Today’s blog entry deals with a couple of goings-on at the United States Supreme Court. The first is the Supreme Court decision in Health and Hospital Corporation of Marion County v. Talevski, here. In this case, the Supreme Court, in a 7-2 decision, held that violations of the federal law dealing with nursing home obligations to their residents created not only a private cause of action but one available under §1983. It is a really complicated case to read. Disability rights advocates were very worried about this decision because of an argument made that spending cause legislation, which is by nature a contract, prohibited a private cause of action. The majority was not having any of that argument.
The second development at the Supreme Court is the brief of the petitioner, Acheson Hotels, LLC, filed in the case of Acheson Hotels, LLC v. Laufer. We discussed this particular Laufer case at the Circuit Court level here. We have also discussed other Laufer cases in other Circuits as well in the blog. From my end, it is a bit surprising that Laufer’s attorney was really interested in having the Supreme Court hear this case. The case sets up very nicely for this particular Supreme Court to eliminate ADA tester standing if it so desires. The question before the court in Laufer is whether a tester has standing even where she lacks any intention of visiting that place of public accommodation. The brief lays out all kinds of reasons that the Supreme Court could seize on with respect to limiting ADA standing. As usual, blog entry is divided into categories and they are petitioner’s reasons why Laufer loses and thoughts/takeaways.
Petitioner’s Reasons Why Laufer Loses
- Relying on TransUnion, which we discussed here, an asserted informational injury causing no adverse effects. does not lead to article III standing.
- Laufer does not claim to have been personally denied access to the hotel, rather she claims other travelers are hindered from accessing that hotel. Such a claim does not give rise to article III standing.
- Article III allows for an informational injury to result in standing only if the plaintiff experiences the adverse effects from failing to obtain the information, which is not the case here, as she was not personally harmed.
- TransUnion holds that the invasion of a legal right does not give rise to standing absent a concrete injury.
- Relying on Havens Realty, which we discussed several times before, such as here, does not work for Laufer because in Havens Realty, the Fair Housing Act case allowing tester standing, the plaintiff relied on a federal statute that personally entitled her to information and granted her a private cause of action to vindicate that informational right. The ADA on the other hand is a different kettle of fish. Laufer relies on a federal regulation that does not personally entitle her to information and on a federal statute that does not grant her a private cause of action to vindicate an informational right.
- Relying on Sunshine laws does not work for Laufer either because Laufer: 1) seeks unneeded information from a private business; 2) did not suffer a particularized denial of information; and 3) is not suing under a statute guaranteeing access to the information.
- Laufer’s claim of a future stigmatic injury based upon her intended return to a website that she claims will stigmatize her, is a self-inflicted injury that does not support standing.
- Laufer is not seeking to remedy her own injuries, but rather she is seeking to enforce the law. TransUnion holds that the choice of how to prioritize how aggressively to pursue legal actions against defendants violating the law falls within the discretion of the executive branch and not the purview of private plaintiffs and their attorneys.
- The case is moot because the hotel has updated its website to say that it is not accessible.
- Declaratory judgments must satisfy the same article III case or controversy requirements as other cases.
- Laufer was not injured when she failed to obtain information she did not need.
- Laufer fails to identify any downstream consequences from failing to receive the required information called for in the regulations. Since she is a tester and has no intent to utilize the information called for in the regulations, she has suffered no injury.
- The DOJ Reservation Rule ensures people with disabilities who travel have accurate information about their destinations. However, Laufer is not planning to travel to the hotel. Therefore, allowing her to utilize the Reservation Rule as a means of getting standing, does not further the policy behind the rule.
- Since Laufer does not plan to visit the hotel, she has no need for information about whether any of it is accessible to persons with disabilities.
- For an injury to be particularized, it has to affect the plaintiff in a personal and individual way.
- Merely visiting a website, without more, should not be sufficient to establish a particularized injury. To hold otherwise, would give Laufer the ability to sue thousands of hotels across the United States merely by visiting the websites regardless of how geographically remote particular hotel was. Such a holding would dramatically expand the law of standing.
- The Fair Housing Act is a different kettle of fish than title III of the ADA as the Fair Housing Act, at 42 U.S.C. §3612(a), grants anyone injured the right to a private cause of action. It also makes it illegal for landlord to represent that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact available. 42 U.S.C. §3604(d).
- TransUnion held that just because a statute grants a person a statutory right and purports to authorize the person to sue to vindicate that right, that does not give a person automatic standing.
- TransUnion limits Havens Realty by holding that a plaintiff cannot establish standing merely by showing a statutory right to information has been violated.
- Havens Realty dealt with a statute while this case deals with final implementing regulations. The distinction matters under TransUnion because nothing in the dissenting opinions in TransUnion suggests that the Department of Justice can create injuries at law.
- The Reservation Rule does not purport to create an individual right to accessibility information, unlike the Fair Housing Act. Nothing in the Reservation Rule purports to confer an individual right to accessibility information to someone not needing it.
- Laufer lacks a private cause of action to vindicate her alleged denial of access to information.
- A violation of the Reservation Rule may give rise to a cause of action under the ADA if the person accesses the deficient website in the course of making travel plans. After all, a person has a right to know whether hotel is accessible before they travel. Therefore, if a person has imminent travel plans, tries to make a reservation at a hotel, and cannot obtain accessibility information, she arguably has a cause of action under the ADA because she had been denied the full and equal enjoyment of the hotel.
- While it is true that the DOJ has a final regulation allowing for individual lawsuits, 28 C.F.R. §36.501, a plaintiff must first be subjected to discrimination, assuming the DOJ has the authority to issue such a regulation in the first place.
