qtnurt nf appeals - new york law school · injunctive relief for the removal of barriers at the...
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~etnnil Q!irtuit ------~··+------OWEN HARTY, Individually,
P laintif.f-Appellant,
-v.-
GREENWICH HOSPITALITY GROUP, LLC, dba Hampton Inn & Suites,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT (NEW HAVEN)
BRIEF FOR PLAINTIFF-APPELLANT
JOHN F. WARD, ESQUIRE, PLLC 200 Country Club Road Royersford, Pennsylvania 19468 (610) 952-0219
-and-
THOMAS B. BACON, P.A. 4868 South West 103rd Avenue Cooper City, Florida 33328 (954) 925-6488
Attorneys for Plaintiff-Appellant
i
TABLE OF CONTENTS
Page
I. PRELIMINARY STATEMENT ............................................................. 1
II. JURISDICTIONAL STATEMENT ....................................................... 1
III. STATEMENT OF ISSUES PRESENTED FOR REVIEW ................. 1
IV. STATEMENT OF THE CASE ............................................................ 2
V. STATEMENT OF FACTS .................................................................... 2
VI. SUMMARY OF ARGUMENT ............................................................ 9
VII. ARGUMENT
A. STANDARD OF REVIEW ............................................................... 10
B. DISCUSSION OF THE ISSUES ...................................................... 11
1. Mr. Harty Meets the Criteria for Standing Applied by District Courts In the Second Circuit ....................................................... 11
2. The District Court Applied An Overly Narrow Standard .......... 18
3. The ADA Requires The Broadest Interpretation of Standing .... 29
4. Lyons and Lujan Are Distinguishable ........................................ 36
5. The ADA Expands Actual Injury To Loss Of Equality Of Opportunity ................................................................................. 42
6. Plaintiff Should Not Have to Engage in a Futile Gesture .......... 47
7. Plaintiff Has Standing As A Tester ............................................ 53
VIII. CONCLUSION .................................................................................. 56
ii
TABLE OF AUTHORITIES
Page(s)
Cases:
Access 4 All, Inc. v. Absecon Hospitality Corp., No. 1:04-cv-6060, 2006 WL 3109966 (D.N.J. 2006) ...................................................................... 56
Access 4 All, Inc. v. G & T Consulting Co., LLC, No. 06 Civ. 13736(DF), 2008 WL 851918 (S.D.N.Y. 2008) ............................. 11, 16, 17, 50
Access 4 All, Inc. v. O.M. Management, LLC, No. 06-CV-0374, 2007 WL 1455991, at *8 (S.D. Ohio May 15, 2007) ........................................ 49, 50, 51
Access for America, Inc. v Associated Out-Door Clubs, Inc., Fed. Appx. 818, 818-20 (11th Cir. 2006) .......................................................... 27, 28, 39, 41
Access For The Disabled v. Tr. Herbert Chas Pohlman, 2:06-cv-00178 slip op. at 2 (M.D. Fla. 2007) ................................................................... 53
Alliance For ADA Compliance, Inc. v. Har-Gon Enterprises, Inc., No. 99-11703, slip op. at 3 (11th Cir. 2000) ................................................... 24
Betancourt v. Ingram Park Mall, SA-10-cv-029 (W.D. TX 2010) .............. passim
Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999) .............. 24
Bruni v. Fine Furniture By Gordo’s Inc., 2007 U.S. Dist. Lexis 120 (M.D. Fla. 2007) ....................................................................................... 56
Bruni v. Fine Furniture By Gordon’s Inc., 2007 U.S. Dist. Lexis 120, at *2, (M.D. Fla. 2007) ................................................................................. 53
Bruni v. FMCO, LLC, 2007 U.S. Dist. Lexis 18641 (M.D. Fla. 2007) ....................................................................................... 56
Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142 (1907) ................. 7
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ..................................... passim
Clark v. Burger King, 255 F. Supp. 2d 334 (D.N.J. 2003) .......................... 49, 51
Clark v. McDonald’s Corp., 213 F.R.D. 198, 229 (D.N.J. 2003) ................ 25
iii
Clark v. McDonalds Corp., 213 F.R.D. 198 (D.N.J. 2003) ......................... 48
Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 1001 (1990) ........ 18n.2
Crazier v. Gamma Management Group, Inc., No. 04-6031, 2005 WL 2644996 (E.D. Pa. 2005) .......................................................................... 49, 50
Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) ................. 43
Daniels v. Arcade, L.P., No. 11-1191, 477 Fed. Appx. 125 (4th Cir. 2012) .......................................................................................... 6
Disability Advocates and Counseling Group, Inc., v. 4SK, Inc., 2005 U.S. Dist. Lexis 44389, at *17 (M.D. Fla. 2005) ............................ 53
Disabled Americans for Equal Access, Inc. v. Ferries Del Carribe, 405 F.3d 60 (1st Cir. 2005) ....................................................................... 49-50
D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008) .......................................................................................... 24, 34
Doran v. 7-Eleven Inc., 524 F.3d 1034 (9th Cir. 2008) ............................... 22, 33
Doran v. 7-Eleven Inc., 524 F.3d 1034 (9th Cir. 2008) ............................... 48
Doran v. 7-Eleven, Inc., 506 F.3d 1191 (9th Cir. 2007) .............................. 17, 51
Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir. 2003) ............................................................................... 22, 33n.10, 34 50
ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157 ................................................. 21, 22, 24, 32
ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157 ........................................................................................... 32
Evers v. Dwyer, 358 U.S. 202 (1958) .......................................................... 55
Frame v. City of Arlington, 575 F.3d 432 (5th Cir. 2009) ........................... 22, 33
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979) .................................................................. 20, 21, , 32, 31, 32
iv
Green v. DGG Properties Co., Inc., No. 3:11–CV–01989 (VLB), 2013 WL 395484, at * 11-13, (D. Ct. 2013) ............................................ 15
Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582 (1983) .............. 23, 33
Harty v. Bull’s Head Realty, No. 3:11–CV–01760 (VLB), 2013 WL 1131625 (D. Ct. 2013) ................................................ 13, 14, 15, 16, 17
Harty v. Burlington Coat Factory of Pennsylvania, LLC, No. 2:11-cv-01923-RK, 2011 WL 2415169 (E.D. Pa. 2011) .................. 17
Harty v. Simon Property Group, L.P., No. 11–110–cv, 428 Fed. Appx. 69 (2d Cir. 2011)............... 12, 13, 15, 16, 17, 53
Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) ...................... 20, 31, 54
Hensley v. Eckerhart, 461 U.S. 424, 445(1983) .......................................... 24
INS v. Center for Immigrants' Rights, 502 U.S. 183 (1991) ....................... 18n.2
Jackson v. Birmingham Bd. of Education, 544 U.S. 167 (2005) ................ 10
Johnson v. Gambrinus Company, 116 F.3d 1052 (5th Cir 1997) ................. 40n.6
Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289 (7th Cir. 2000) ...... 55, 56
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................. passim
Mallory v. Harkness, 923 F. Supp 1546, 1551 (S.D. Fla. 1996) ................. 24
Maloney v. City of Marietta, 822 F.2d 1023 (11th Cir. 1987) ..................... 56
Molski v. Army’s Huntington Beach, 359 F. Supp. 2d 938, 947 (C.D. Cal. 2005) ....................................................................................... 49, 51
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007) ........................................................................................... 24, 34
Molski v. Price, 224 F.R.D. 479, 483 (C.D. Cal. 2004) .............................. 53
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) ................. 22, 33, 34
Norkunas v. Seahorse NB, LLC, Case no. 3:09-cv-934, slip op. At 10 (M.D. Fla. June 6, 2010, DE 28) ............................................................ 27, 39, 56
v
Parr v. L & L Drive-Inn Property, 96 F. Supp.2d 1065, 1082 (D. Hawaii 2000) ...................................................................................... 25
Pickern v. Holiday Quality Foods, 293 F.3d 1133 (9th Cir. 2002) ............. 48, 50
Pierson v. Ray, 386 U.S. 547 (1967) ........................................................... 55
Public Citizen, Inc. v. Bomer, 274 F.3d 212, 218 (5th Cir. 2001) .............. 43
