Consider the same set of facts. Title III’s final implementing contain requirements for hotels to post the availability of accessible hotel rooms, 28 C.F.R. §36.302(e), (don’t get me started on how hotels deal with rooms for Deaf, deaf and HOH customers). Two individuals are self avowed testers that visit websites of hotel to see if the hotels meeting those regulatory requirements. Neither has any intention of visiting those hotels or has any personal need for the information missing from the websites. When they find a hotel that does not meet the regulatory requirements, they bring suit. What result? The two cases that we will discuss have results completely opposite of each other and cannot be reconciled. The 11th Circuit in Laufer v. Arpan, here, holds with three different opinions that the plaintiff has standing in this case. On the other hand, the Second Circuit in Harty v. West Point Realty Inc., here, unanimously holds that the plaintiff lacked standing. We will discuss both. As usual, the blog entry is divided into categories and they are: Opinion for the Laufer court (Judge Newsom); Judge Jordan concurring opinion; Judge Newsom concurring opinion; Harty Court’s Reasoning; Can Havens Realty be reconciled with TransUnion/my thoughts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Opinion for the Laufer Court (Judge Newsom)
- Whether an intangible harm is sufficient for concreteness, involves exploring whether the alleged injury bears a close relationship to the harm traditionally recognized as providing a basis for lawsuits in American courts. Congressional judgment is instructive and important in that respect because Congress is well-positioned to identify intangible harms meeting Article III requirements.
- A reviewing court has to independently decide whether a plaintiff has suffered a concrete harm under Article III because Congress cannot use its lawmaking power to transform something that is not remotely harmful into something that is (see our discussion of the TransUnion case, here).
- In Sierra, which we discussed here, the 11th Circuit held that a culturally deaf individual suffered a concrete stigmatic injury when he could not understand videos a city posted on its official website for which it refused to provide closed captioning.
- An individual who suffers an intangible injury from discrimination does have standing if he personally experiences the discrimination.
- Discrimination itself through the perpetuation of archaic and stereotypic notions thereby stigmatizing members of the disfavored group as innately inferior can cause serious non-economic injuries to those persons denied equal treatment solely because of their membership in the disfavored group.
- In the 11th Circuit, a plaintiff can recover damages for emotional distress for a violation of §504 of the Rehabilitation Act.
- Emotional injury resulting from illegal discrimination is sufficient to constitute a concrete injury as it is a concrete harm existing in the real world.
- The Supreme Court has affirmed that discriminatory treatment in some shape or form is a concrete de facto injury that Congress may elevate to the status of a legally cognizable injury.
- Allegations that plaintiff suffered frustration and humiliation and a sense of isolation and segregation is adequate for pleading a concrete stigmatic injury. That is, her emotional injury is her emotional injury that affects her and a personal and individual way and is therefore sufficiently particularized.
- While the pleadings are adequate to proceed forward, that is a different kettle of fish from whether as a factual matter plaintiff has shown that she suffered the requisite frustration and humiliation as a result of viewing the websites. It will be up to the district court to figure that out, and it may conduct an evidentiary hearing to do that. Further, it will be for the district court to figure out whether an imminent future injury is involved as well as whether the traceability and redressability requirements are satisfied.
- The court took no position with respect to whether plaintiff properly alleged an informational injury as it did not feel necessary to visit that question in light of its decision on stigmatic injury.
Judge Jordan Concurring Opinion
- Plaintiff has alleged sufficient facts for an informational injury.
- The United States Supreme Court has previously ruled in Havens Realty Corp. that testers have standing to sue with respect to the Fair Housing Act, here (see also V below).
- The 11th Circuit has applied that Havens Realty to allow for standing in a title III matter with respect to architectural barriers as title III antidiscrimination and right of action provisions are similar to the Fair Housing Act provisions at issue in the Supreme Court decision upholding tester standing.
- In a footnote, Judge Jordan notes that the 10th and Ninth Circuits have also applied Havens Realty to allow for tester standing under title II as well with title III of the ADA.
- The District Court confused standing with the merits of the claim with respect to whether the plaintiff has a substantive right to have certain information disclosed.
- Where a person is entitled under federal law to information on certain topics and no information is provided, that information has been kept or withheld from the person.
