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No. 09-1021
No. 09-1023
Appeals from the United States District Court for the District
of Maryland, at Greenbelt.
Alexander Williams, Jr., District
Judge. (8:06-cv-02266-AW)
Argued:
Decided:
ARGUED:
Roger
William
Yoerges,
STEPTOE
&
JOHNSON,
LLP,
Washington, D.C., for Appellants/Cross-Appellees.
Joseph B.
Espo, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for
Appellees/Cross-Appellants.
ON BRIEF: Kathryn J. Gainey,
STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellants/CrossAppellees.
Marc P. Charmatz, Rosaline Crawford, NATIONAL
ASSOCIATION OF THE DEAF, Law And Advocacy Center, Silver Spring,
Maryland, for Appellees/Cross-Appellants.
PER CURIAM:
Defendants Pro Football, Inc. and WFI Stadium, Inc.
operate, respectively, the Washington Redskins football team and
FedEx Field, where the Redskins play home games.
three
individuals
regularly
attend
who
are
Redskins
deaf
or
hard
games
at
FedEx
of
Plaintiffs are
hearing
Field.
and
who
Plaintiffs
to
provide
auxiliary
access
to
the
content
of
Soon after
The district
court nevertheless held that the case was not moot and granted
summary judgment to plaintiffs.
The district courts holding rested in part on the
fact that defendants were not providing plaintiffs with access
to the lyrics to music played over the stadiums public address
system.
to
defendants
music
lyrics
goods,
in
order
services,
to
fully
privileges,
and
and
equally
enjoy
facilities.
the sport of football, 1 we agree with the district court that the
music played over the public address system during Redskins home
games is part of the football game experience that defendants
provide as a good or service, and that the ADA requires full and
equal access to the music lyrics.
district
courts
declaratory
judgment
requiring
defendants
to
Fields
public
address
system.
We
also
affirm
the
I.
A.
Plaintiffs
Shane
Feldman,
Brian
Kelly,
and
Paul
Defendant
Pro
Football,
operates
Inc.
the
is
Maryland
Redskins.
corporation
Defendant
WFI
that
Stadium,
owns
Inc.
and
is
Redskins
91,000
play
fans.
home
games.
Defendants
FedEx
have
Field
always
seats
more
provided
than
assistive
football
season
marked
the
first
time
that
defendants
This
defendants
and
defendants
in
holder
who
change
was
prompted
plaintiff
Feldman.
2003,
was
introducing
deaf
listening devices.
and
unable
by
communications
Feldman
himself
to
as
benefit
first
emailed
season
from
between
ticket
assistive
J.A. 94.
to
understand
the
stadiums
emergency
announcement.
to caption the Jumbotron because doing so would take up onethird of the screen, significantly reducing the remaining video
5
portion.
As
an
alternative,
captioning devices.
defendants
proposed
hand-held
In February
accommodation
obligation
to
under
the
ADA,
full
and
equal
afford
FedEx
Field
enjoyment
had
of
its
legal
goods,
stadiums
public
scoreboards/Jumbotrons.
J.A.
system
announcements
on
the
101.
Specifically,
the
NAD
Id.
The
defendants
violating
the
ADA
and
an
injunction
access
to
the
benefits
6
of
[defendants]
facilities,
J.A. 16.
Specifically,
all
of
penalties
called,
the
plays
safety
that
and
just
emergency
occurred,
all
information,
of
the
and
any
Id.
over
the
captioned
was
an
defendants
started
address
emergency
system
evacuation
captioning
game
that
defendants
video.
However,
information
shortly
Feldmans
criticisms
of
the
hand-held
captioning
They
stadium at the fifty-yard line and are visible from almost every
seat.
On
the
LED
boards
defendants
captioned:
(1)
pre-game
the
field;
(6)
announcements
regarding
check
On the
evacuation
Additionally,
defendants
video
played
provided
before
captioning
in
the
the
game.
concourse
The concourse
expert
Lawrence
National
Center
for
Goldberg.
Accessible
Goldberg
Media,
founded
research
the
center
defendants
were
providing
and
recommended
captioning
of
public
address
recommendation
on
the
system
broadcast.
principle
that
Goldberg
if
there
based
is
his
spoken
or
explained
in
his
deposition:
[I]f
audio
J.A. 399.
is
heard
by
As
a
plaintiffs
2008.
cross-moved
for
summary
judgment
in
February
the
complaint
responded
and
that
defendants
would
there
could,
do
so
remained
with
the
J.A. 109.
flip
indefinitely.