- The Sunshine law cases are of no help to Laufer because those cases involve lawsuits against the government seeking information where at this case involves a lawsuit against a private business. Further, Laufer runs up against the following problems: 1) she has not suffered a concrete injury because she cannot show why the information is useful to her, other than as the basis for a lawsuit; 2) she has not suffered a particularized injury because she never asked the hotel for accessibility information and was never personally denied it; and 3) no statute confers a personal right to accessibility information.
- The ADA protects an entirely different interest than the Sunshine laws.
- Laufer was not personally subject to any discriminatory treatment as everybody gets treated in the same way by the website.
- The reality is that Laufer did nothing more than search for and find a website lacking information that is useless to her. In fact, Laufer does not claim to have standing to sue over actually finding out that the hotel is inaccessible, which the hotel freely admits on its website.
- Laufer’s goal of protecting third-party from discrimination does not give her standing.
- Havens Realty did not address whether the plaintiff there could have been obtained forward-looking relief, which is the issue here. That is, Laufer has to allege future harm and not just past harm to establish standing. She can’t do that in this case because the hotel admits that it is not accessible.
- Nothing in Havens Realty or any other case suggests that a litigant can establish article III injury by threatening to deliberately inflict stigma on herself.
- The touchstone of standing is a harm with a close relationship to a harm traditionally recognize as providing a basis for a lawsuit in American courts. It is only in unusual circumstances that emotional distress has been held to be a sufficient injury to be legally actionable and those circumstances don’t approach this case in the least. See also this blog entry discussing this kind of argument.
- To the hotel’s knowledge, no court has held that a plaintiff can establish standing by threatening to intentionally inflict emotional harm upon herself.
- A plaintiff’s abstract interest in enforcing the law does not confer standing in for policy reasons it shouldn’t.
- As I have written before, it isn’t even necessary to limit Havens Realty in order to find that in the ADA tester under title III does not have standing. The Fair Housing Act specifically by statute has language in it talking about emotional injury and the right to information. The statutory provisions of title III of the ADA contain no such similar provisions.
- The petitioner lays out dozens of reasons why Laufer loses. Predicting Supreme Court decisions is a fools errand, but it seems extremely likely that at least six justices, if not more, will be receptive to many of the points made by the petitioner in this brief.
- It is unsurprising to see the petitioner rely upon TransUnion because we predicted that approach here.
- An opportunity was missed by the petitioner to explain another reason why Laufer would not have standing. Title III only allows for injunctive relief and attorney fees. It does not allow for damages and certainly does not allow for emotional distress damages. Accordingly, how can stigmatic injury lead to standing under title III when emotional distress is not even something that a person can get when they sue to have their rights vindicated. A person can only get attorney fees and injunctive relief.
- I don’t view the DOJ regulation as creating a separate cause of action. I see the DOJ regulation as just reiterating what the statute allows to happen.
- This Supreme Court is very skeptical about the administrative state. So, the distinction between a statute, which was the case in Havens Realty, and a regulation, which is the case here, may be very important to the Supreme Court.
- Personally, I wonder about how effective the Reservation Rule is across the disability spectrum. It may be very helpful for those who use wheelchairs, for example, but it is certainly less helpful for those in the hearing loss community. I myself have found no correlation between what a website says about hearing accessible rooms and what is actually happening on the ground when I get to the hotel. So, I don’t even bother with websites and call instead. Even then, I find very little correlation between what the reservation people believe is an accessible hotel room v. what happens when I actually get to the room itself.
- There is a whole separate line of jurisprudence talking about when a regulation itself gives rise to a cause of action. It is really complicated but it comes down to whether the regulation is part and parcel of the statute. I am not sure if the Reservation Rule would meet that requirement.
- Assuming a Supreme Court decision comes down against Laufer, which is extraordinarily likely, how will that change the rights of people with disabilities to ensure accessibility? Certainly, it would severely limit testers, such as Laufer and others like her, from pursuing accessibility claims. However, lawyers would likely just find other kinds of plaintiffs to bring the suits. For example, all they would have to do is find a particular plaintiff that could show that they had an intent to actually go to that hotel. Plaintiff side lawyers would have to work harder to find such individuals, but I don’t see why they couldn’t be found. Whether this approach would be financially viable at all is a separate question.
- It will be interesting to see what Laufer’s attorney say in reply to this brief. In particular, I will be looking for how Laufer’s attorneys get around TransUnion and how they argue that Havens Realty applies. As far as how Havens Realty could apply in their favor, see this blog entry.
- It is a very interesting strategy for the hotel to put on its website that it is not accessible. Doing that certainly helps the hotel in this case but on the other hand, it allows anyone local to that hotel a relatively easy way to bring a title III lawsuit without even having to show up at the hotel. Remember, the hotel is still subject to title III independent of the Reservation Rule.
- It is also interesting that the petitioner concedes that an ADA action is viable if it arises while in the course of making travel plans.
- On July 27, 2023, Seyfarth Shaw in their blog, here, reported that Laufer has decided to dismiss her case and all of her other pending ADA title III lawsuits with prejudice. She also filed a brief stating that her case is now moot and should be dismissed. The hotel intends to oppose the requested dismissal. What lies behind the dismissal is pretty wild and can be found by reading the Seyfarth Shaw blog entry above. They report that this case is the first ADA title III case to reach the High Court in 18 years. They also said that normally the case would be dismissed, but because of the Circuit Court split and the facts surrounding this case maybe it wouldn’t be.