Can a single person cause a split among the US Court of Appeals all by herself? The answer in the case of Debra Laufer is absolutely. Today’s blog entry explores the published decision, here, from the Fourth Circuit on February 15, 2023 holding that Laufer has standing to pursue her case against a hotel that she believed was not in compliance with the hotel reservation rule. She is undoubtedly headed to the United States Supreme Court because of the Circuit Court split. The facts are really straightforward. Laufer is a tester with no intention of returning to the hotel but with an intention of returning to the website to see if the hotel reservation rule, 28 C.F.R. §36.302(e), is complied with. The question is whether she has standing to pursue such a claim in that set of circumstances. As usual, blog entry is divided into categories and they are: 1) court’s reasoning that Laufer does have standing to proceed; 2) court’s distinguishing of contrary decisions; and 3) and thoughts/takeaways.
Court’s Reasoning That Laufer Has Standing to Proceed
- In order to possess article III standing, a plaintiff must suffer an injury in fact-an invasion of a legally protected interest that is: 1) concrete and particularized; 2) actual or imminent, which also requires a causal connection between the injury and the conduct complained of; 3) likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision; and where injunctive relief is concerned 4) plaintiff must show a real or immediate threat of being wronged again.
- The Fifth, Tenth, and Second Circuits have all held that either Laufer or another identically situated plaintiff did not have standing because they did not sufficiently allege a proven intention or need to actually book rooms at the defendant’s hotels.
- The 11th Circuit held that Laufer had standing to sue based on her allegation of stigmatic injury. That particular decision, which we discussed here, generated three concurring opinions, including one stating that Laufer also has standing premised on alleged informational injury.
- The First Circuit, which we discussed here, also ruled in favor Laufer based on her allegation of an informational injury alone. In both the First and 11th Circuit cases, Laufer admitted that she had no intention or need to book rooms at the hotels, but the court did not see that issue as an impediment to standing.
- Informational injury is sufficient for standing under article III under a line of Supreme Court cases starting with Havens Realty Corporation v. Coleman, here, and two others.
- In Havens, the Supreme Court described testers as individuals with or without an intent to rent or purchase a home or apartment posing as renters or purchasers for the purpose of collecting evidence of unlawful steering practices. The Supreme Court found that the Fair Housing Act’s discriminatory representation provision made it unlawful for an individual or firm to represent to any person because of race, color, religion, sex, or national origin that a dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. That is, Congress had conferred on all persons a legal right to truthful information about available housing.
- Havens held the discriminatory representation provision to be the type of enactment under which actual or threatened injury required by article III can exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.
- Havens said that it simply didn’t matter that the tester may have approached the real estate agent fully expecting that he would receive false information and without any intention of buying or renting a home. That person could still suffer an injury within the meaning of the discriminatory representation provision.
- In a separate case, the Supreme Court held that just because other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure under the Federal advisory committee act does not lessen the plaintiff’s asserted injury. In another case, the Supreme Court held that a plaintiff suffers an injury in fact when they failed to obtain information that must be publicly disclosed pursuant to a statute. In both of these cases, the plaintiff identified uses for the information sought.
- Laufer alleged that she failed to obtain information that must be publicly disclosed pursuant to a statute.
- It doesn’t matter that Laufer is a tester because a tester didn’t matter to the Havens Court.
- The hotel reservation regulation is designed to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs. Nothing in that hotel reservation regulation or elsewhere in the ADA expressly requires an intention to book a hotel room to prove a discriminatory failure to provide accessibility information. That is, nothing says that the information only needs to be provided to the individual where that individual actually wants to make a reservation.
- If a black tester has standing in Havens because of a right to get truthful information under the statute, then Havens also mean that Laufer has standing because she was denied information she has a legal entitlement to.
- Even though Laufer’s alleged informational injury may be widely shared, it is also concrete and particularized to her.
- The location of the informational injury is not the hotel itself, but rather the hotel reservation website. Since she intends to continually return to the website to check for compliance, she has sufficiently alleged an intent to return.
Court’s Distinguishing of Contrary Opinions
- The Second Circuit interpreted TransUnion, which we discussed here, to hold that the type of informational injury alleged-the failure to obtain information that must be publicly disclosed pursuant to a statute-what not sufficiently concrete for article III standing to sue unless the plaintiff had a personal use for the information that was unlawfully withheld.
