Clark Landis ; Robert Barker ; Grady Thompson; Kayla Brown v. Washington State Major League Baseball Stadium Public Facilities District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C LARK LANDIS ; R OBERT B ARKER ;
GRADY THOMPSON; KAYLA B ROWN,
Plaintiffs-Appellants,
v.
WASHINGTON S TATE M AJOR LEAGUE
B ASEBALL S TADIUM P UBLIC
FACILITIES DISTRICT; B ASEBALL OF
S EATTLE, INC ., a Washington
corporation; M ARINERS B ASEBALL,
LLC, a Washington limited liability
company; THE B ASEBALL C LUB OF
S EATTLE, LLLP, a Washington
limited liability limited partnership,
Defendants-Appellees.
No. 19-36075
D.C. No.
2:18-cv-01512-
BJR
OPINION
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
Filed September 1, 2021

-- 1 of 27 --

2 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
Before: M. Margaret McKeown, Danielle J. Forrest*, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Forrest;
Concurrence by Judge Bumatay
SUMMARY**
Americans with Disabilities Act
The panel vacated the district court’s judgment, after a
bench trial, in favor of defendants and remanded for further
proceedings in an action under the Americans with
Disabilities Act.
Plaintiffs alleged that spectators using wheelchairs at T-
Mobile Park in Seattle had inadequate sightlines under the
ADA, as implemented by the Department of Justice’s 1996
Accessible Stadiums document.
The panel assumed without deciding that the district
court did not err in applying the Accessible Stadiums
guidance interpreting § 4.33.3 of the 1991 Accessibility
Guidelines adopted by the DOJ. The panel held, however,
that the district court did not properly apply this standard
because it analyzed only the requirement that a person using
a wheelchair must be able to see the playing surface between
the heads and over the shoulders of the persons standing in
* Formerly known as Danielle J. Hunsaker.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

-- 2 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 3
the row immediately in front. The panel held that the district
court erred by failing to analyze the additional requirement
that a person using a wheelchair must be able to see the
playing surface over the heads of the persons standing two
rows in front.
The panel addressed additional issues in a concurrently
filed memorandum disposition.
Concurring, Judge Bumatay wrote that the case should
be remanded for different reasons. Judge Bumatay wrote
that the district court erred in summarily applying Auer
deference to the Accessible Stadiums document as a binding
interpretation of a disability regulation when Accessible
Stadiums is a guidance issued by a section within the DOJ’s
Civil Rights Division that, by its own terms, “has no legally
binding effect,” and does “not establish legally enforceable
responsibilities.” On remand, Judge Bumatay would ask the
district court to perform the requisite analysis under Kisor v.
Wilkie, 139 S. Ct. 2400 (2019), before deferring to the
Accessible Stadiums guidance.
COUNSEL
Conrad Reynoldson (argued) and Michael Terasaki,
Washington Civil & Disability Advocate, Seattle,
Washington; Christopher H. Knauf, Alexandra M.
Robertson, and Anthony Pinggera, Disability Rights Legal
Center, Los Angeles, California; for Plaintiffs-Appellants.
Stephen C. Willey (argued) and Sarah Gohmann Bigelow,
Savitt Bruce & Willey LLP, Seattle, Washington, for
Defendants-Appellees.

-- 3 of 27 --

4 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
Stephen A. Hylas (argued) and John D. Maher, Munger
Tolles & Olson LLP, San Francisco, California, for Amicus
Curiae Disability Rights Organizations.
OPINION
FORREST, Circuit Judge:
The question presented is whether spectators using
wheelchairs at T-Mobile Park in Seattle, Washington (the
Stadium) have adequate sightlines under the Americans with
Disabilities Act (ADA) as implemented by the Department
of Justice’s (DOJ) 1996 Accessible Stadiums guidance
document.1 Following a bench trial, the district court
concluded that the Stadium’s sightlines are adequate, but it
failed to explain how the Stadium satisfies all the Accessible
Stadiums requirements. Therefore, we vacate and remand.
BACKGROUND
A. Wheelchair Accessibility Requirements for Sports
Stadiums
Congress enacted the ADA to address discrimination
suffered by individuals with disabilities. The ADA prohibits
anything less than the full and equal enjoyment of places of
public accommodation by individuals with disabilities.
42 U.S.C. § 12182(a). Accordingly, sports stadiums—which
are places of public accommodation—must be “readily
accessible to and usable by individuals with disabilities.” Id.
1 Plaintiffs-Appellants also appeal the district court’s rejection of
their claims that the Stadium has accessibility barriers related to ticket
pricing, dispersal of seats, and views of a particular scoreboard. We
address these issues in a concurrently filed memorandum disposition.