- Havens Realty held that depriving someone of information to which one is legally entitled constitutes a cognizable injury under Article III of the U.S. Constitution.
- The 11th Circuit has previously held that a plaintiff suffers an injury in fact when the plaintiff fails to obtain information that must be publicly disclosed pursuant to a statute.
- Requiring the plaintiff to call the hotel to find out everything she wanted to find out is an additional burden that 28 C.F.R. §36.302(e)(1)(ii) is designed to avoid. That regulation specifically provides that individuals with disabilities should be able to make reservation for accessible guest rooms in the same manner as individuals who do not need accessible guest rooms.
- It wasn’t Congress’ intention in enacting the Fair Housing Act to require individual to expend extra energy to acquire accurate information that the individual is legally entitled to and the ADA is no different.
- It is difficult to understand why the accessibility information missing from the hotel’s website is not relevant to a person with a disability who is acting as a tester to ensure compliance with the ADA. After all, a Fair Housing Act tester has no intention of actually renting from that particular landlord and yet the Fair Housing Act tester was held to have standing in Havens Realty.
- The ADA’s antidiscrimination provisions states that no individual shall be discriminated against on the basis of disability, 42 U.S.C. §12182(a), and when it comes to prohibited activities, “no individual” is the same as, “any person.” That is to say, “no individual,” and “any person,” are broad terms necessarily encompassing testers.
- There is no difference between being provided the wrong information in violation of federal law and being denied the information entirely in violation of federal law when it comes to establishing a cognizable injury.
- The plaintiff in Havens Realty did not need to allege downstream consequences in order to establish injury, so it is hard to imagine why the plaintiff in this case needs to do so.
- Harty, to be discussed below, doesn’t add up because how is a self-proclaimed tester seeking to ensure ADA compliance any different than a self-proclaimed tester seeking to ensure compliance with the Fair Housing Act. There aren’t any court decisions that answer that question persuasively. So, the 11th Circuit is bound to follow Havens Realty, which allowed tester standing.
- Havens Realty rested in part on the notion that an injury in fact can exist simply by virtue of the violation of a statutory right (see also V below). However, the Supreme Court seems to be headed in a different direction. Nevertheless, Havens Realty remains on the books and therefore, has to be followed.
- Even if you assume that downstream consequences are required, stigmatic harm works for that purpose.
Judge Newsom Concurring Opinion
- The Supreme Court has said that in determining whether an intangible harm results in an injury in fact, both history and the judgment of Congress have to play important roles.
- In a pair of decisions issued nearly 40 years ago, the Supreme Court recognized that discrimination could give rise to a stigmatic injury sufficient to confer Article III standing.
- In light of recent Supreme Court opinions, the place of stigmatic injury is confusing. That is, it simply isn’t clear how and under what conditions the stigmatic injury survives as a basis for standing under Spokeo/TransUnion.
- TransUnion says that courts should not automatically equate statutory violation with concrete injuries and it is unclear whether statutory violations need to have downstream effects so as to justify standing.
- The rest of Judge Newsom’s concurring opinion is devoted to Judge Newsom’s view that there are two defensible historical approaches to Article III case or controversy requirement but TransUnion is not one of them. The two approaches are: 1) a case exists whenever the plaintiff has a cause of action; and 2) only the particular common-law causes of action existing at the time of the founding fathers, 1787, can serve as a valid analog for modern-day Article III cases. He also argues, as he did in Sierra, that Congress cannot give anyone else, including private parties, a right to sue on behalf of the community and seek a remedy accruing to the public, as the ADA does if it allows tester standing. In a tester case, the tester literally manufactures her own standing by bringing herself to the source of her own injury. Accordingly, that violates Article II the Constitution because it is exactly the type of proactive enforcement discretion properly reserved to the executive branch. For example, the plaintiff in this case exercises executive style enforcement discretion by freely choosing how vigorously the law should be enforced by deciding whether to bring one lawsuit, a dozen, or even hundreds. There isn’t even an external check on that choice. There is no limit to the number of defendants that a tester can investigate, decide to sue, and then obtain the necessary redress from except for her and her attorneys time, will, and money. Those are precisely the kinds of decisions made by executive branch officials and can’t be delegated to private parties under Article II of the Constitution.