Robinson v. American Honda Motor Co., Inc., 551 F.3d 218 (4th Cir. 2009) .......................................................................................... 10
Schatz v. Rosenberg, 943 F.2d 485 (4th Cir.1991)...................................... 10
See Harty v. Simon Property Group, L.P., 2010 WL 5065982 (S.D.N.Y. Dec. 7, 2010) .................................................................. 13, 15, 16, 17
Small v. General Nutrition Cos. 388 F. Supp. 2d 83 (S.D.N.Y. 2005) ....... 50
Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) ............ 55
Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) ............ 55
Smith v. Pacific Properties and Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) 55, 56
Square, LLC, 2007 U.S. Dist. LEXIS 99118 ............................................... 27
Steger v. Franco, 228 F.3d 889 (8th Cir. 2000) ............................................ 49
Stevens v. Premier Cruises, 215 F.3d 1237 (11th Cir. 2000) ...................... 28, 48
Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) ................... 20, 30, 31, 54
Watts v. Boyd Props., Inc., 758 F.2d 1482, 1485 (11th Cir. 1985) ............. 55
Statutes:
Article III of the Constitution ......................................................... 10, 13, 17, 18, 20
42 U.S.C. § 12101(a)(6) ............................................................................... 52
42 U.S.C. § 12101(a)(7) ............................................................................... 51
42 U.S.C. § 12101(b) ................................................................................... 19, 29
vi
42 U.S.C. § 12182(b)(1)(A)(ii) .................................................................... 45
42 U.S.C. § 12188 ........................................................................... 22n.5, 52, 33n.11
42 U.S.C. § 2000 .......................................................................................... 22, 33
42 U.S.C. § 12182(b)(1)(A)(I) ..................................................................... 44, 45, 51
42 U.S.C. §§ 12181 et seq. ........................................................................... passim
42 U.S.C.§ 12101(a) .................................................................................... 19, 30, 51
Fed. R. Civ. P. 12(b)(1) ............................................................................... 4
Local Rule 7 ................................................................................................. 4
Other Authority:
ADA Title III: A Fragile Compromise, 21 BERKELEY J. EMP. & LAB. L.377 (2000) ............................................................................................. 40
H.R. Rep 101-485(II), at 126 (1990) ........................................................... 22n.4, 33
Kelly Johnson, Note, Testers Standing Up For Title III of the ADA, 59 Case W. Res. L. Rev. 683, 710 (2009)
I. PRELIMINARY STATEMENT
This is an appeal from the decision of the United States District Court for the
Southern District of New York, The Honorable Alfred V. Covello presiding, dated
October 31, 2012.
II. JURISDICTIONAL STATEMENT
Pursuant to 28 U.S.C. §1331 and 28 U.S.C. §1343 the district court below
had original jurisdiction to hear this matter as it arose from Appellee's violations
of Title Ill of the Americans with Disabilities Act, 42 U.S.C. §12181 et seq. The
district court entered a final judgment in favor of Appellee on October 31, 2012.
Mr. Harty filed his notice of appeal to the United States Court of Appeals for the
Second Circuit on November 19, 2012. Appellate jurisdiction is authorized by 29
U.S.C.A. §1291.
III. STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Did the district court err in holding that the relief sought by Plaintiff would
not redress any actual injury, ongoing continuous injury, or threatened
future injury?
2. Did the district court err by applying the concrete plan and proximity tests
in ruling that Plaintiff lacked standing?
3. Did the district court err in declining to recognize tester standing?
1
IV. STATEMENT OF THE CASE
Appellant/Plaintiff, Owen Harty ("Harty") filed a Complaint seeking
injunctive relief for the removal of barriers at the Hampton Inn & Suites, located at
26 Mill River Street, Stamford, CT 06902, a place of public accommodation,
which discriminated against him on the basis of his disability. This property is
owned by Appellee/Defendant, Greenwich Hospitality Group, LLC
("Greenwich"). Greenwich moved to dismiss the Complaint on the grounds that
Harty lacked standing. The district court granted Greenwich's Motion to Dismiss.
This appeal followed.
V. STATEMENT OF FACTS
Mr. Harty is paralyzed from the waist down and is bound to ambulate in a
wheelchair. A-7-8 ,-r 1. He qualifies as a disabled person within the meaning of
Title III of the ADA. Id. Mr. Harty is a resident of Broward County Florida. Id.
Mr. Harty is a private investigator and certified firearms instructor and
frequently travels throughout the United States to attend gun shows and for his
business. A-85, 121 ,-r2. While traveling, Mr. Harty visits places of public
accommodation to shop for goods and services. Id. Mr. Harty is also a tester for
purposes of monitoring the level of compliance of hotels and other commercial
establishments with the ADA. Id.
2
For several years, Mr. Harty resided in Nyack, New York with his family.
A-86, 121 ~3. Nyack is only twenty-seven (27) miles from Stamford Connecticut.
https://maps.google.com/ Mr. Harty's family, including his brother and sister, still
lives in the surrounding area. Id. Mr. Harty goes to the Nyack/White
Plains/Stamford area several times each year to visit his family and long-time
friends, go to gun shows and develop his business contacts. Id. His last visit to
the area was late August-September, 2011. This was a trip that Mr. Harty had
planned before this lawsuit was filed, but the impact of the hurricane restricted his
travel in the area severely. I d.
Mr. Harty frequently visits Southwestern Connecticut as part of his travels
to the Nyack/White Plains area. A-86, 121 ~3. Since the late 1980s, he has been in
the Stamford Connecticut area approximately 20 times or more. Id. Mr. Harty
frequently shops and travels in the area. The hotels in the Stamford area are close
enough to his home that they serve as a place for him to stay over when he visits
his family. A-86, 121-122 ~ 3.
Greenwich owns, operates and/or leases a place of public accommodation
known as Hampton Inn & Suites, 26 Mill River Street, Stamford, CT 06902. A-7
~ 2. Mr. Harty stayed at the Hampton Inn on November 19-20, 2010. A-36 ~ 10,
A-86, 122 ~ 4. There, Mr. Harty encountered numerous conditions that
3
discriminated against him on the basis of his disability. A-86, 122 ~ 4, 124-189.
He first checked into one room, but found it to be non-compliant and then moved
into another room. Id. In these rooms, Harty encountered an inaccessible tub,
shower, sinks, furniture blocking doorway access, toilets, and amenities out of
reach. Id. In the commons areas, the registration counter was too high, there were
areas that were inaccessible for wheelchairs, an inaccessible bar and
non-compliant lobby restroom. ld. The designated accessible parking space
lacked a compliant access aisle and was connected to the hotel via a route that had
extremely steep curb cuts. ld. Mr. Harty took photographs of the barriers that he
encountered at the Hampton Inn. A-124-189.
On November 11, 2011, Mr. Harty filed a Complaint seeking injunctive
relief pursuant to Title III of the Americans With Disabilities Act, 42 U.S.C.
Sections 12181, et seq. ("ADA") for the removal of barriers at Greenwich's place
of public accommodation which discriminate against him on the basis of his
disability. A -6-16.
Greenwich then filed a Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and Local Rule 7. A-17-18. Greenwich argued principally that Mr. Harty
lacked standing due to the fact that he is a Florida resident, lives too far from the
Hotel to assert an ADA Title III action and, as a result, "cannot demonstrate that
4
he will return to the area/and/or facility, which is located in Stamford,
Connecticut." ld. Greenwich further argued that Mr. Harty had not visited the
Hotel enough times in the past and lacked sufficient concrete plans to return to the
Hotel in the future. A-20-28. Greenwich argued that Mr. Harty's status as a tester
did not by itself create standing. A-29-30. Finally, Greenwich argued that the
Second Circuit's decision in Harty v. Simon Property Group. L.P. (in which the
panel reversed the trial court and ruled that Mr. Harty did have standing) was
factually distinguishable. A-30-32.