- The Second Circuit’s interpretation only works if Trans Union overruled Havens and the other two cases. That is a conclusion that doesn’t hold up: 1) Trans Union can be reconciled with the earlier precedents because TransUnion distinguished the informational injuries and those precedents from the purported informational injury before TransUnion, which was the receipt of required information in a different format. Only after distinguishing the earlier precedents did TransUnion discuss the need for downstream consequences and adverse effects.
- Supreme Court decisions remain binding precedent until the Supreme Court sees fit to reconsider them regardless of whether subsequent cases have cast grave doubts about their continuing vitality.
- No statement or even a suggestion exist in TransUnion that the Supreme Court was reconsidering the earlier precedents. Instead, the earlier precedents were distinguished without questioning their validity.
- The Supreme Court has subsequently cited to Havens after TransUnion and described Havens favorably when referencing that Havens held that a tester plaintiff posing as a renter for purposes of housing discrimination litigation suffered an injury under article III.
- The Fifth Circuit did not offer a sound basis for distinguishing Havens. Here, Laufer alleges that the accessibility information missing from the hotel reservation website has relevance to her because the hotel reservation regulation requires providing to her and other individuals with disabilities that information regardless of whether she needed that information for some other purpose.
- The 10th Circuit disregards the plain holding of Havens and its line of decisions. Those precedents reflect that the failure to obtain information may be because of a misrepresentation or because of a wholesale refusal to provide it. Racial or other discriminatory animus was not an element of the statutory violations there and such lack of animus did not deprive the plaintiffs of informational injury per article III.
- The Havens line of cases are clear that a plaintiff need not show a use for the information being sought in order to establish an injury in fact.
- The First Circuit got it right when it said that no other courts holding otherwise have convincingly explained why Havens doesn’t illuminate the path to the decision. Judge Jordan of the 11th Circuit put it that he had yet to see any good answer to the question as to why Havens is different persuasively. Further he said that Havens was still on the books and the 11th Circuit was bound to apply it.
- The credit union line of cases have no applicability here because this is not a situation where membership is restricted to certain people and Laufer falls outside that membership category. The District Court was not free to follow the credit union line of cases when applicable Supreme Court decision by way of the Havens line of cases existed. The Havens line of decisions has direct application and therefore controls the situation.
- This case is undoubtedly headed to the Supreme Court as a Circuit Court split exist even with respect to the same plaintiff.
- The Havens line of cases is based upon specific statutory references in the Fair Housing Act. The hotel reservation regulation is a final regulatory provision and not a statute. That distinction might matter as there are a whole bunch of Justices on the Supreme Court that are not a fan of Chevron deference. One wonders if this might not be a case where the Supreme Court uses it as a vehicle to re-examine Chevron’s validity.
- The Fair Housing Act also contains statutory provisions clearly suggesting emotional injuries are in play but that is not the case with the ADA (see 42 U.S.C. §12101 for example). With respect to title III of the ADA, it only allows for attorney fees and injunctive relief and not for damages of any kind. The Fourth Circuit did not deal with the question of stigmatic injury in its opinion but other courts have dealt with that. Where that question arises, one wonders whether the statutory differences in language with respect to emotional harms between the Fair Housing Act and the ADA might not matter to the Supreme Court. It would seem that when the Supreme Court gets this case or one just like it that it would have to cover both informational injury and stigmatic injury.
- We previously discussed TransUnion here. You can make a strong argument from that case that tester standing for article III purposes is dead. Whether tester standing for article II purposes exist with respect to stigmatic injury depends upon whether emotional distress damages are available under title II of the ADA. You can make the argument that such damages are available under title II because the remedies provisions for title II of the ADA, 42 U.S.C. §12133, refers to 29 U.S.C. §794a in total and not by any specific provision within that statute.
- TransUnion is clear that a statutory right by itself does not confer article III standing.
- In short, the Supreme Court could easily find that tester standing is not a thing under title III of the ADA without overruling Havens.
- The ADA does not have a representation statutory provision similar to the Fair Housing Act.
- As a deaf person who has tried looking at websites in order to see if the hotel has any hearing accessible rooms, I can tell you that such information is often lacking. I can also tell you that often times when a hotel says on the website that a room is hearing accessible, the actual realities on the ground are otherwise.
- It is not a slam dunk at the whether the location of the informational injury is the website of the hotel or the hotel itself. The answer as to the location makes a huge difference in these cases.
- I’m not going to even hazard a guess as to what this Supreme Court will do and how they will do it with respect to whether Laufer or a similar plaintiff has article III standing. I can tell you that courts are pushing back hard against serial plaintiffs in website accessibility litigation, particularly in California. So, one wonders if that is not going to be in the background when the Supreme Court looks at this case.