-- 4 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 5
§ 12183(a)(1). The DOJ is responsible for implementing the
ADA by promulgating regulations. Id. § 12134(a). The
DOJ’s regulations must comply with the minimum standards
set by the Architectural and Transportation Barriers
Compliance Board, see id. §§ 12186(c), 12134(c),
commonly known as the “Access Board.” Miller v. Cal.
Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008).
The Access Board is an independent federal agency
charged with “develop[ing] advisory information for, and
provid[ing] appropriate technical assistance to, individuals
or entities with rights or duties” under Titles II and III of the
ADA and establishing “minimum guidelines and
requirements for the standards issued” by Titles II and III of
the ADA. 29 U.S.C. § 792(b)(2), (3)(B). The Access Board
published its first “ADA Accessibility Guidelines” in 1991
(1991 Accessibility Guidelines). Miller, 536 F.3d at 1025. In
relevant part, section 4.33.3 of the 1991 Accessibility
Guidelines requires that “[w]heelchair areas shall be an
integral part of any fixed seating plan and shall be provided
so as to provide people with physical disabilities a choice of
admission prices and lines of sight comparable to those for
members of the general public.” 28 C.F.R. Part 36, App. A
§ 4.33.3 (1991) (emphasis omitted).
The DOJ adopted the 1991 Accessibility Guidelines the
same day they were published. Miller, 536 F.3d at 1026. The
DOJ published technical assistance guidance in 1993 and
1994, id., and in 1996, it published the guidance document
at issue in this case. See Dep’t of Just., Accessible Stadiums
(1996), https://www.ada.gov/stadium.pdf (Accessible
Stadiums). Accessible Stadiums “highlights key accessibility
requirements of the ADA that apply to new stadiums,”
including sightline requirements for wheelchair seating. Id.
at 1. Regarding sightlines, Accessible Stadiums interprets

-- 5 of 27 --

6 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
section 4.33.3 of the 1991 Accessibility Guidelines as
requiring that:
Wheelchair seating locations must provide
lines of sight comparable to those provided to
other spectators. In stadiums where
spectators can be expected to stand during the
show or event (for example, football,
baseball, basketball games, or rock concerts),
all or substantially all of the wheelchair
seating locations must provide a line of sight
over standing spectators. A comparable line
of sight, as illustrated in the figure below,
allows a person using a wheelchair to see the
playing surface between the heads and over
the shoulders of the persons standing in the
row immediately in front and over the heads
of the persons standing two rows in front.
Id. at 2 (emphasis omitted). The Accessible Stadiums
comparable-sightline figure is included below.

-- 6 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 7
B. Plaintiffs’ Claims
Plaintiff-Appellants Clark Landis, Robert Barker, Grady
Thompson, and Kayla Brown (collectively, Plaintiffs) are
baseball fans with qualifying disabilities under Title II and
Title III of the ADA who use wheelchairs for mobility.
Defendants-Appellees are four entities that own and operate
the Stadium, home to the Seattle Mariners: (1) Washington
State Major League Baseball Stadium Public Facilities
District; (2) Baseball of Seattle, Inc. (3) Mariners Baseball,
LLC; and (4) The Baseball Club of Seattle, LLLP
(collectively, Owners and Operators). The Stadium was
designed in 1996 and built between 1997 and 1999. It has
four vertically stacked seating levels sloped toward the field.
There is wheelchair accessible seating on each level.
Plaintiffs sued the Owners and Operators, alleging the
Stadium fails to comply with multiple requirements of the
ADA, 42 U.S.C. §§ 12131–12134 and 12181–12189, and
the Washington Law Against Discrimination, Wash. Rev.
Code § 49.60.010 et seq. Plaintiffs opted for a bench trial,
and by the time trial began, only four issues remained,
including whether spectators using wheelchairs have
adequate sightlines over standing spectators.
The Owners and Operators relied on their expert William
Endelman in asserting that the Stadium’s sightlines were
adequate. Endelman utilized the Accessible Stadiums
guidance in reaching his opinion. Specifically, he compared
two sections of the Stadium with the Accessible Stadiums
figure provided above. Based on this comparison, Endelman
concluded that spectators using wheelchairs are “able to see
over the shoulders and between the heads of people in the
row immediately in front, and over the heads of people in the
second row in front of the accessible seating.”