Mr. Harty filed a brief and affidavit in opposition, explaining that he had
lived in the local geographic area for several years and continues to often visit his
family, which continues to reside locally. A-85-189. Mr. Harty further explained
that his next planned trip to the Nyack area was scheduled for June 2012 to visit
family and friends. A-122.
Mr. Harty stated that he would be traveling to Stamford during that trip to
do some shopping. A-122. Mr. Harty explained that he would be needing a
compliant hotel in which to stay overnight, but wanted it to be compliant before he
goes. Id. He realizes that it would be a futile gesture to attempt to stay at the
Hampton Inn in its present condition unless he is willing to suffer discrimination.
5
ld. Mr. Harty stated that he would visit the hotel in June if the discriminatory
conditions are removed. Id.
On April27, 2012, Mr. Harty filed a notice of supplemental authority with
regard to the decision of the United States Court of Appeals for the Fourth Circuit
in Daniels v. Arcade, L.P., No. 11-1191, 477 Fed. Appx. 125 (4th Cir. 2012). In
Daniels, the Fourth Circuit reversed the decision of the district court on the issue
of whether a Title III ADA plaintiff had standing. The Daniels opinion is
significant in that it recognizes a low threshold for an ADA plaintiff to satisfy
standing requirements.
In its standing analysis, the Fourth Circuit panel declined to follow the four
part proximity test applied by the district court, holding that the test "overly and
unnecessarily complicates the issue at hand." ld at 129. Instead, the panel held
that: "we are simply required to determine whether the amended complaint
sufficiently alleges that [plaintiff] suffered an injury that is concrete and
particularized, as well as actual or imminent." ld. The panel held that "[b ]ecause
[plaintiff] visited the Market and encountered these difficulties himself,
[plaintiff's] injury is "actual" and "concrete," rather than theoretical." Id. The
Court ruled additionally that a plaintiff may meet the threshold standing
6
requirement with respect to future injury by pleading that he has a plausible
intention to return to the subject property. Id. at 130.
The Daniels panel also held that an ADA plaintiff's past litigation history
cannot be held against him unless the prior actions were held to have been
frivolous. Id. at 130. The panel stated: "The right to sue and defend in the
courts .. .is one of the highest and most essential privileges of citizenship ... [and] is
granted and protected by the Federal Constitution." I d. (quoting Chambers v.
Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907)).
On October 31, 2012, the United States District Court for the District of
Connecticut issued a Judgment and Ruling Granting Motion to Dismiss in favor of
Greenwich on the issue of Mr. Harty's standing. A-232. The district court held
that Mr. Harty lacked standing to seek relief against the Hampton Inn under the
ADA for several reasons. First, the district court held that Mr. Harty lives in
Florida rather than in close proximity to the Hampton Inn in Stamford.1 A-239.
Second, the district court noted that Mr. Harty had stayed at the Hampton Inn on
only one occasion in the past. Id.
1The criteria applied by courts involving the distance between a plaintiff's residence and the subject property will be referred to as the "Proximity Test".
7
Third, the district court concluded that Mr. Harty's plans to return to the
area were too vague to establish a "concrete plan" because he "does not state a
basis for returning to the precise location of the Hampton Inn in question." A-239.
The district court noted that the shopping mall in the Simon case was located on I-
287 approximately seven (7) miles west of Mr. Harty's former hometown of
Nyack, whereas the hotel in the instant case is also located on I-287 but twenty-six
(26) miles east of Nyack in Connecticut. A-239-240. To the district court, this
was a distinction with a difference. On appeal, Mr. Harty urges the panel to
conclude that the respective locations of the properties in the two cases make no
difference whatsoever because both locations are on the same highway, both are
convenient to Nyack (less than a half hour drive) and that Mr. Harty regularly
visits both the Nyack and Stamford metropolitan areas.
Finally, the district court concluded (remarkably) that Mr. Harty's averment
that he had visited the Stamford, Connecticut area twenty (20) or more times since
the late 1980's did "not establish that he visits the immediate vacinity [sic] of the
defendant's inn with sufficient regularity or frequency to warrant his standing in
this case." A-240. It should be noted, however, that the district court based its
finding at least in part on an erroneous observation that Mr. Harty "does not
specify the number of times he visited Stamford, Connecticut, in particular, during
8
those former trips." A-240. However, in his affidavit, Mr. Harty specifically
states, "Since the late 1980's, I have been in the Stamford Connecticut area
approximately 20 times or more." A-121. Neither Mr. Harty nor his attorneys are
aware of even a single ADA Title III case in which a disabled plaintiff visited an
area twenty or more times and was found not to have standing. Mr. Harty
respectfully suggests that this is because no such case exists.
VI. SUMMARY OF ARGUMENT
The district court erred in asserting that the relief sought would not redress
any actual injury, ongoing continuous injury, or threatened future injury. The
district court, in finding a lack of standing in that Harty could not prove a concrete
plan to return to the subject property, looked solely to Harty's actual interactions
with the discriminatory barriers at the establishment. This is but one type of injury
contemplated by the ADA. The ADA also expressly contemplates a loss of
opportunity as an actionable injury and the futile gesture of attempting to return to
a non-compliant property. As such, so long as the discriminatory barriers remain
in place, the disabled Harty suffers an ongoing injury as he is denied the
opportunity to participate in and/or benefit from the goods and services offered at
the subject property.
9
Additionally, the district court erred in applying the concrete plans and
proximity tests in ruling that Harty lacked standing. The application of the
concrete plans and proximity tests represent the most narrow interpretation of
standing under the ADA. By contrast, Congress intended to confer standing to the
fullest limits of Article III of the Constitution.
Finally, the district court erred in disregarding tester standing. Civil rights
law depends heavily on private enforcement. For the ADA to be able to yield its
promise of equal access to the disabled, committed individuals must bring
litigation in order to advance a time when all public accommodations will be
compliant.
VII. ARGUMENT
A. STANDARD OF REVIEW
The standard of review for dismissal pursuant to Rule 12(b )(6) is de novo.
Robinson v. American Honda Motor Co .. Inc., 551 F.3d 218, 222 (4th Cir. 2009)
citing Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991). The Court must
assume the truth of the material facts as alleged in the complaint. Jackson v.
Birmingham Bd. of Education. 544 U.S. 167 (2005).
10
B. DISCUSSION OF THE ISSUES
1. Mr. Harty Meets the Criteria for Standing Applied by District Courts In the Second Circuit.
In determining that Harty lacked standing, the district court analyzed
whether Mr. Harty had shown a "plausible" intent to return to the site of the
violations. A-236. The district court noted that, "[i]n order to be 'plausible,' a
plaintiff's intent to return to the to the place of the purported violation must also
be demonstrated with reasonable specificity; 'speculative' 'some day' intentions to
return are insufficient." A-237 (citations omitted). In order to determine
plausibility, district courts have considered the following four factors: (1) the
proximity of Mr. Harty's residence to Greenwich's place of public
accommodation; (2) Mr. Harty's past patronage of Greenwich's place of public
accommodation; (3) the definitiveness of Mr. Harty's plan to return; and (4) Mr.
Harty's frequency of travel near Greenwich.
As the lower court correctly observed, in Access 4 All, Inc. v. G & T
Consulting Co., LLC, No. 06 Civ. 13736(DF), 2008 WL 851918 (S.D.N.Y. 2008),
the district court found that the plaintiff did have standing to file an ADA Title III
action against a shopping mall based on his averments that he had been to the
subject property in the past and had "definite plans to return." A-237. "Although
the plaintiff in that case did not live near the mall in question, in his affidavit, he
11
stated that he 'frequently' traveled on the road that passed in front of the mall and
used several stores in the vicinity. He stated that he intended to visit the mall
again and patronize its stores." A-238.
