevailing parties the relief to which they are entitled.”
(emphasis omitted)). Moreover, because the relevant comity
cases actually support the scope of the district court’s injunc-
tion, it is clear that the district court did not rely on erroneous
legal principles. Confronting AMC’s nationwide violations of
§ 4.33.3, and keeping in mind the ADA’s stated purpose “to
provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabil-
ities,” 42 U.S.C. § 12101(b)(1), the district court was well
within its discretion in granting nationwide relief. Thus, I dis-
sent.