Before getting started on the blog entry of the week, I wanted to give everyone a heads up as to the blogging schedule for the rest of the calendar year. My daughter comes home for a three week break on December 13, so we have this blog this week. I will also have a blog next week as well. After that, it is a bit of the wildcard as to whether I will have any other blogs up before the end of the calendar year. The blog entries this week are substantive. I need to have one more blog this calendar year discussing the most popular Understanding the ADA blog entries of the year. I may or may not have time for another substantive blog.


Quite literally just before I was ready to put the final touches on a blog entry for the week, which is separately posted, my wife sent me an alert that the Supreme Court, here, unanimously had dismissed the Laufer case as moot. That is absolutely the best outcome persons with disabilities could have wanted. The decision breaks down into three categories: Justice Barrett’s majority opinion mooting the case; Justice Thomas concurring opinion saying that he agrees that the case is moot, but the issue of standing should have been addressed and Laufer has no standing; Justice Jackson’s concurring opinion saying that the Supreme Court should not have been so quick to vacate the First Circuit decision. I also have some thoughts/takeaways.



Justice Barrett’s Majority Opinion


  1. It is absolutely true that the Supreme Court in this kind of situation can decide whether to address mootness or standing or both in a particular case.
  2. The majority was not convinced that Laufer abandoned her case in an effort to evade Supreme Court review. Laufer voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. She also represented to the Supreme Court that she will not file any other ADA lawsuits. Therefore, her case is moot and should be dismissed. However, the Supreme Court reserves the right to exercise their discretion differently in future cases.
  3. Since the case is now moot, the opinion of the First Circuit is vacated as well (basically, that means that the First Circuit opinion no longer exists as a practical matter).



Justice Thomas’s Concurring Opinion


  1. Absolutely agrees that the case is moot. However, the Supreme Court should exercise its jurisdiction to consider the standing question and Laufer has none.
  2. Whether Laufer has standing the day she filed her suit, is logically a first question as to whether her later actions mooted the case.
  3. Whether Laufer has standing to bring her Reservation Rule claim is a recurring question that only the Supreme Court can definitively resolve. Laufer is not the only Reservation Rule tester, and she also has single-handedly generated a Circuit Court split understanding question.
  4. The circumstances of the case strongly suggests strategic behavior on Laufer’s part.
  5. The attorney that was disciplined had nothing to do with the Acheson hotels matter. So, it doesn’t make sense to argue that the Supreme Court should no longer address whether she has standing because an attorney she hired for an entirely different case engaged in misconduct.
  6. The majority has needlessly invited litigants to follow Laufer’s path to manipulate the docket of the Supreme Court in the future.
  7. Vacating the First Circuit opinion is absolutely the right thing to do.
  8. Laufer lacked standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights.
  9. The ADA only prohibits discrimination based upon disability. It does not create a right to information.
  10. Havens Realty does not apply because the Fair Housing Act specifically by statute creates a right for information.
  11. Laufer assert no violation of her own rights with regards to information. She does not even harbor some day intentions of traveling to Maine to visit the particular hotel. Her lack of intent to visit the hotel or even book a hotel room elsewhere in Maine eviscerates any connection to her purported legal interest in the accessibility information required by the Reservation Rule.
  12. The hotel’s failure to provide accessibility information on its website is nothing to Laufer because she disclaimed any intent to visit the hotel.
  13. Laufer sues not to enforce specific legal obligations whose violation works a direct harm on herself, rather she sues to force the hotels to comply with the Reservation Rule. That simply doesn’t work because vindicating the public interest is the function of Congress and the chief executive not individual plaintiffs.
  14. Laufer’s aggressive efforts to personally impose financial penalties for violations of the Reservation Rule go far beyond the role that Congress had in mind for private plaintiffs under the ADA. Without a violation of her own rights, Laufer lacks standing to sue hotels under the ADA.
  15. Insuring and monitoring compliance with the law is a function of government officials and not a private person who does not assert a violation of her own rights.



Justice Jackson’s Concurring Opinion


  1. The case is absolutely moot, but the court should have separately considered whether be First Circuit decision should be vacated. It should not have been an automatic decision.
  2. Mootness and vacating a lower court decision are entirely two different concepts.
  3. Vacating a lower court decision should only happen after very careful consideration.
  4. A party claiming equitable entitlement to vacating a lower court opinion should have to explain what harm-other than having to accept the law as the lower court stated- that flows from the inability to appeal the lower court decision.
  5. Manipulation about the Supreme Court’s jurisdiction could be a relevant factor in considering whether to vacate a lower court decision.
  6. In a typical situation where a lower court decision is vacated, a party never even has the ability to argue before the higher court, which isn’t the case here. After all, the Supreme Court heard oral argument in this case.




Laufer thoughts/takeaways


  1. While the First Circuit opinion is no more, a Circuit Court split still exists.
  2. While Justice Jackson says that vacating a lower court decision should be separately considered after careful analysis and briefing, she seems to imply that the facts of this case might very well justify vacating the First Circuit opinion.
  3. For those appellate lawyers out there, Justice Jackson’s standard as to what has to be shown to get a lower court decision vacated is useful guidance.
  4. I have previously mentioned how Havens Realty can be easily distinguished from a title III matter and Justice Thomas picks up on that.
  5. Every Court of Appeals and every defense attorney dealing with this question that is looking for an argument to deny standing to serial plaintiffs will be able to draw on Justice Thomas’s concurring opinion in this case.
  6. Justice Barrett herself says that it is only a matter of time before the Supreme Court has to deal with this issue directly. So, the reprieve for persons with disabilities may well only be temporary.
  7. I recently saw that the discipline against Laufer’s lawyer had been thrown out.