In Harty v. Simon Property Group, L.P., No. 11-11CH;v, 428 Fed. Appx. 69
(2d Cir. 2011), a case involving architectural barriers encountered by Mr. Harty at
the Nanuet Mall in Nanuet, New York, the Second Circuit held that the complaint
sufficiently pled standing based upon a plausible intent to return to the premises.
Id. at 72. In Simon, Mr. Harty alleged that he desired to return to the Nanuet Mall
"'to avail himself of the goods and services offered to the public at the property'
and as a tester 'to determine whether the property has been made ADA
compliant."' Id. at 71. The Second Circuit also noted that Mr. Harty submitted an
affidavit in opposition to the defendant's motion to dismiss averring (1) that he
taught courses in weapons handling and safety for which he traveled nationwide
and visited gun shows, (2) that, as a former resident of New York, he returned "to
the area quite often to visit family who still reside there" and (3) that he would be
attending a series of upcoming gun shows in New York and [would] be traveling
through, and shopping at, various shopping centers" as well as visiting friends and
family in New York. Id. The Second Circuit ruled that these allegations and
12
sworn statements were "sufficient to support a plausible inference at the pleading
stage that Harty [would] likely return to the Nanuet Mall." Id. at 71-72.
The Second Circuit's decision in Simon is especially significant here
because it distinguished Mr. Harty's case from cases in which the likelihood of a
Title III plaintiff returning to the site of the alleged discrimination was dependent
upon events whose occurrence was speculative and beyond the plaintiffs control,
noting that "[b ]y contrast, Harty avows a present intention to return to the Nanuet
Mall, an act that depends only upon his own volition, and the likelihood of which
finds some support in professional and family reasons." Id. at 72. The Second
Circuit's decision specifically overturned the district court's holding that Harty had
merely posited "a vague and unsupported general intent or desire to visit" the
property again and had failed to allege concrete reasons for a return to the specific
shopping area at issue. See Harty v. Simon Property Group. L.P., 2010 WL
5065982, at *2 (S.D.N.Y. Dec. 7, 2010)).
In Harty v. Bull's Head Realty, No. 3:11-CV-01760 (VLB), 2013 WL
1131625 (D. Ct. 2013), the district court likewise found, based on the Second
Circuit's precedent in Simon, that Mr. Harty had established a plausible intent to
return to the subject property. Characterizing the facts in Simon and Bull's Head
Realty as "remarkably similar," the district court correctly held that Mr. Harty had
13
again established standing by avowing "a present intent to return to the Shopping
Center, dependent ultimately and only upon his own volition." Bull's Head Realty,
2013 WL 1131625, at *4. The district court noted that "Mr. Harty, as he did in his
prior case before the Second Circuit, has affirmed that he teaches courses in
weapons handling and safety, travels nationwide to attend gun shows and to visit
business contacts, and often visits the Nyack, New York area to visit friends and
family (in addition to meeting with business contacts and attending gun shows).
He has also averred an intent to return to the Stamford, Connecticut area in order
to shop at the Center and also as an ADA tester to determine the Center's
compliance with the ADA." Id. The district court also noted that, while Mr. Harty
had not attached a list of upcoming gun shows to his affidavit has he had in the
Simon case, he had "sworn that he intends to visit the Stamford, CT area to attend
a gun show no later than October or November, 2013, and that but for the
Shopping Center's noncompliance with the ADA and the impossibility of
traversing the property, Harty would return to the Center to shop. He also has
sworn that he intended to visit the Stamford, Connecticut area on several different
occasions in the recent past but was thwarted by personal illness and a natural
disaster." ld.
14
The district court correctly ruled the 1,200 mile distance between Mr.
Harty's residence in Florida and the subject property in the case was "not
dispositive of standing." Bull's Head Realty, 2013 WL 1131625, at *4. The
district court noted that the distance between Mr. Harty's residence and subject
property was the same as in the Simon case and that the Second Circuit had
disposed of this issue by crediting Harty's intention to return to the area for
business and personal reasons. Id. The district court also noted that the distance
between Nyack, where Mr. Harty previously lived, and Stamford, Connecticut "is
a mere twenty-eight miles from Nyack, New York, hardly the formidable distance
that Defendants contend." I d. The district court held that "[ a]t the pleading stage,
these allegations and affirmations render Harty's intention to return to the Bull's
Head Shopping Center in the future to be plausibly alleged based on Harty's
professed business and professional ties to the Stamford, Connecticut area and the
Second Circuit's precedent in Harty v. Simon Property Group." Bull's Head
Realty, 2013 WL 1131625, at *4. But cf. Green v. DGG Properties Co., Inc., No.
3:11-CV-01989 (VLB), 2013 WL 395484, at* 11-13, (D. Ct. 2013) (holding that
plaintiff with temporary ambulatory impairment failed to meet his burden of
establishing standing because he could not demonstrate a likelihood that the
discriminatory conduct would continue against him in the future).
15
Here, as in Simon and Bull's Head Realty, Mr. Harty has sufficiently
alleged an intent to return to the subject property based on controlling Second
Circuit precedent. He has made factual averments almost identical to those in the
earlier two cases and the subject property in this case is also located in Stamford,
Connecticut, the same town as the subject property in Bull's Head Realty. Further,
the fact that the property is a hotel further compels a finding that Mr. Harty has
standing to bring his claims. In Access 4 All, Inc. v. 539 Absecon Blvd., No.
05-5624(FLW), 2006 WL 1804578 (D.N.J. 2006), the district court observed:
[T]he first factor, plaintiff's proximity to defendant's place of public accommodation, is less determinative in the context of hotels than in restaurants and other retail establishments. See Wintergreen, 2005 WL 298307 at *3. In Disabled in Action of Metro N.Y. v. Trump Int'l Hotel & Tower, the court held that plaintiffs who lived in New York and had visited defendant's New York restaurant had a definitive intent to return but for defendant's noncompliance with the ADA. 2003 WL 1751785 at *8-9 (S.D.N.Y. 2003). Similarly, in Hubbard v. Rite Aid Corp., the court determined that a plaintiff who lived 20 miles away from the defendant's shopping center and shopped there on previous occasions had standing to pursue an ADA claim. 2006 WL 1359630 at*9 (S.D. Cal. 2006). However, when applying these factors to an ADA claim arising out of a hotel's alleged non-compliance, in Wintergreen, for example, the court found that plaintiff's proximity to defendant's hotel neither injured nor advanced his claim and, this part of the analysis was inapplicable. See 2005 WL 2989307 at *3. In the instant matter, Plaintiff's claim arises out of barriers he encountered at Defendant's hotel; thus, although Plaintiff resides in Florida, the Court finds that his considerable distance from the hotel does not foreclose his claim for lack of standing.
Access 4 All, Inc., 2006 WL 1804578, at *3.
16
In sum, Mr. Harty has met the criteria for standing applied by district courts
in the Second Circuit and the district court's decision to the contrary was in error.
First, as in Access 4 All. Inc. and the cases cited therein, the distance between Mr.
Harty's home in Florida and the Hampton Inn does not foreclose his claim for lack
of standing. See also Doran v. 7-Eleven, Inc., 506 F.3d 1191 (9th Cir. 2007)
(holding that wheelchair-bound plaintiff had standing to challenge barriers at 7-
Eleven store located 550 miles from his residence). Second, the fact that Mr.
Harty only visited the Hampton Inn once in the past likewise does not foreclose
his claim. In Simon, Bull's Head Realty and Access 4 All. Inc., the plaintiff had
only visited the subject property once, but the reviewing courts credited the
plaintiff's averments that he had concrete plans to return to the subject property
based on his personal and professional interests, and ruled that the plaintiff had
standing. See also Harty v. Harty v. Burlington Coat Factory of Pennsylvania,
LLC, No. 2:11-cv-01923-RK, 2011 WL 2415169 (E.D. Pa. 2011) (holding that
Mr. Harty had standing to bring ADA Title III action against retail clothing store
in which he had shopped on one occasion).