-- 7 of 27 --

8 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
Plaintiffs’ expert James Terry disagreed. Terry evaluated
the sightlines of spectators in wheelchairs by estimating the
shoulder height of a spectator standing one row forward of
the wheelchair-accessible seating and the full height of a
spectator standing two rows forward of wheelchair-
accessible seating. Using this same process, Terry also
estimated sightlines of spectators not using wheelchairs in
comparable locations. Terry determined that the sightlines of
spectators using wheelchairs were nearly always more
obstructed than the sightlines of spectators not using
wheelchairs. Specifically, Terry concluded that the heads of
standing spectators two rows forward caused the most
obstruction. In seating section 135, for example, when
viewing the side of the field, spectators using wheelchairs
could see 8% of the field while spectators not using
wheelchairs could see 41% of the field; when viewing the
infield, spectators using wheelchairs could see 31% of the
field while spectators not using wheelchairs could see 100%
of the field; when viewing the outfield, spectators using
wheelchairs could see 66% of the field while spectators not
using wheelchairs could see 86% of the field; and when
viewing the field generally, spectators using wheelchairs
could see 36% of the field while spectators not using
wheelchairs could see 71% of the field.
After considering the testimony and evidence presented
by the parties’ competing experts, the district court rejected
Plaintiffs’ sightline claim and held that the Stadium complies
with the ADA. Regarding the Accessible Stadiums standard,
the district court concluded:
[W]hen the Court reviews the illustrations
considering what can be seen over the line
representing the standing spectator’s
shoulders, i.e., “over the shoulders and

-- 8 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 9
between the heads,” more of the field is
visible from the accessible seat, making the
views comparable. For example, when
considering the shoulder line in Mr. Terry’s
illustrations, several of the locations have
100% visibility of the field. For the others,
the percentage of field viewable is close to
100%. Thus, the [c]ourt concludes that when
taking into account what percentage of the
field that can be seen utilizing the standard set
by the Accessible Stadiums guideline, the
sightlines are comparable.
Plaintiffs timely appealed, and we have jurisdiction under
28 U.S.C. § 1291.
STANDARD OF REVIEW
We review the district court’s findings of fact for clear
error. OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d
1092, 1096 (9th Cir. 2011). This is deferential review; we
reverse only if we are left with a “definite and firm
conviction that a mistake has been committed.” United
States v. Gainza, 982 F.3d 762, 765 (9th Cir. 2020) (citation
omitted). The district court’s legal conclusions are reviewed
de novo, Lentini v. Cal. Ctr. for the Arts, Escondido,
370 F.3d 837, 843 (9th Cir. 2004), as are mixed questions of
fact and law, OneBeacon Ins. Co., 634 F.3d at 1096.
DISCUSSION
The first question we must answer is whether the
Accessible Stadiums guidance interpreting section 4.33.3 of
the 1991 Accessibility Guidelines governs this case. This
question is easily resolved given how the parties litigated
this case.

-- 9 of 27 --

10 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
As a general rule, courts defer to an agency’s
interpretation of its own “genuinely ambiguous” regulation.
Kisor v. Wilkie, 139 S. Ct. 2400, 2414–15 (2019); see also
Miller, 536 F.3d at 1028. As with many rules, however, there
are exceptions. Kisor, 139 S. Ct. at 2414 (“[W]e have noted
various circumstances in which [Auer] deference is
‘unwarranted.’”). We do not defer to the agency’s
interpretation unless it is “reasonable”—that is, the
interpretation “must come within the zone of ambiguity the
court has identified after employing all its interpretive
tools.” Id. at 2415–16; see also Miller, 536 F.3d at 1028.
Additionally, the agency’s interpretation must be “made by
the agency” and “must in some way implicate its substantive
expertise.” Kisor, 139 S. Ct. at 2416–17. Finally, the
“agency’s reading of a rule must reflect fair and considered
judgment” to warrant deference. Id. at 2417 (internal
quotation marks and citation omitted).
Here, the parties apparently agree that section 4.33.3 is
genuinely ambiguous and that Accessible Stadiums is a
reasonable interpretation of that guideline reflecting the
DOJ’s authoritative, expert, and fair and considered
judgment. See Kisor, 139 S. Ct. at 2415–17. No party
contested here or below the applicability of Accessible
Stadiums or the district court’s deference to it. Landis v.
Wash. State Major League Baseball Stadium Pub. Facilities
Dist., 403 F. Supp. 3d 907, 916 n.12 (W.D. Wash. 2019)
(“Both parties agree that the Accessible Stadiums guidance
applies to T-Mobile Field.”). We see no reason to disturb the
parties’ presentation of the issues and sua sponte question
the validity of Accessible Stadiums. See United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“[A]s a
general rule, our system is designed around the premise that
parties represented by competent counsel know what is best
for them, and are responsible for advancing the facts and