Plaintiffs
live
controversy
of
switch,
because
return
to
that
defendants
were
not
Plaintiffs also
providing
full
aural
not
satisfy
the
heavy
burden
of
showing
no
reasonable
On the
court
relied
upon
the
ongoing
10
disputes
regarding
the
defendants
broadcast
to
provide
over
could
undue
particular
Fields
aids
public
for
the
address
aural
system,
provide
auxiliary
burden.
auxiliary
FedEx
auxiliary
access
Because
aid,
the
the
court
ADA
to
the
does
music
not
declined
to
lyrics
dictate
issue
a
an
make
available
typed
copies
of
the
lyrics
to
II.
On appeal defendants maintain that the district court
erroneously held (1) that plaintiffs claims were not moot and
(2) that the ADA requires defendants to provide auxiliary aids
for aural content broadcast over FedEx Fields public address
system.
Defendants
take
particular
issue
with
the
courts
address
system.
Plaintiffs
cross
appeal,
arguing
that
the
radio
program
Alternatively,
as
outside
plaintiffs
the
contend
scope
that
of
the
their
complaint.
request
for
parties.
We
affirm
the
district
courts
order
in
its
entirety.
A.
We
first
address
defendants
assertion
that
Green v. City of
A case is moot
Powell v.
v.
(1980)
Geraghty,
445
U.S.
388,
397
(quoting
Henry
P.
12
the
lawsuit
cease.
The
voluntary
discontinuance
of
lawsuit.
1998).
Lyons
PShip, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th
Cir. 2001) (quoting United States v. W.T. Grant Co., 345 U.S.
629, 633 (1953) (emphasis added)).
632).
While we commend defendants for providing most of the
relief
that
plaintiffs
requested
and
for
engaging
with
their
expectation
that
heavy
they
burden
will
of
repeat
showing
their
no
reasonable
alleged
wrongs.
See
Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th
Cir. 2007)
timed
cessation
to
anticipate
analysis).
suit
is
Further,
relevant
this
is
not
to
the
case
voluntary
in
which
Given the
case
that
defendants
heavy
burden
under
the
voluntary
The
not provided auxiliary aids for the lyrics, the court concluded
that this issue also remained live.
As explained below, we
for
relief
remains
viable,
whether
that
claim
was
the
information
Because
we
that
agree
defendants
with
the
are
district
voluntarily
court
that
short
and
plain
statement
of
15
the
claim
showing
that
the
defendant fair notice of the claim and the grounds upon which
it
rests.
(2007).
Bell
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
555
Id.
Id.
motion.
mentions
music
announcements
Although
lyrics,
made
over
the
complaint
it
does
the
public
never
refer
repeatedly
address
explicitly
system
to
and
J.A. 8, 10,
plaintiffs
requested
captioning
of
any
other
J.A. 16.
J.A. 15.
Music is
football
game
as
experienced
from
the
stadium
bowl,
an
encompass
program.
As
specifically
request
with
for
the
mention
captioning
music
captioning
the
lyrics,
the
Red
Zebra
plaintiffs
radio
program
radio
did
not
until
they
the Red Zebra program is not part of the aural content broadcast
over FedEx Fields public address system, which plaintiffs did
repeatedly reference in their complaint.
the
stadium
bowl.
Although
the
complaint
refers
to
the
as
the
announcements
J.A. 16.
made
over
the
public
address
J.A. 10.
of
the
allegations
to
be
proven
is
essential
to
Gilbane
them.
Bldg.
Co.
v.
Fed.
Reserve
Bank
of
of Rule 15(b)(2) suggests that the non-pled issue must have gone
to
trial.
pleading
The
when
rule
the
is
facts
designed
proven
at
to
allow
trial
amendment
differ
from
of
those
of
appeals
are
regarding
whether
Rule
See Ahmad v.
Furlong,
435
F.3d
circuit split).
Doughney,
263
1196,
1203
n.1
(10th
Cir.
2006)
(noting
359,
367
(4th
Cir.
2001),
we
affirmed
the
first
judgment.
allow
time
in
the
plaintiffs
motion
for
summary
formal
plaintiffs
constructive
amendment
of
subsequently
amendment
the
complaint
raised
claim,
the
complaint
of
to
the
include
court
by
the
recognized
granting
summary
Id. at
367-68.