Third, the district court's attempt to draw a distinction between the location
of the subject property in Simon and the subject property in the instant case is an
tortured exercise in hair-splitting that, if upheld, will severely complicate the
17
analysis of any ADA Title III access case and lead to incongruous decisions. Mter
all, the two subject properties in those cases are located on the same highway (I-
287), are both convenient to Mr. Harty's former residence in Nyack and the two
properties are separated only by a driving distance of a little more than a half-hour
and a state line. To hold that Mr. Harty has the right to shop at a nearby mall in
New York, but not to stay at a hotel in a nearby town in Connecticut is both
nonsensical and contrary to Congress' intent in enacting the ADA.
Accordingly, the district court's holding that Mr. Harty does not have
standing to bring his claims was in error and should be overruled.
2. The District Court Applied An Overly Narrow Standard.
The Concrete Plans Test and Proximity Test represent the narrowest
interpretation of standing under the ADA. As such, they are entirely inconsistent
with Congressional intent. In 1990, Congress passed the ADA with the declared
purposes2 of providing "a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities" and providing
2See Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001 (1990) (Where there is ambiguity "[i]n determining the meaning of [a] statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy."); see also INS v. Center for Immigrants' Rights, 502 U.S. 183, 189-91 (1991) (the title of a regulation or section is relevant to its interpretation).
18
"clear, strong, consistent, enforceable standards addressing discrimination against
individuals with disabilities." 42 U.S.C. § 12101(b ). Congress recognized the
long history of discrimination against people with disabilities. In this regard,
Congress stated the following: (1) "many people with physical or mental
disabilities have been precluded [from fully participating in society] because of
discrimination,"(2) "historically, society has tended to isolate and segregate
individuals with disabilities," and (3) "discrimination against individuals with
disabilities persists in such critical areas as employment, housing, public
accommodations, education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public services." 42
U.S.C. § 12101(a). Congress found that "individuals with disabilities continually
encounter various forms of discrimination, including ... the discriminatory effects
of architectural, transportation, and communication barriers ... and relegation to
lesser services, programs, activities, benefits, jobs, or other opportunities," and
asserted that "the Nation's proper goals regarding individuals with disabilities are
to assure the equality of opportunity, full participation, independent living, and
economic self-suffic~ency for such individuals." 42 U.S.C.§ 12101(a)(emphasis
added). The Tenth Circuit referenced the above cited Congressional Purpose as
supporting the conclusion that the Congress intended to confer standing to the
19
fullest limits of Article III of the Constitution. Tandy v. City of Wichita, 380 F.3d
1277 (lOth Cir. 2004)3•
In statutes where Congress confers full Article III standing, "prudential
considerations" cannot be considered to deprive plaintiffs of standing. See
Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982); City of Wichita, 380
F.3d at 1287, n. 14. The Supreme Court has ruled that, where Congress so intends
that plaintiff's be afforded the full measure of Article III standing, that prudential
limitations are inapplicable. Gladstone Realtors v. Village of Bellwood, 441 U.S.
91 (1979)(plaintiffs sought injunctive relief and monetary damages). In such
cases, a plaintiff must prove that he suffered injury. 441 U.S. at 103 n. 9.
Likewise in Havens Realty, 455 U.S. at 372, the Supreme Court held that in such
cases the plaintiff must merely prove that he suffered "distinct and palpable
injury".
The Department of Justice reiterates this position and applies it to Title III
of the ADA:
Although a party must generally satisfy prudential standing limitations in addition to the Article III limitations, prudential limitations do not apply when Congress has expanded standing to the full extent permitted by Article III. Warth, 422 U.S. at 501 ("Congress may grant an express
3 Although Tandy involved a Title II ADA case, the language referenced in this context is applicable to both Title II and Title III.
20
right of action to persons who otherwise would be barred by prudential standing rules."); Gladstone, Realtors, 441 U.S. at 100 ("Congress may, by legislation, expand standing to the full extent permitted by Art. Ill, thus permitting litigation by one who otherwise would be barred by prudential standing rules."); Motor Coach Ind., Inc. v. Dole, 725 F.2d 958, 963 (4th Cir. 1984) (citing Gladstone, Realtors, 441 U.S. at 100).
Here, Congress did not explicitly exempt title III claims from prudential limitations but, as this Court has discussed, "Congress intended that, under title III, persons with disabilities have remedies and procedures parallel to those available under comparable civil rights laws," such as being free of prudential limitations. See AvalonBay, 2009 WL 1153397, at *7 (internal quotation marks omitted). Because Congress was not explicit when it drafted title III, application of prudential standing limits to such claims has persisted. Recognizing that "several Courts of Appeals have found that prudential standing limitations do not apply to claims under Titles I and II of the ADA," this Court held that claims under title III should also be free of prudential standing limitations in order to effect the broad purpose of the ADA. I d. at *7. For these reasons, prudential standing limitations should not be applied to any title III claimant and ERC need not satisfy them in this matter.
ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157, Statement of
Interest of the United States of America, at 15-16.
Another reason cited by various courts for according the broadest possible
interpretation of standing is the notion that such civil rights plaintiffs seek relief
for other persons similarly situated. See Gladstone Realtors v. Village of
Bellwood, 441 U.S. 91 (1979)(plaintiffs sought injunctive relief and monetary
damages). In such cases, a plaintiff must prove that he suffered injury. In
Gladstone, the Supreme Court held that "as long as the plaintiff suffers actual
21
injury as a result of the defendant's conduct, he is permitted to prove that the rights
of another were infringed." 441 U.S. at 103 n. 9.
In Ingram Park Mall, the Court noted that a significant reason for according
the broadest possible interpretation of standing to Title III ADA litigants is that
they do so as "private attorneys general". Slip op. At 9-11. See also Doran v. 7-
Eleven Inc., 524 F.3d 1034, 1041 (9th Cir. 2008)(holding that because private
enforcement suits are the primary method of obtaining ADA compliance, the
broad view of constitutional standing is warranted). The remedies under Title III
of the ADA are the same as those under Title II of the Civil ~ights Act of 1964, 42
U.S.C. Section 2000, for which there is only injunctive relief.4 Ingram Park Mall,
slip op. at 9-10; Frame v. City of Arlington, 575 F.3d 432, 438 n.5 (5th Cir. 2009).5
In the latter context, the Supreme Court has held that lawsuits by private litigants
4ln enacting the latter statute, Congress evinced its understanding "that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,401 (1968). In Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003), the First Circuit reasoned: "It is fair to assume that Congress had the same understanding when it enacted Title III of the ADA." See generally H.R. Rep 101-485(II), at 126 (1990), reprinted in 1990 U.S.C.C.A.N. 303,409 (noting Congress's explicit intention "to make [section 12188(a)(1)] consistent with title II of the Civil Rights Act of 1964").
5"The remedies and procedures set forth in section 2000a-3(a) of [Title 42 U.S.C.] are the remedies and procedures [Title III] provides to any person who is being subjected to discrimination .... " 42 U.S.C. § 12188.
22
are "private in form only". Guardians Ass'n v. Civil Service Comm'n, 463 U.S.
582 (1983). "When a plaintiff brings an action under that Title, he cannot recover
damages. 6 If he obtains an injunction, he does so not for himself alone but also as
a 'private attorney general', vindicating a policy that Congress considered of the
highest priority." Id., citing Newman v. Piggie Park Enterprises, 390 U.S. 400,
401-02 (1968). It is fair to assume that Congress had the same understanding
when it enacted Title III of the ADA. Ingram Park Mall, slip op at 10, quoting
Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003).