-- 10 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 11
argument entitling them to relief.” (cleaned up)). Thus, we
assume without deciding that the district court did not err in
applying the Accessible Stadiums standard to this case. We
find this approach particularly appropriate where the
regulation that Accessible Stadiums interprets was
supplanted by the 2010 Accessibility Guidelines2 for new
construction and alterations, thus cabining Accessible
Stadiums’ applicability. See 28 C.F.R. § 36.406(a)(1);
28 C.F.R. Pt. 36, App. B (noting the DOJ issued Accessible
Stadiums to provide official guidance on the comparable-
sightlines requirement in the 1991 Accessibility Guidelines).
We expressly acknowledge the possibility, however, that the
validity of Accessible Stadiums may properly be raised in the
future, and our decision today does not foreclose any such
challenge.
Having concluded that the district court did not err in
applying the Accessible Stadiums comparable-sightline
standard to this case, the second question we must answer is
whether the district court properly applied this standard.
Accessible Stadiums directs that a person using a wheelchair
has comparable sightlines over standing spectators only
when two requirements are met. Accessible Stadiums at 2.
First, a person using a wheelchair must be able to “see the
playing surface between the heads and over the shoulders of
2 The 2010 Accessibility Guidelines require that if standing
spectators are afforded sightlines “over the heads of spectators standing
in the first row in front of their seats,” then spectators in wheelchair
spaces must be afforded that same sightline. And if standing spectators
are afforded sightlines “over the shoulders and between the heads of
spectators standing in the first row in front of their seats,” then spectators
in wheelchair spaces must be afforded the same. Dep’t of Just., 2010
ADA Standards for Accessible Design (2010), https://www.ada.gov/reg
s2010/2010ADAStandards/2010ADAStandards.pdf; see also 28 C.F.R.
§ 35.104.

-- 11 of 27 --

12 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
the persons standing in the row immediately in front.” Id.
Second, a person using a wheelchair must be able to see the
playing surface “over the heads of the persons standing two
rows in front.” Id.
On appeal, Plaintiffs argue that the district court erred by
analyzing only the first requirement. We agree. Although the
district court recited both requirements, it failed to explain
how the evidence satisfied the second requirement. Noting
that Endelman testified that “the accessible seats that exist
roughly comport with the diagram provided by the
Accessible Stadiums guideline, the district court reasoned
that Terry’s diagrams also supported this conclusion.
Specifically, the district court dismissed Terry’s conclusion
that the second requirement was not satisfied because
spectators using wheelchairs did not have a comparable view
over the heads of standing spectators, because “when [it]
reviews [Terry’s] illustrations considering what can be seen
over the line representing the standing spectator’s shoulders,
i.e., ‘over the shoulders and between the heads,’ more of the
field is visible from the accessible seat, making the views
comparable.” The district court did not discuss whether
spectators using wheelchairs could see over the heads of the
spectators standing two rows in front of them. It seems the
district court may have erroneously concluded that Terry’s
diagrams addressed only the spectator one row in front of the
wheelchair accessible seating. However, Terry’s exhibits
and his testimony explaining the exhibits make clear that one
line represents the head of a spectator two rows in front and
the other line represents the shoulders of a spectator one row
in front.
Because we are not satisfied that the district court
analyzed the second Accessible Stadiums requirement, we
vacate its decision concluding that the Stadium satisfies the

-- 12 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 13
ADA by providing comparable sightlines to spectators using
wheelchairs, and we remand for further proceedings so that
a complete analysis of the Accessible Stadiums requirements
can be performed. We express no opinion at this point as to
the ultimate issue—whether the Stadium’s sightlines for
spectators using wheelchairs are sufficient to satisfy the
ADA. To properly consider that question, a full analysis of
the Accessible Stadiums requirements is needed.
CONCLUSION
For the forgoing reasons, the district court’s decision on
Plaintiffs’ comparable-sightlines claim is VACATED AND
REMANDED for further proceedings consistent with this
opinion.
BUMATAY, Circuit Judge, concurring:
I agree with my colleagues that we should return this
case to the district court. But I believe we should do so for
different reasons. In short, the district court erred in
summarily deferring to a document called Accessible
Stadiums as a binding interpretation of a disability
regulation. But far from being authoritative, Accessible
Stadiums is guidance issued by a section within the
Department of Justice’s Civil Rights Division that, by its
own terms, “has no legally binding effect” and does “not
establish legally enforceable responsibilities.”1 This fact
and others would have surfaced had the district court
performed the requisite analysis under Kisor v. Wilkie, 139
1 Available at https://www.ada.gov/stadium.pdf [https://perma.cc/
Q4BZ-7H95].

-- 13 of 27 --

14 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
S. Ct. 2400 (2019). No such analysis occurred, however. On
remand, I would thus ask the district court to follow the steps
laid out in Kisor before deferring to this guidance on the
scope of a disability regulation.
I.
Understanding the doctrinal background is key to
understanding today’s discussion. Since the Supreme
Court’s decision in Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945), federal courts have extended
controlling weight to an agency’s interpretation of its own
ambiguous regulation unless that interpretation is “plainly
erroneous or inconsistent with the regulation,” Auer v.
Robbins, 519 U.S. 452, 461 (1997) (simplified). This
doctrine is often called Auer deference or Seminole Rock
deference. While a topic for another day, not everyone is a
fan of Auer deference. In fact, four sitting justices have
called for Auer to be overruled. See Kisor, 139 S. Ct. at 2425
(Gorsuch, J., concurring, joined by Thomas, J.); see id.
at 2448 (Kavanaugh, J., concurring, joined by Alito, J.).
Before Kisor, our court had adopted the “plainly
erroneous or inconsistent” formulation of Auer deference.
Under that regime, an agency’s interpretation of an
ambiguous regulation controls “so long as the interpretation
sensibly conforms to the purpose and wording of the
regulations.” Miller v. California Speedway Corp., 536 F.3d
1020, 1028 (9th Cir. 2008) (simplified).
In Kisor, however, the Court cast doubt on our
implementation of Auer deference. The Court “restate[d]”
its approach and charged lower courts with following a more
rigorous analysis before deferring to an agency
interpretation. Kisor, 139 S. Ct. at 2414. It explained that
lower courts may have misinterpreted its “mixed messages”

