Today’s blog entry takes a look at three different cases that either expand on prior blog entries or talk about subsequent developments with prior blog entries. This week is absolutely crazy for me as my daughter is graduating high school this week, probably on Friday, and we have company coming in today. So, the blog entry will be pretty short despite covering three different cases. As usual the blog entry is divided into categories and they are: DOJ statement of interest in State of Illinois v. CSL Plasma, Inc.; ADA testers have to show more than just testing a website for ADA compliance in order to have standing; and a Cummings update.



DOJ Statement of Interest in State of Illinois v. CSL Plasma, Inc.


CSL plasma is back for discussion with another case where they are arguing that they are not a place of public accommodation. This one is before Judge Roland in the Northern District of Illinois, Eastern Division. The Eastern Division of Illinois is Chicago and Chicago Metro. We have previously talked about whether plasma centers are a place of public accommodation three times before, see this blog entry. Here, the DOJ takes the position that the 10th Circuit and the Third Circuit are correct in holding that plasma donation centers are service establishments under the plain meaning of title III. They also say that the Fifth Circuit got it wrong when it said that plasma centers were not service establishments. The DOJ conclusion is based upon both a plain reading of the statute, the ADA’s statutory admonition that it needs to be construed broadly, and the ADA’s legislative history. CSL Plasma is a frequent defendant on these matters and is consistent in taking the position that they are not a place of public accommodation. Since there is a circuit court split on the issue, it is only a matter of time before the Supreme Court steps in. I am not at this point in time going to hazard a guess as to what the Supreme Court will do. I have also recently learned that gauging what they will do from oral argument is a very tricky endeavor indeed.



ADA Testers Have to Show More Than Just Testing a Website for ADA Compliance In Order to Have Standing


Previously, I have blogged, such as here, on the courts clamping down on serial plaintiffs and questioning whether tester standing with respect to title II and title III of the ADA is a thing any longer. On that line of cases, the United States District Court for the Northern District of California on May 16, 2022, issued a two-page order dismissing a serial website plaintiff claim in denying leave to amend with respect to the ADA claim. It also declined to exercise supplemental jurisdiction over plaintiff’s Unruh act claim. With respect to supplemental jurisdiction, I previously talked about that in this blog entry.


The key element to note about this case are: 1) plaintiff disclaimed any intention to visit the real estate physical office and did not wish to use the real estate website to facilitate access to services or goods beyond the website itself (a pure tester situation); 2) the Ninth Circuit has never held that the inability to access information on a website as a sole basis for an ADA claim is a situation where a plaintiff could bring a title III action; and 3) no allegations were made that the website’s inaccessibility separately impeded access to the goods or services of the public accommodation.


In short, one can expect defendants, especially if they have some resources, to fight back seriously against serial plaintiffs alleging that their websites are inaccessible by defending on standing grounds. As mentioned here, the combination of Trans Union and Cummings is going to make the life of testers under title II and title III of the ADA quite difficult.



Cummings Update


The Supreme Court almost never grants re-hearings in a case that is has decided. However, Cummings has filed for a rehearing with the Supreme Court. The basis of the rehearing is that somehow the parties as well as the court missed the important fact that the Rehabilitation Act does allow by statute, 29 U.S.C. §794a(a)(1), for emotional distress damages with respect to employment matters. It is only with respect to nonemployment matters, that the Rehabilitation Act is unclear. Further, as mentioned in my blog entry discussing this case, here, the Supreme Court made a broad holding that spending clause legislation, including the Rehabilitation Act and the Affordable Care Act, simply do not allow for emotional distress damages because of traditional contract principles. So, a rehearing is necessary to clear up that the Supreme Court opinion in Cummings only applies to nonemployment situations with respect to the Rehabilitation Act if the court believes that the explicit statutory provision in the Rehabilitation Act for emotional distress in employment matters does not color the decision with respect to emotional distress claims in nonemployment matters. It will be interesting to see what happens because as the petition for rehearing freely acknowledges, rehearings are just about never granted. If anything, the petition for rehearing is a public facing document offering a roadmap for plaintiffs bringing employment discrimination claims under §504 of the Rehabilitation Act to get around motions by the defense to have their emotional distress component of their claims dismissed. It will be certainly interesting to see what the Supreme Court does.


Before signing off, you may wonder why you would bring a §504 of the Rehabilitation Act claim at all in an employment situation and not an ADA title I claim, especially considering the fact that causation under §504 is “solely by reason of,” whereas the ADA per Bostock, which we discussed here, is most likely determining factor. The answer is that the ADA applies to employers of 15 or more individuals. On the other hand, the Rehabilitation Act applies to any entity taking federal funds. So, if an employer has less than 15 people is involved, §504 of the Rehabilitation Act would be the claim alleged and not title I of the ADA.