Although the ADA authorizes enforcement by the Attorney General, the
latter has limited resources, and thus "private suits by necessity represent the main
tool for ensuring compliance with Congress' intent in passing the ADA. Ingram
Park Mall, slip op. at 10-11, quoting Kelly Johnson, Note, Testers Standing Up
For Title III of the ADA, 59 Case W. Res. L. Rev. 683, 710 (2009)(emphasis
added). Thus, "most ADA suits are brought by a small number of private
plaintiffs who view themselves as champions of the disabled." Ingram Park Mall,
6The Ingram Park Mall Court noted, at p. 12, the availability of other relief, namely damages, as one reason for the Supreme Court's restriction of a plaintiff's entitlement for injunctive relief in City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Later in the same opinion, at p. 25, the court noted that injunctive relief is the only remedy available under Title III of the ADA. In instances where such relief is denied, the statute is stripped of its deterrent effect. Slip op. at 25 n. 7.
23
slip op at 11, quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062
(9th Cir. 2007)(emphasis added);; D'Lil v. Best Western Encina Lodge & Suites,
538 F.3d 1031, 1040 (9th Cir. 2008)(same). The Department of Justice supports
this position. Because the Department "cannot investigate every place of public
accommodation" for ADA compliance, "[p ]rivate plaintiffs play an important role
in enforcing the ADA ... " ERC v. Abercrombie & Fitch Co, D. Md. Case No.
1:09-cv-03157, Statement of Interest of the United States of America, at 1. See
also Hensley v. Eckerhart, 461 U.S. 424, 445(1983) ("All of these civil rights laws
depend heavily upon private enforcement, and fee awards have proved an essential
remedy if private citizens are to have a meaningful opportunity to vindicate the
important Congressional policies which these laws contain."); Alliance For ADA
Compliance, Inc. v. Har-Gon Enterprises, Inc., No. 99-11703, slip op. at 3 (11th
Cir. 2000) ("The enforcement of civil rights statutes by plaintiffs as private
attorneys general is an important part of the underlying policy behind the
[ADA]"); Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999);
Mallory v. Harkness, 923 F. Supp 1546, 1551 (S.D. Fla. 1996) ("Congress
intended Section 1988 to prompt plaintiffs to act as citizen enforcers or private
attorneys general advancing our nation civil rights objectives and vindicating the
liberty of all citizens."). "Civil rights law depends heavily on private
24
enforcement." Parr v. L & L Drive-Inn Property, 96 F. Supp.2d 1065, 1082 (D.
Hawaii 2000).
In dismissing the matter for a lack of standing, the district court relied upon
two Supreme Court cases: City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)
and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). However, reliance on
Lujan and Lyons is misplaced. Clark v. McDonald's Corp., 213 F.R.D. 198, 229
(D.N.J. 2003). In fact, the US District Court for the Western District of Texas
recently addressed this exact issue and declined to follow the aforementioned
cases, finding them distinguishable and inapposite for several reasons. See
Betancourt v. Ingram Park Mall, SA-10-cv-029 (W.D. TX 2010). First, the Lyons
case involved a plaintiff who had been stopped for a traffic violation and was
placed in a choke hold by the police without provocation or resistance on his part.
The Ingram Park Mall court reasoned that the Lyons decision "rested on specific
conclusions". Important language noted by the Texas court from the Lyons
decision is the fact that the past civil rights violation in Lyons was "unaccompanied
by any continuing, present adverse effects[.]" Ingram Park Mall, p. 12, quoting
Lyons, 461 U.S. at 102. The Plaintiff in Lyons had done nothing to establish a real
and imminent threat that he would again be stopped for a traffic violation, then be
illegally choked into unconsciousness without provocation or resistance on his
25
part. The Supreme Court had also indicated the need to strike a balance between
state and federal authority and exercise restraint in enjoining a state's
administration of its own criminallaws.7 Lastly, the Texas Court noted that the
"withholding of injunctive relief did not mean that the federal law would exercise
no deterrent effect in the circumstances because Lyons had a damages remedy for
his injury." Ingram Park Mall, at 12.
The Ingram Park Mall district court further ruled that the Lujan decision was
also distinguishable and inapplicable. In Lujan, which involved the government
regulation, or lack thereof, of an entity other than the plaintiff, the Court had ruled
that the plaintiff could not show that one of its members would be directly affected
by the environmental impact of a government regulation involving an endangered
species in a foreign country. Ingram Park Mall, at 12-13.8
7Likewise, the Texas Court noted the Supreme Court's emphasis that "it is clear that in suits against the Government, at least, the concrete injury requirement must remain." Ingram Park Mall, slip op at 24 n.7, quoting Lujan, 504 U.S. at 578.
8The Supreme Court found it was "beyond the limit" and "into pure speculation" reach a finding of "actual or imminent" injury where "anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection."
26
In applying Lujan and Lyons, some district courts, and the district court
below, have held that a Title III ADA plaintiff must show a "concrete" plan to
return to the subject property (the Concrete Plans Test). As a subset of this Test
such courts, including the district court, sometimes apply the four factor Proximity
Test.
The "concrete plan" test has been widely criticized by both courts and
commentators. As one court recently stated: "not all activities are amendable9 to
such a concrete step, and standing should not be denied to a plaintiff seeking relief
under the ADA merely because he cannot produce evidence of a specific date and
time to return." Norkunas v. Seahorse NB, LLC, Case no. 3:09-cv-934, slip op. At
10 (M.D. Fla. June 6, 2010, DE 28); Square, LLC, 2007 U.S. Dist. LEXIS 99118
("It is not necessary that [the plaintiff] have concrete and specific plans to return in
order to establish a threat of future injury so long as [the plaintiff] has a
nonspeculative intent to do so."); see also Access for America, Inc. v Associated
Out-Door Clubs, Inc., Fed. Appx. 818, 818-20 (11th Cir. 2006) (Barkett, J .,
9The potential list of activities for which it is impossible to credibly possess concrete/set date plans to return is inexhaustive. No one can credibly state that they will visit a movie theater ten months in advance, as they would be unable to predict the movies showing. Nor can anyone accurately predict the next time they will visit a funeral home, fast food restaurant, convenience store, or clothing store.
27
dissenting) ("Especially in the disability context, a "specific-date/set-plans"
standard would produce patently absurd results ... [T]he disabled need not plan
their lives in such minute detail and with such vast forethought in order to invoke
the ADA's protection."). In Ingram Park Mall, at pp. 14-15, the Texas Court
surveyed the criticisms of the Concrete Plans Test in reaching the conclusion that
these tests are too narrow and therefore inapplicable.
As one judge has written: "Especially in the disability context, a "specific
date/set-plans" standard would produce patently absurd results, and would almost
certainly place plaintiffs in a Catch-22 so far as their credibility is concerned. To
have standing under the ADA, is a wheelchair-bound individual who consistently
but unpredictably frequents a particular Burger King required to predict the very
day on which he will next crave a Whopper?" Access v. America v. Associated
Out-Door, 188 Fed. Appx. 818 at *2 (11th Cir. 2006) (Barkett, J., dissenting). See
also Ingram Park Mall, slip op at 16, (citing references with approval). Judge
Barkett also noted that the Eleventh Circuit had previously held that an allegation
that the plaintiff would return to the public accommodation "soon" was sufficient.
See Stevens v. Premier Cruises, 215 F.3d 1237 (11th Cir. 2000).
Requiring a civil rights plaintiff to plan a specific date of return pursuant to
the Concrete Plans test essentially requires him to play a game of "chicken" with
28
conduct violating his civil rights. He must prove a particular date, to the court's
satisfaction, when he plans to revisit his former discrimination, race toward that
date without hesitation, and hope justice is served to completion before that date
arrives. As a practical matter, architectural remedial measures often require
permits and construction. Such projects reasonably take six months to a year.
Defendants routinely ask for more time. Picking such a specific date when Harty
thinks he will be safe to revisit a property is nearly impossible, particularly where,
as here, Greenwich is expending considerable resources to vigorously litigate its
right to remain non-compliant.