-- 14 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 15
and thus improperly deferred to agency interpretations
without “significant analysis of the underlying regulation.”
Id. Significantly, in the Court’s view, our court’s
formulation in Miller—the “plainly erroneous or
inconsistent” standard—has led to a “caricature of the
doctrine,” resulting in “reflexive” deference. Id. at 2415
(simplified). Auer deference, the Court said, isn’t meant to
be used that way. The doctrine doesn’t apply “in all cases”
and only provides a “general rule” of interpretation. Id.
at 2414 (simplified).
While the limits of Auer aren’t confined to a “rigid test,”
id., Kisor provided several steps to consider before
deferring.
First, the regulation must be “genuinely ambiguous.” Id.
at 2415. Deference is unnecessary if the meaning of the
regulation is plain after exhausting the “traditional tools” of
interpretation. Id. In making this determination, lower
courts should consider the “text, structure, history, and
purpose of a regulation[.]” Id.
Second, the agency’s interpretation must be
“reasonable.” Id. Deference is not appropriate unless the
interpretation “come[s] within the zone of ambiguity the
court has identified after employing all its interpretive
tools.” Id. at 2415–16. Once again, “text, structure, history,
and so forth” are the central considerations. Id. at 2416.
These data points establish the “outer bounds of permissible
interpretation.” Id. “[L]et there be no mistake:” agencies
“can fail” the reasonableness requirement. Id.
Third, the interpretation must be the agency’s
authoritative position. Id. Intuitively, this makes sense—
the interpretation “must be one actually made by the
agency.” Id. Thus, we cannot defer to an “ad hoc statement

-- 15 of 27 --

16 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
not reflecting the agency’s views.” Id. At the very least, the
interpretation “must . . . emanate from those [agency] actors,
using those vehicles, understood to make authoritative
policy in the relevant context.” Id. For example, we don’t
defer to interpretations from a mid-level official’s speech,
from informal memoranda recounting employee
conversations, or from an agency that disclaimed the use of
regulatory guides as authoritative. Id. at 2416–17 (collecting
cases).
Fourth, the interpretation must implicate the agency’s
substantive expertise. Id. at 2417. Again, this is intuitive.
Courts should only defer to an agency’s interpretation that
implicates its policy expertise. There’s no need for
deference when the interpretive question falls “more
naturally into a judge’s bailiwick” or when the agency has
no “comparative expertise in resolving a regulatory
ambiguity.” Id.
Finally, Kisor offers a catchall: the interpretation must
be a “fair and considered judgment” of the agency. Id. at
2417 (simplified). For example, no deference is due to mere
convenient litigating positions, post hoc rationalizations,
interpretations leading to unfair surprise, or readings in
conflict with prior ones. Id. at 2417–18.
II.
Turning to the law at issue: Section 4.33.3 of the 1991
Americans with Disabilities Act (“ADA”) Accessibility
Guidelines governs the placement of accessible seating at
places of public accommodation, such as T-Mobile Park,
home of the Seattle Mariners. In adjudicating this dispute,
the district court deferred to Accessible Stadiums as the
binding interpretation of § 4.33.3. The district court
explained, “Accessible Stadiums is the DOJ’s most

-- 16 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 17
contemporaneous interpretation of Section 4.33.3” and that
the agency’s reading was “neither plainly erroneous nor
inconsistent with the regulation.”
That, however, was the sum total of the Auer analysis in
this case. After the district court held Accessible Stadiums
binding, it found that T-Mobile Park complied with the
guidance’s sightlines requirement. The district court might
be right here. T-Mobile Park might ultimately meet the
ADA’s accessibility requirements. But the district court
needed to follow the Kisor steps before reaching that
conclusion. As shown below, doing so would reveal some
hard questions about reflexively deferring to Accessible
Stadiums’ interpretation of the law. I would vacate the
district court’s judgment and remand for the court to
reconsider deferring to Accessible Stadiums under Kisor.
A.
First, we must determine whether the regulation at issue
is “genuinely ambiguous.” Kisor, 139 S. Ct. at 2414.
Section 4.33.3 was promulgated by the Department of
Justice as a part of its 1991 ADA Accessibility Guidelines
(“ADAAG”). It provides, in relevant part:
Placement of Wheelchair Locations.
Wheelchair areas shall be an integral part of
any fixed seating plan and shall be provided
so as to provide people with physical
disabilities a choice of admission prices and