Here,
grant
summary
in
contrast,
judgment
on
the
district
plaintiffs
court
radio
declined
station
to
claim
to
plaintiffs
belated
claim,
the
defendant
also
Id. at 367.
the
radio
program
was
not
19
raised
in
the
complaint
and
Moreover, the
the
field
in
the
concourse
areas.
Defendants
only
was
footnote
observing
that
none
of
plaintiffs
radio
broadcast
is
superior
to
broadcasters.
that
J.A.
provided
21
by
(emphasis
the
television
network
in
original).
also
argue
that
implied
consent
may
be
namely
Goldbergs
expert
report
that
recommended
Campbell v. Bd.
of Trs. of Leland Stanford Junior Univ., 817 F.2d 499, 506 (9th
20
Cir. 1987).
this record.
D.
Defendants
requiring
them
to
challenge
provide
the
district
auxiliary
aids
courts
that
enable
holding
equal
J.A. 578.
The court
advertisements,
referee
calls,
Id.
safety/emergency
Defendants contend
this sweeps far broader than what the ADA requires, particularly
with regard to the lyrics to music broadcast over the stadiums
public address system.
Title III of the ADA mandates that individuals who
visit places of public accommodation like FedEx Field may not
be discriminated against on the basis of disability in the full
and
equal
enjoyment
of
the
goods,
services,
facilities,
42
U.S.C.
12182(a).
Title
III
defines
21
12182(b)(2)(A)(iii).
regulation
public
implementing
accommodation
Title
shall
Department
III
furnish
of
further
Justice
provides
appropriate
(DOJ)
that
auxiliary
a
aids
28 C.F.R. 36.303(c).
described
in
the
district
courts
order
would
is
defendants
therefore
to
limited
provide
to
auxiliary
whether
aids
for
the
the
Our
ADA
requires
aural
content
provide
plaintiffs
with
full
and
equal
enjoyment
of
Id.
accommodation
must
communicate
to
individuals
who
are
for Title III indicates that the type of auxiliary aid that
ensures effective communication varies by context.
of
Justice,
Disabilities
4.3200.
The
Civil
Act:
Rights
Title
regulation
III
Division,
Technical
contemplates
22
The
Americans
Assistance
that,
U.S. Dept
like
Manual
the
with
III-
type
of
auxiliary
aid,
auxiliary
aids
the
is
content
also
that
must
be
communicated
context-sensitive.
What
by
constitutes
effective
auxiliary
useless
aids
to
communication
beyond
requires
assistive
plaintiffs,
to
defendants
listening
convey
to
devices,
the:
(1)
provide
which
are
game-related
aural content to have full and equal access to the goods and
services that defendants provide at FedEx Field.
To resolve the issue, we must determine the goods and
services
defendants
provide.
First
and
foremost,
game
on
level
as
equal
as
defendants
For plaintiffs to
possible
with
hearing
information,
advertisements,
and
public
service
Without
auxiliary
aids
that
provide
emergency
that
understandable
instructions
will
accompany
an
they
Redskins
communicate
stature
organizations.
support
which
the
causes
and
to
spectators
recognition
Advertisements
Redskins.
the
Public
Redskins
among
message
businesses
communicate
service
support
and
about
which
and
announcements
how
the
other
entities
indicate
spectators
might
J.A. 577-78.
They provide
Music played
participation.
The
lyrics
may
be
nonsensical,
as
entertainment
experience.
Without
access
to
lyrics
planned
and
synchronized
promotional
entertainment
that
C.F.R.
pt.
36
App.
B.
What
is
more,
full
and
equal
25
DOJs
rulemaking
activity
Id.
does
not
alter
this
The
on
the
Basis
of
Disability
by
Public
that large stadiums provide captioning for patrons who are deaf
or
hard
of
hearing
announcements
made
34532.
The
notice
several
major
for
over
safety
the
public
also
announced
stadiums,
including
and
emergency
address
the
Id.
system.
DOJs
FedEx
information
awareness
Field,
at
that
currently
The
notice
solicited
comments
on
the
effect
of
Id.
26
III
of
the
ADA.
Nondiscrimination
on
the
Basis
of
C.F.R.
36,
available
at
http://www.ada.gov/regs2010/titleIII_2010/titleIII_combined.html.
With respect to the issue of captioning of all public address
announcements,
rather
than
simply
safety
and
emergency
Id.
technology
concluded
that
by
further
the
public.
consideration
Id.
and
Thus,
review
maintain
that
the
DOJs
is
the
DOJ
prudent
Id.
solicitation
of
the
stadiums
DOJ
to
does
not
provide
interpret
auxiliary
the
ADA
access
to
require
to
large
game-related
We disagree.