3. The ADA Requires The Broadest Interpretation of Standing.
The Concrete Plan Test and Proximity Test represent the narrowest
interpretation of standing under the ADA. As such, they are entirely inconsistent
with Congressional intent. In 1990, Congress passed the ADA with the declared
purposes of providing "a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities" and providing
"clear, strong, consistent, enforceable standards addressing discrimination against
individuals with disabilities." 42 U.S.C. § 12101(b). Congress recognized the long
history of discrimination against people with disabilities. In this regard, Congress
29
stated the following: (1) "many people with physical or mental disabilities have
been precluded [from fully participating in society] because of discrimination,"(2)
"historically, society has tended to isolate and segregate individuals with
disabilities," and (3) "discrimination against individuals with disabilities persists in
such critical areas as employment, housing, public accommodations, education,
transportation, communication, recreation, institutionalization, health services,
voting, and access to public services." 42 U.S.C. § 12101(a) (emphasis added).
"Congress found that 'individuals with disabilities continually encounter various
forms of discrimination, including ... the discriminatory effects of architectural,
transportation, and communication barriers ... and relegation to lesser services,
programs, activities, benefits, jobs, or other opportunities,' and asserted that 'the
Nation's proper goals regarding individuals with disabilities are to assure the
equality of opportunity, full participation, independent living, and economic self
sufficiency for such individuals."' Ingram Park Mall, 735 F. Supp 2d at 594
(quoting 42 U.S.C. § 12101(a)) (emphasis added). The Tenth Circuit referenced
the above-cited congressional purpose as supporting the conclusion that the
Congress intended to confer standing to the fullest limits of Article III of the
Constitution. Tandy v. City of Wichita, 380 F.3d 1277, 1286-87 (lOth Cir. 2004).
30
In statutes where Congress confers full Article III standing, "prudential
considerations" cannot be considered to deprive plaintiffs of standing. See Havens
Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982); City of Wichita, 380 F.3d at
1287 n.14. The Supreme Court has ruled that, where Congress so intends that
plaintiffs be afforded the full measure of Article III standing, that prudential
limitations are inapplicable. Gladstone Realtors v. Village of Bellwood, 441 U.S.
91 (1979) (plaintiffs sought injunctive relief and monetary damages). In such
cases, a plaintiff must prove that he suffered injury. 441 U.S. at 103 n.9. Likewise
in Havens Realty, 455 U.S. at 372, the Supreme Court held that in such cases the
plaintiff must merely prove that he suffered "distinct and palpable injury". The
Department of Justice reiterates this position and applies it to Title III of the ADA:
Although a party must generally satisfy prudential standing limitations in addition to the Article III limitations, prudential limitations do not apply when Congress has expanded standing to the full extent permitted by Article III. Warth, 422 U.S. at 501 ("Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules."); Gladstone, Realtors, 441 U.S. at 100 ("Congress may, by legislation, expand standing to the full extent permitted by Art. III, thus permitting litigation by one who otherwise would be barred by prudential standing rules."); Motor Coach Ind., Inc. v. Dole, 725 F.2d 958, 963 (4th Cir. 1984) (citing Gladstone, Realtors, 441 U.S. at 100). Here, Congress did not explicitly exempt title III claims from prudential limitations but, as this Court has discussed, "Congress intended that, under title III, persons with disabilities have remedies and procedures parallel to those available under comparable civil rights laws," such as being free of prudential limitations. See AvalonBay, 2009 WL 1153397,
31
at *7 (internal quotation marks omitted). Because Congress was not explicit when it drafted title III, application of prudential standing limits to such claims has persisted. Recognizing that "several Courts of Appeals have found that prudential standing limitations do not apply to claims under Titles I and II of the ADA," this Court held that claims under title III should also be free of prudential standing limitations in order to effect the broad purpose of the ADA. I d. at *7. For these reasons, prudential standing limitations should not be applied to any title III claimant and ERC need not satisfy them in this matter.
ERC v. Abercrombie & Fitch Co, D. Md. Case No. 1:09-cv-03157, Statement of
Interest of the United States of America, at 15-16.
Another reason cited by various courts for according the broadest possible
interpretation of standing is the notion that such civil rights plaintiffs seek relief for
other persons similarly situated. See Gladstone Realtors v. Village of Bellwood,
441 U.S. 91 (1979) (plaintiffs sought injunctive relief and monetary damages). In
such cases, a plaintiff must prove that he suffered injury. In Gladstone, the
Supreme Court held that "as long as the plaintiff suffers actual injury as a result of
the defendant's conduct, he is permitted to prove that the rights of another were
infringed." 441 U.S. at 103 n.9.
In Ingram Park Mall, the district court noted that a significant reason for
according the broadest possible interpretation of standing to Title III ADA litigants
is that they do so as "private attorneys general." 735 F. Supp 2d at 595-96. See
also Doran v. 7-Eleven Inc., 524 F.3d 1034, 1041 (9th Cir. 2008) (holding that
32
because private enforcement suits are the primary method of obtaining ADA
compliance, the broad view of constitutional standing is warranted). The remedies
under Title III of the ADA are the same as those under Title II of the Civil Rights
Act of 1964, 42 U.S.C. § 2000, for which there is only injunctive relief.10 Ingram
Park Mall, 735 F. Supp 2d at 595-96; Frame v. City of Arlington, 575 F.3d 432,
438 n.5 (5th Cir. 2009).11 In the latter context, the Supreme Court has held that
lawsuits by private litigants are "private in form only". Guardians Ass'n v. Civil
Service Comm'n, 463 U.S. 582 (1983). "When a plaintiff brings an action under
that Title, he cannot recover damages.12 If he obtains an injunction, he does so not
10In enacting the latter statute, Congress evinced its understanding "that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401 (1968). In Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003), the First Circuit reasoned: "It is fair to assume that Congress had the same understanding when it enacted Title III of the ADA." See generally H.R. Rep 101-485(II), at 126 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 409 (noting Congress's explicit intention "to make [§ 12188(a)(1)] consistent with title II of the Civil Rights Act of 1964").
11"The remedies and procedures set forth in§ 2000a-3(a) of [Title 42 U.S.C.] are the remedies and procedures [Title III] provides to any person who is being subjected to discrimination .... " 42 U .S.C. § 12188.
12The Ingram Park Mall district court noted the availability of other relief, namely damages, as one reason for the Supreme Court's restriction of a plaintiff's entitlement for injunctive relief in City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Ingram Park Mall, 735 F. Supp. 2d at 596-97. Later in the same opinion, the court noted that injunctive relief is the only remedy available under Title III of
33
for himself alone but also as a 'private attorney general', vindicating a policy that
Congress considered of the highest priority." Id., (citing Newman v. Piggie Park
Enterprises, 390 U.S. 400,401-02 (1968)). It is fair to assume that Congress had
the same understanding when it enacted Title III of the ADA. Ingram Park Mall,
735 F. Supp 2d at 596 (quoting Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307
crt Cir. 2003)).
Although the ADA authorizes enforcement by the Attorney General, the
latter has limited resources, and thus "private suits by necessity represent the main
tool for ensuring compliance with Congress' intent in passing the ADA." Ingram
Park Mall, 735 F. Supp 2d at 596 (quoting Kelly Johnson, Note, Testers Standing
Up For Title Ill of the ADA, 59 CASE W. REs. L. REv. 683,710 (2009) (emphasis
added)). Thus, "most ADA suits are brought by a small number of private
plaintiffs who view themselves as champions of the disabled." Ingram Park Mall,
735 F. Supp 2d at 596 (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1062 (9th Cir. 2007)) (emphasis added); D'Lil v. Best Western Encina Lodge
& Suites, 538 F.3d 1031, 1040 (9th Cir. 2008) (same). The Department of Justice
supports this position. Because the Department "cannot investigate every place of
the ADA. In instances where such relief is denied, the statute is stripped of its deterrent effect. 735 F. Supp. 2d at 604 n.7.
34
public accommodation" for ADA compliance, "[p ]rivate plaintiffs play an
important role in enforcing the ADA ... " ERC v. Abercrombie & Fitch Co, D. Md.