-- 17 of 27 --

18 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
lines of sight comparable to those for
members of the general public.
28 C.F.R. Part 36, App. A, 4.33.3.2
Accessible Stadiums is a 1996 DOJ “informal guidance”
document that purports to interpret disability law as related
to new stadiums. Accessible Stadiums at 1, 5. While it
doesn’t expressly reference § 4.33.3, the document explains
that a “comparable line of sight . . . allows a person using a
wheelchair to see the playing surface between the heads and
over the shoulders of the persons standing in the row
immediately in front and over the heads of the persons
standing two rows in front.” Id. at 2. It then provides a
graphic representation of its interpretation. Id. Accordingly,
if binding, § 4.33.3 conditions ADA compliance on
providing lines of sight over standing spectators—the factual
dispute between the parties here.
Perhaps § 4.33.3’s “choice of . . . lines of sight
comparable” language is so ambiguous that looking to
Accessible Stadiums is appropriate, but I’m not so sure.
Courts are divided on this question. The regulation might
mean, as then-Judge Alito explained, that stadiums must
adhere to a dispersal requirement: patrons with wheelchairs
must have a choice of viewing angles to the field of play.
See Caruso v. Blockbuster-Sony Music Ent. Ctr. at
Waterfront, 193 F.3d 730, 732 (3d Cir. 1999). On the other
hand, it might require that accessible seating provide lines of
sight over standing spectators. See Paralyzed Veterans of
Am. v. D.C. Arena L.P., 117 F.3d 579, 585 (D.C. Cir. 1997),
2 Available at https://www.ada.gov/1991standards/adastd94-
archive.pdf (as revised on July 1, 1994) [https://perma.cc/7VMF-
BKFA].

-- 18 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 19
abrogated on other grounds by Perez v. Mortg. Bankers
Ass’n, 575 U.S. 92 (2015).
Either way, the district court should have used all the
interpretive tools available to determine whether an
ambiguity exists in the first instance.
B.
Assuming the ambiguity of the text, next we consider if
the agency’s interpretation of the regulation was
“reasonable.” Kisor, 139 S. Ct. at 2415. In doing so, we
look to the text, structure, and regulatory history. Id. Here,
the regulatory history for § 4.33.3 strongly suggests that the
law doesn’t include any sightline-over-standing-patrons
requirement and thus DOJ’s contrary interpretation may not
be reasonable.
At its inception, § 4.33.3 was not thought to address
sightlines over standing spectators. It was first proposed by
the Architectural and Transportation Barriers Compliance
Board (“Access Board”), a federal agency composed of 13
Presidentially appointed members and the heads of 12
federal agencies, including DOJ. See 29 U.S.C. § 792(a).
The Access Board is tasked with establishing and
maintaining “minimum guidelines and requirements” for
standards under the ADA. Id. § 792(b)(3)(B).
The Access Board’s first proposed language for § 4.33.3
said: “[w]heelchair areas shall be an integral part of any
fixed seating plan and shall be dispersed throughout the
seating area. They shall . . . be located to provide lines of
sight comparable to those for all viewing areas.” ADAAG,
56 Fed. Reg. 2296, 2380 (Jan. 22, 1991). With this proposed
rule, the Access Board sought comments on the issue of
sightlines over standing spectators:

-- 19 of 27 --

20 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
Section 4.33.3 provides that seating locations
for people who use wheelchairs shall be
dispersed throughout the seating area and
shall be located to provide lines of sight
comparable to those for all viewing areas.
This requirement appears to be adequate for
theaters and concert halls, but may not suffice
in sports arenas or race tracks where the
audience frequently stands throughout a large
portion of the game or event. . . . The Board
seeks comments on whether full lines of sight
over standing spectators in sports arenas and
other similar assembly areas should be
required.
Id. at 2314 (emphasis added). By requesting comments on
whether “lines of sight over standing spectators” should be
required, the Access Board’s interpretation of its own
proposed regulation didn’t include that mandate.
One month later, DOJ announced that it would adopt the
guidelines proposed by the Access Board, along with “any
amendments” made by the Access Board during the
rulemaking process. Nondiscrimination on the Basis of
Disability by Public Accommodations and in Commercial
Facilities, 56 Fed. Reg. 7452, 7478 (Feb. 22, 1991). To that
end, DOJ asked that any comments on the proposed
guidelines be directed to the Access Board. Id.
The Access Board published its final proposed
guidelines that summer. See ADAAG, 56 Fed. Reg. 35408
(July 26, 1991). It made clear that § 4.33.3 is a dispersal
requirement, not a substantive sightline-over-standing-
spectators rule. The Board explained that “[i]ndividuals
with disabilities and their organizations supported the