This action
demonstrates
to
like
the
DOJs
experienced by plaintiffs.
alertness
problems
those
The earlier
Disability
by
Public
Accommodations
effect
of
such
and
in
Commercial
requirement.
This
evaluation
indicate that large stadiums like FedEx Field need only furnish,
at most, auxiliary access to play-by-play game information.
The
notice cited play-by-play information as one example of gamerelated information and mentions other relevant announcements,
leaving open the possibility that spectators who are deaf or
hard of hearing must have auxiliary access to the promotional
and entertainment content of a stadium bowls public address
system in order to fully and equally enjoy the goods, services,
facilities, and privileges of the stadium.
28
III.
For
the
foregoing
reasons,
the
judgment
of
the
district court is
AFFIRMED.
29
court
in
this
case
erred
by
In my view, the
announcing
broad
aural content standard, the district court set out a rule that
would potentially require that all content broadcast over the
public address system at an athletic event at a public stadium
be captured and provided to deaf or hearing impaired individuals
in order to comply with the ADA, even though the ADA itself does
not
include
such
requirement,
instead
of
following
the
goods,
services,
facilities,
privileges,
advantages,
take
or
42 U.S.C.
steps
to
ensure
that
hearing-impaired
(emphasis
added).
The
42 U.S.C.
Department
of
public
aids
and
accommodation
services
shall
where
furnish
necessary
appropriate
to
ensure
amplifiers,
effective
28 C.F.R.
. . . [q]ualified
transcription
auxiliary
interpreters,
services,
assistive
written
listening
notetakers,
materials,
devices,
computer-aided
telephone
assistive
handset
listening
of
making
aurally
delivered
materials
available
to
accommodation
consideration
disability.
to
the
the
requirement
request
of
that
the
it
give
individual
primary
with
Thus,
to
hearing-impaired
individuals,
public
accommodations
and
(2)
if
this
requirement
is
triggered
and
accommodation
need
not
provide
an
auxiliary
aid
or
the
present
case,
under
this
analysis,
the
first
be
provided
FedExField.
whether
the
to
auxiliary
case.
effective
communication
at
aids
effective communication.
of
ensure
aids
or
chosen
by
Defendants
result
in
services
offered
by
Defendants
in
this
providing
assisted-listening
devices
as
an
auxiliary
aid
or
calls,
game
announcements,
emergency
announcements,
and
concession
areas. 1
However,
the
professional
standard
of
not
captioning
song
lyrics
due
to
result
further
in
effective
finding
auxiliary
aid
communication.
that
communication
simply
for
watching
or
service
These
findings
did
the
game
not
rightly
Plaintiffs,
without
provide
would
and
have
any
effective
supported
undue
burden
or
fundamental
alteration
could
be
established.
However, the district court went beyond this analysis, and
rather than declaring that an auxiliary aid of some type was
necessary
for
effective
communication,
the
district
court
and
information
hard
of
hearing
broadcast
over
system at FedExField.
fans
the
equal
access
stadium
bowl
to
the
public
aural
address
equal
enjoyment
of
the
at
place
of
public
and
services
communication.
that
provide
an
effective
method
of
the
auxiliary
aids
actually
provided
resulted
in
addition,
the
the
auxiliary
district
aids
that
courts
were
failure
provided
to
consider
resulted
in
Defendants
of
captioning
effective communication.
on
the
LED
boards
resulted
in
song lyrics, for which the district court concluded that equal
access was required, apart from any analysis of the auxiliary
aids that were being provided.
in
this
case
were
not
addressed,
leaving
ongoing
questions
that
concourse
area,
was
provided
were
on
sufficient
the
to
LED
boards
result
and
in
in
the
effective
Of
sufficient
to
result
in
effective
communication.
In
or
fundamental
alteration,
which
were
not
raised
by
consider
further
these
various
consideration
issues,
but
review
is
and
has
concluded
prudent
that
given
the
would
be
matters
rulemaking,
litigated
below
or
but
on
of
many
public
of
appeal,
importance
these
given
issues
and
were
Defendants
potential
not
fully
decision
to
boards
and
on
the
video
screens
in
the
concourse
area.
broad
rule
set
out
in
the
judgment.
37
district
courts
declaratory
the
district
court,
and
respectfully
dissent
from
the
38