Harty Court’s Reasoning
- Three things must be established for a plaintiff to have article III standing: 1) an injury in fact; 2) a causal connection between his injury and the conduct complained of; and 3) the injury will be addressed by a favorable judicial decision.
- Any injury must be particularized and concrete. Particularized injuries affect the plaintiff in a personal and individual way, while concrete injuries are physical, monetary, or cognizable intangible harms traditionally recognized as providing a basis for a lawsuit in American courts.
- In TransUnion, the Supreme Court said that a plaintiff has standing to bring a claim for monetary damages following a statutory violation only when he or she can show a current or past harm beyond the statutory violation itself.
- TransUnion now makes clear that the material risk standards applies only with respect to injunctive relief and that in a suit for damages, mere risk of future harm, standing alone, cannot qualify as a concrete harm.
- Plaintiff does not allege anywhere in his complaint that he was using the website to arrange for future travel. In fact, he acknowledges that the review of the website was strictly done in his capacity as a tester and not as a prospective traveler seeking a wheelchair accessible hotel in West Point.
- Article III grants federal courts the power to redress harms that defendants caused plaintiff’s and not a freewheeling power to hold defendants accountable for legal infractions.
- Since the Plaintiff asserted no plans to visit West Point or the surrounding area, plaintiff cannot allege that his ability to travel was hampered by the website in a way that caused him concrete harm.
- Plaintiff’s request for injunctive relief fares no better because allegations that he intends to return to the website and utilize the website to reserve a guest room is not sufficiently imminent to create an injury in fact. Someday intentions, without any description of concrete plans, do not support a finding of actual or imminent injury per Article III.
- The informational injury claim fares no better because plaintiff has to allege downstream consequences of failing to receive the required information and has not done so. That is, plaintiff has to show that he has an interest in using the information beyond bringing the lawsuit.
- Plaintiff’s complaint does not specify how the website violated ADA regulations or how those alleged violation discriminated against disabled people.
- Even if the ADA labeled all violations of the ADA and its implementing regulations that discrimination, which it doesn’t do, TransUnion makes clear that a statutory violation alone is no longer sufficient for Article III standing.
- Dismissing a case with prejudice is an entirely different matter than dismissing a case without prejudice without leave to amend. The court was perfectly correct in dismissing the case without prejudice denying leave to amend rather than dismissing the case with prejudice.
- In a footnote, the court notes that while testers can have standing, even testers have to show that they suffered an Article III injury in fact.
Can TransUnion Be Reconciled?/My Thoughts (§ added April 13, 2022)
Richard Hunt frequently blogs on standing. In one of his blog entries on this case, he takes the position that Havens Realty cannot be reconciled with TransUnion. Richard may very well have a point. However, I wanted to see if it was possible for Havens Realty to survive after TransUnion, and so here goes. Keep in mind that the Supreme Court rarely likes to explicitly overrule prior decisions. Instead, they overrule it without saying so. So, let’s see from looking at the reasoning of the opinion in Havens Realty, which was unanimous by the way, if we can distinguish Havens Realty. Two statements from the unanimous opinion and one statement from the concurring opinion are critical for seeing how Havens Realty might be distinguished from TransUnion and they are:
- A tester who has been the object of a misrepresentation made unlawful under §804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the act’s provisions.
- Footnote 14: Congress’ decision to confer a broad right of truthful information concerning housing availability was undoubtedly influenced by congressional awareness that the intentional provision of misinformation offered a means of maintaining segregated housing. Various witnesses testifying before Congress recounted incidents in which black persons seeking housing were falsely informed that housing was not available.
- Justice Powell, concurring: distinct and palpable injury remains a minimal constitutional requirement for standing in a federal court.
- My thoughts: There are ways for Havens Realty to still be good law even after TransUnion. The first way is to find that a hotel website ADA tester does not have standing while a Fair Housing Act tester does is to say that the Fair Housing Act contains an explicit statutory provision whereas the ADA does not. The hotel disclosure rules are in the title III final implementing regulations and are not statutory. Second, distinct and palpable injury still remains the minimum standard. Third, title III of the ADA does not allow for damages. So therefore, emotional distress of the kind faced by a tester is not sufficient to justify standing. Finally, even if Cummings winds up holding that emotional distress damages are available under §504 of the Rehabilitation Act, that kind of emotional distress quite arguably differs from the emotional distress suffered by a tester who willingly brings a lawsuit upon themselves.