-- 20 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 21
requirements in 4.33.3 for wheelchair seating spaces to be
dispersed throughout the seating area.” Id. at 35440
(emphasis added). In adopting the measure, the Board
observed:
The requirements in 4.33.3 for dispersal of
wheelchair seating spaces have been
modified. Wheelchair seating spaces must be
an integral part of any fixed seating plan and
be situated so as to provide wheelchair users
a choice of admission prices and lines of sight
comparable to those available to the rest of
the public. A provision has been added for at
least one companion fixed seat to be provided
next to each wheelchair seating space.
Id. (emphasis added).
The Access Board expressly reserved for another day the
issue of sightlines over standing spectators. It said:
The [earlier proposed rulemaking notice]
asked questions regarding row spacing and
lines of sight over standing spectators in
sports arenas and other similar assembly
areas. Many of the persons who responded to
the question stated that they have difficulty
accessing mid-row seats in an assembly area.
Many commenters also recommended that
lines of sight should be provided over
standing spectators.
. . .

-- 21 of 27 --

22 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
The issue of lines of sight over standing
spectators will be addressed in guidelines for
recreational facilities.
Id. In other words, the Board was under the impression that
§ 4.33.3 created a dispersal requirement that did not reach
the issue of sightlines over standing spectators. DOJ
concurrently adopted the Board’s proposed guidelines in
full. It explained that all comments on the proposed rules
had been addressed adequately by the Access Board. See
28 C.F.R. Part 36, App. B, at 632–33.
The next year, the Access Board again signaled that
§ 4.33.3 had no requirement for sightlines over standing
spectators. Discussing that section’s rulemaking history in a
new notice, the Board explained that DOJ had previously
“incorporated” the Board’s guidelines and that the Board
was now seeking information to use in deciding whether to
amend certain provisions of the ADAAG. ADAAG for
Buildings and Facilities; State and Local Government
Facilities, 57 Fed. Reg. 60612, 60613 (Dec. 21, 1992). The
Board recalled that during the initial rulemaking, “[a]n
overwhelming majority of responses favored including a
provision requiring lines of sight over standing spectators in
sports arenas[.]” Id. at 60618. But, the Board explained, at
the time it “felt it was essential to conduct further research”
on the issue, and thus “intend[ed] to address the issue of lines
of sight over standing spectators in the guidelines for
recreational facilities which will be proposed at a future
date.” Id. To that end, the Board sought comments “on the
design issues associated with providing integrated and
dispersed accessible seating locations with a clear line of
sight over standing spectators in arenas, stadiums or other
sports facilities.” Id.

-- 22 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 23
Since the Access Board promulgated § 4.33.3 with the
understanding that it did not reach sightlines over standing
spectators, and DOJ directly adopted that rule, Accessible
Stadiums’ establishment of such a sightline requirement may
be outside § 4.33.3’s “zone of ambiguity.” Kisor, 139 S. Ct.
at 2415–16. Given that the Access Board expressly refused
to read a sightline requirement into § 4.33.3 and asked for
further research on the issue, the district court shouldn’t have
reflexively deferred to DOJ’s contrary interpretation.3
C.
Even if we get this far and determine that § 4.33.3 is
ambiguous and that Accessible Stadiums reasonably
interprets it, we still have further to go before deferring. We
must next determine whether Accessible Stadiums was
DOJ’s “authoritative” or “official position.” Kisor, 139 S.
Ct. at 2416 (simplified). There’s good reason to think
Accessible Stadiums is not—it says as much. The document
contains an explicit disclaimer:
This guidance document is not intended to be
a final agency action, has no legally binding
3 I recognize that Miller found § 4.33.3 to be ambiguous enough to
plausibly include a sightline-over-standing-spectators requirement. See
536 F.3d at 1032. But because Kisor changed the landscape so
significantly, I doubt that Miller is still binding law. Indeed, Miller
acknowledged that it understood “why a reasonable reader might
conclude that as of July 1991, the DOJ’s new ADA regulations did not
address lines of sight over standing spectators,” but then deferred to
DOJ’s contrary interpretation because it was “a reasonable, practical
construction” of the regulation. Id. at 1030–31. None of this satisfies
Kisor’s requirements. Miller didn’t analyze whether DOJ’s
interpretation was within the “zone of ambiguity” or take any of the other
analytical steps that Kisor mandates. In any case, Miller didn’t address
deference to the Accessible Stadiums guidance, so it’s not binding here.

