NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 1 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARK LANDIS; et al., No. 19-36075

Plaintiffs-Appellants, D.C. No. 2:18-cv-01512-BJR

v.

MEMORANDUM*

WASHINGTON STATE MAJOR LEAGUE

BASEBALL STADIUM PUBLIC

FACILITIES DISTRICT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted December 10, 2020 Seattle, Washington

Before: McKEOWN, FORREST**, and BUMATAY, Circuit Judges.

Plaintiffs-Appellants Clark Landis, Robert Barker, Grady Thompson, and

Kayla Brown (Plaintiffs) appeal from the district court’s findings and conclusions

following a bench trial rejecting their claims that Defendants-Appellees Washington

State Major League Baseball Stadium Public Facilities District, Baseball of Seattle,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Formerly known as Danielle J. Hunsaker. Inc., Mariners Baseball, LLC, and the Baseball Club of Seattle, LLLP, owners and

operators of T-Mobile Park in Seattle, Washington (Stadium), violated Titles II and

III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131–12134 and

12181–12189, in numerous ways. Plaintiffs contend that the Stadium does not

provide adequate wheelchair-accessible seating or proportional ticket pricing for

wheelchair-accessible seating. They also contend that the cumulative impact of these

failures, and others, including the failure to provide adequate sightlines of the

playing field and scoreboards, discriminates against spectators who use wheelchairs,

in violation of the ADA.1 We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We review the district court’s factual findings for clear error and its legal

conclusions de novo. OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1096

(9th Cir. 2011). “Mixed questions of fact and law are also reviewed de novo.” Id.

1. Wheelchair-Accessible Seating. The district court did not err in

determining that wheelchair-accessible seating is sufficiently dispersed throughout

the Stadium. The 1991 Americans with Disabilities Act Accessibility Guidelines

require that accessible seating be an “integral part” of the Stadium’s seating plan and

offer patrons using wheelchairs “a choice of . . . lines of sight comparable to those

1 Plaintiffs also argue as an independent issue that the district court erred in rejecting their claim that the Stadium violates the ADA by not providing spectators using wheelchairs comparable sightlines to the playing field. We address this issue in a concurrently published opinion.

2 for members of the general public.” 28 C.F.R. Pt. 36, App. A § 4.33.3 (1991). We

cannot find support in the text of section 4.33.3 or in the admittedly sparse caselaw

for the “true proportionality test” that Plaintiffs advance. Rather, the district court

correctly determined that the Stadium’s seating satisfies section 4.33.3’s

requirement that accessible seating be “integral”—an intrinsic component—and

comparable—substantially similar—to non-accessible seating. Accessible seating is

available in each of the four tiers in the Stadium, is placed along every path of egress,

and is distributed throughout the Stadium instead of being bunched in the end zone

or a single tier. Spectators using wheelchairs have perspective and pricing choices

comparable to those offered to the general public. See 28 C.F.R. Pt. 36, App. A

§ 4.33.3.

2. Ticket Pricing. The district court correctly determined that the

Stadium’s ticket pricing complies with the ADA. Plaintiffs mistakenly assert that the

Department of Justice’s Ticket Sales guidance memorandum requires that all ticket-

price levels be proportionally represented for wheelchair-accessible seats. See Dep’t

of Just., Ticket Sales (2010), https://www.ada.gov/ticketing_2010.htm. This is not,

however, what is required by Ticket Sales (to the extent that it is binding) or the

governing regulations. Instead, a stadium is required to offer accessible seats in a

variety of locations throughout with different viewing angles and at all price levels,

and tickets for accessible seats may not be set higher than for other tickets in the

3 same section. See 28 C.F.R. § 36.302(f)(3). The trial evidence established that the

Stadium meets these requirements—wheelchair users have access to the same

categories of tickets as the general public, the price of accessible seats is never more

than a nearby non-accessible seat, and accessible seat prices range from low ($17)

to high ($600).

3. Cumulative Discriminatory Effect. Finally, for the first time on appeal,

Plaintiffs argue that the Stadium violates the ADA’s general non-discrimination

provision, 42 U.S.C. § 12182(a), by not offering comparable views of the field and

scoreboard, distribution of seating locations, and ticket-price levels. “Absent

exceptional circumstances, we generally will not consider arguments raised for the

first time on appeal, although we have discretion to do so.” Club One Casino, Inc.

v. Bernhardt, 959 F.3d 1142, 1153 (9th Cir. 2020) (citation omitted). Plaintiffs do

not argue that any exceptional circumstances apply here, nor do we find any.

Accordingly, their cumulative-effects argument is waived.

AFFIRMED.

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