- There is clearly a circuit court split that cannot be reconciled. I fully expect this issue to come before the Supreme Court, perhaps from Arpan seeking review. It will be interesting to see how the Supreme Court reconciles tester standing with tester standing under the ADA and its recent jurisprudence with respect to standing. If it does go to the Supreme Court, I would expect Laufer to lose with the only question being how and what it means for persons with disabilities in the future.
- Richard Hunt blogged on this as well, here, and I commend it to your reading. He and I have been back channeling. An argument that he makes is that title III of the ADA simply does not allow for damages of any kind. So, how could stigmatic injury be sufficient for standing when the ADA itself does not allow for damages for that kind of injury when it comes to title III. My question back to him was the Supreme Court is likely to allow for emotional distress damages under §504 of the Rehabilitation Act in Cummings, discussed here, and whether that would change the analysis. His response was that it certainly moves things closer to justifying standing for §504 cases but is the kind of injury suffered by a tester the same kind of emotional distress suffered by someone personally impacted by the discrimination in a situation not involving a testing paradigm, i.e. a tester without more-a demonstrated desire to take advantage of the goods and services of a place of public accommodation- is arguably not personally denied equal treatment by the discriminatory conduct. After all, a tester as Judge Carnes noted in his concurring opinion, willingly invites a lawsuit. Also, allowing for emotional distress damages in §504 cases does not affect the title III remedies paradigm at all.
- We discussed TransUnion previously, as noted above, one thing that struck me as strange about its paradigm was basic separation of powers principles. That is, the legislature makes the law, the judiciary interprets it, and the executive branch enforces it. So, having independent review of standing above and beyond a statutory violation seems to cross into legislative nullification, or being a super legislature, in a way.
- Tester standing is perfectly okay under the Fair Housing Act, why isn’t it okay under title III of the ADA? (but see V).
- The back-and-forth I have been having with Richard Hunt makes a great deal of sense. It is hard to understand how emotional injury can justify standing if it isn’t the kind of relief that you can get from a lawsuit.
- With respect informational injury, what downstream consequences are sufficient to justify standing remains to be worked out.
- Judge Newsom’s argument about how testers and particularly serial plaintiffs set up a violation of Article II of the U.S. Constitution is one that he has talked about before and will be interesting to see if any courts take him up on that argument.
- Not every final implementing regulation allows for a private cause of action. It depends upon how close that final regulation is to the actual statute. Here, it isn’t the ADA that requires disclosures by the hotel, rather it is the final implementing regulations for title III of the ADA that requires the disclosures.
- Transunion was a 5-4 decision. Soon to be Justice Brown-Jackson will be replacing Justice Breyer shortly. It will be interesting to see how TransUnion plays out depending upon its context.
- When I was back channeling with Richard Hunt, he came up with some interesting ideas as to how to stop this massive serial litigation over internet accessibility but yet get accessibility for people with disabilities. His ideas included: A)Websites created after x date must meet WCAG 2.1 AA; B). Websites created before x date must be brought into compliance with WCAG 2.1 AA within 24 months to the extent it is readily achievable; C). All websites must meet WCAG 2.1AA in 48 months; D).DOJ require that website vendors sell accessible websites except for items under end user control. WordPress, Tumblr, and others would be treated as operators of websites they host, which would incentivize them to create accessible websites; E). Website owners would be permitted to sue 3rd party website operators for indemnity in any lawsuit brought against the owner. Once again, that incentivizes the party with sufficient expertise and control to make the website accessible;
- All of Richard’s ideas are very good ideas (§10(E) might require legislation). I would add that there should also be a provision that WCAG compliance should not trump meaningful accessibility.
- Prof. Emeritus of Nova Southeastern Law School, Michael Masinter, pointed out to me the reason for the confusion of how Judge Newsom actually writes the opinion for the court as well as a concurrence, which is a bit unusual. Prof. Masinter pointed out that Judge Newsom had no other choice but to do it that way because he can’t challenge Supreme Court paradigms in a majority opinion/opinion for the court. He can only challenge it through a concurrence. Thanks you!! Prof. Masinter.