-- 23 of 27 --

24 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
effect, and may be rescinded or modified in
the Department’s complete discretion, in
accordance with applicable laws. The
Department’s guidance documents, including
this guidance, do not establish legally
enforceable responsibilities beyond what is
required by the terms of the applicable
statutes, regulations, or binding judicial
precedent.
Accessible Stadiums at 5. DOJ thus did everything it could
to refute the notion that the document is binding. As Kisor
noted, when an agency itself disclaims the authoritativeness
of its guidance, that’s a strong signal that it is not
authoritative. 139 S. Ct. at 2417. Here, perhaps the district
court should have considered taking DOJ at its word.
D.
Next, we examine the agency’s substantive expertise in
the subject area. Id. Here, I do not question DOJ’s policy
chops when it comes to accessibility issues for patrons using
wheelchairs.
E.
Before we defer, there’s one last step. We must ensure
that the agency’s interpretation is a “fair and considered
judgment.” Id. Several issues call that into doubt with
Accessible Stadiums.
First is unfair surprise. As Miller said, “a reasonable
reader might conclude that as of July 1991, the DOJ’s new
ADA regulations did not address lines of sight over standing
spectators.” 536 F.3d at 1031. If Accessible Stadiums
purports to interpret § 4.33.3, it would surprise the public

-- 24 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 25
and the Access Board to learn that the section did in fact
require sightlines over standing spectators.
Relatedly, if the Access Board’s interpretation of
§ 4.33.3 may be imputed to DOJ, we need not defer to
conflicting agency positions. As Kisor observed, courts
should “only rarely” defer “to an agency construction
conflicting with a prior one.” 139 S. Ct. at 2418 (simplified).
The Third Circuit held that the Access Board’s commentary
about the meaning of § 4.33.3 can be attributed to DOJ. See
Caruso, 193 F.3d at 736. The Third Circuit gave several
reasons for that conclusion:
1) the DOJ referred all comments to the
Board; 2) the DOJ relied on the Board to
make adequate changes based on those
comments; 3) the Board specifically changed
the language of 4.33.3 in response to
comments and explained that change in its
commentary; 4) the DOJ was a “member of
the Board” and “participated actively . . . in
preparation of both the proposed and final
versions of the guidelines,” 28 C.F.R. Part
36, App. B, at 632; and 5) the DOJ’s
commentary stated that the final guidelines
promulgated by the Board adequately
addressed all comments.
Id. at 736. So if the Access Board’s reading—that § 4.33.3
didn’t include a standing-spectator rule—can be attributed to
DOJ, then DOJ’s later position in Accessible Stadiums
creates a clear conflict. In that case, Accessible Stadiums
might not deserve deference.

-- 25 of 27 --

26 L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST .
III.
Based on the above, I would remand with instructions for
the district court to embark on the interpretive task that Kisor
requires. In my view, to resolve this case without deciding
what § 4.33.3 means would be an abdication of the judicial
responsibility to interpret the law. And it’s no answer that
the parties agree that Accessible Stadiums is binding on
them. The parties have no obligations to ensure that the
interpretation of public law is correct. We do. See Marbury
v. Madison, 5 U.S. 137, 177 (1803) (Marshall, C.J.) (“Those
who apply the rule to particular cases, must of necessity
expound and interpret that rule.”).
It is therefore no small matter that the parties ask us to
abstain from interpreting the law and reflexively accept the
Executive’s purported interpretation of § 4.33.3. In matters
of such importance, we need not follow the parties’ lead. As
I’ve previously written:
While it is true that we generally rely on the
arguments advanced by the parties, we never
abdicate our independent role in interpreting
the law. If the parties don’t offer the correct
reading of a particular statute [or regulation],
we are not bound to blindly follow their lead.
Instead, as judges, our duty is to get the law
right. See Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 99 (1991) (“When an issue or
claim is properly before the court, the court is
not limited to the particular legal theories
advanced by the parties, but rather retains the
independent power to identify and apply the
proper construction of governing law.”). As
Justice Ginsburg aptly stated, “a court is not
hidebound by the precise arguments of

-- 26 of 27 --

L ANDIS V. WASH. STATE MLB STADIUM PUB . FACILITIES D IST . 27
counsel.” United States v. Sineneng-Smith,
140 S. Ct. 1575, 1581 (2020). . . . After all,
judges are not like lemmings, following the
parties off the jurisprudential cliff.
Ctr. for Investigative Reporting v. DOJ, 982 F.3d 668, 697
(9th Cir. 2020) (Bumatay, J., dissenting) (simplified).
So while this case is, on one level, about sightlines in
sports stadiums, on a deeper level, it concerns fundamental
questions about the separation of powers. I thus find it
disconcerting that we have no independent review of the
meaning of the law in this case. And with the majority’s
remand, that may never happen. Worse yet, district courts
might mistakenly think that they should still defer to an
agency’s interpretation so long as that interpretation is
minimally plausible. I do not think that courts should have
so little a role in interpreting the law.

-- 27 of 27 --