Case No. 1:09-cv-03157, Statement of Interest of the United States of America, at
1. See also Hensley v. Eckerhart, 461 U.S. 424, 445(1983) ("All of these civil
rights laws depend heavily upon private enforcement, and fee awards have proved
an essential remedy if private citizens are to have a meaningful opportunity to
vindicate the important Congressional policies which these laws contain.");
Alliance For ADA Compliance, Inc. v. Har-Gon Enterprises, Inc., No. 99-11703,
slip op. at 3 (11th Cir. 2000) ("The enforcement of civil rights statutes by plaintiffs
as private attorneys general is an important part of the underlying policy behind the
[ADA]"); Bruce v. City of Gainesville, 177 F.3d 949, 952 (11th Cir. 1999);
Mallory v. Harkness, 923 F. Supp 1546, 1551 (S.D. Fla. 1996) ("Congress intended
Section 1988 to prompt plaintiffs to act as citizen enforcers or private attorneys
general advancing our nation civil rights objectives and vindicating the liberty of
all citizens."). "Civil rights law depends heavily on private enforcement." Parr v.
L & L Drive-Inn Property, 96 F. Supp. 2d 1065, 1082 (D. Hawaii 2000).
4. Lyons and Lujan Are Distinguishable.
35
Some courts imposing a limited interpretation of standing rely primarily on
two Supreme Court cases: City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)
and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). However, reliance on
Lujan and Lyons is misplaced. See Clark v. McDonald's Corp., 213 F.R.D. 198,
229 (D.N.J. 2003) (finding Lujan inapplicable in context of ADA Title III suit and
holding that "a disabled individual who is currently deterred from patronizing a
public accommodation due to a defendant's failure to comply with the ADA has
suffered 'actual injury."').
In Ingram Park Mall, the U.S. District Court for the Western District of
Texas recently addressed this exact issue and declined to follow the
aforementioned cases, finding them distinguishable and inapposite for several
reasons. 735 F. Supp 2d at 596-605. First, the Lyons case involved a plaintiff who
had been stopped for a traffic violation and was placed in a choke hold by the
police without provocation or resistance on his part. The Ingram Park Mall court
reasoned that the Lyons de~ision "rested on specific conclusions." 735 F. Supp 2d
at 597. Important language noted by the Texas court from the Lyons decision is the
fact that the past civil rights violation in Lyons was "unaccompanied by any
continuing, present adverse effects[.]" Id. (quoting Lyons, 461 U.S. at 102). The
plaintiff in Lyons had done nothing to establish a real and imminent threat that he
36
would again be stopped for a traffic violation, then be illegally choked into
unconsciousness without provocation or resistance on his part. The Supreme Court
had also indicated the need to strike a balance between state and federal authority
and exercise restraint in enjoining a state's administration of its own criminal
laws.13 Lastly, the Texas district court noted that the "withholding of injunctive
relief did not mean that the federal law would exercise no deterrent effect in the
circumstances because Lyons had a damages remedy for his injury." Ingram Park
Mall, 735 F. Supp 2d at 597.
The Ingram Park Mall district court further ruled that the Lujan decision was
also distinguishable and inapplicable. Ingram Park Mall, 735 F. Supp 2d at 598,
604 n. 7 In Lujan, which involved the government regulation, or lack thereof, of an
entity other than the plaintiff, the Supreme Court had ruled that the plaintiff could
not show that one of its members would be directly affected by the environmental
impact of a government regulation involving an endangered species in a foreign
country. Ingram Park Mall, 735 F. Supp 2d at 597 (citing Lujan, 504 U2.S. at 563-
64 ). The Supreme Court found it was "beyond the limit" and "into pure
13Likewise, the Texas district court noted the Supreme Court's emphasis that "it is clear that in suits against the Government, at least, the concrete injury requirement must remain." Ingram Park Mall, 735 F. Supp 2d at 604 n.7 (quoting Lujan, 504 U.S. at 578).
37
speculation" reach a finding of "actual or imminent" injury where "anyone who
observes or works with an endangered species, anywhere in the world, is
appreciably harmed by a single project affecting some portion of that species with
which he has no more specific connection." Ingram Park Mall, at 735 F. Supp 2d
at 597 (quoting Lujan, 504 U.S. at 564). The Ingram Park Mall district court
distinguished Lujan, observing that ADA Title III suits are not suits against the
Government, that the language of the ADA ensures that both parties have an actual
stake in the outcome of the suit and that, "unlike in Lujan, denying standing in Title
III cases does result in the Act's having no deterrent effect, since injunctive relief is
the sole available remedy." Ingram Park Mall, 735 F. Supp 2d at 604 n.7.
In applying Lujan and Lyons, some lower courts have held that a Title III
ADA plaintiff must show a "concrete" plan to return to the subject property (the
Concrete Plan Test). As a subset of this Test such courts, including those cited by
Defendants in their Brief, sometimes apply the Proximity Test.
The "concrete plan" test has been widely criticized by both courts and
commentators. As one court recently stated: "not all activities are amenable to
such a concrete step, 14 and standing should not be denied to a plaintiff seeking
14The potential list of activities for which it is impossible to credibly possess concrete/set date plans to return is inexhaustive. No one can credibly state that
38
relief under the ADA merely because he cannot produce evidence of a specific date
and time to return." Norkunas v. Seahorse NB~ LLC, 720 F.Supp.2d 1313, 1318
(M.D. Fla.2010); see also Access for the Disabled~ Inc. v. Square~ LLC, 2007 U.S.
Dist. LEXIS 99118, --- WL --- (M.D. Fla. Oct. 4, 2007) ("It is not necessary that
[the plaintiff] have concrete and specific plans to return in order to establish a
threat of future injury so long as [the plaintiff] has a nonspeculative intent to do
so."); Access for America~ Inc. v Associated Out-Door Clubs. Inc., Fed. Appx. 818,
818-20 (11th Cir. 2006) (Barkett, J., dissenting) ("Especially in the disability
context, a "specific-date/set-plans" standard would produce patently absurd results
... [T]he disabled need not plan their lives in such minute detail and with such vast
forethought in order to invoke the ADA's protection."). In Ingram Park Mall, the
district court surveyed the criticisms of the Concrete Plan Test in reaching the
conclusion that these tests are too narrow and therefore inapplicable:
In 2000, Ruth Colker15 wrote that "[ c ]ourts that have applied Lyons to ADA Title III cases have applied the [standing] doctrine too
they will visit a movie theater ten months in advance, as they would be unable to predict the movies showing. Nor can anyone accurately predict the next time they will visit a funeral home, fast food restaurant, convenience store, or clothing store.
15ADA Title III: A Fragile Compromise, 21 BERKELEY J. EMP. & LAB. L.377 (2000).
39
stringently and have arguably misconstrued the nature of these Title III actions." Colker, supra at 397. Distinguishing Lyons, Colker noted that ADA Title III "cases do not involve extreme situations in which only a plaintiff's criminal conduct could cause future discrimination to occur," but instead "these are cases in which plaintiffs represent a class of litigants16 who repeatedly face instances of discrimination as a result of their own voluntary and lawful conduct." Id.
In 2002, Elizabeth Keadle Markey noted that "[ m ]any courts have relied on tenuous analogies to, and narrow interpretations of, judiciallycreated standing doctrine in deciding whether a plaintiff has standing under the ADA" and advocated "greater vigilance on the part of the courts to ensure that persons who suffer disability discrimination do have standing to bring their claims." Elizabeth Keadle Markey, The ADA's Last Stand?: Standing and the Americans With Disabilities Act, 71 FORDHAM L. REV. 185, 186 (October 2002).
In 2004, Professor Adam Milani surveyed the case law, noting that "[t]he generating force for ADA compliance of private suits will be blunted ... if courts persist in holding that plaintiffs do not have standing to remedy violations such as inaccessible buildings or the refusal to change policies regarding the provisions of services or auxiliary aids to people with disabilities." He recognized that "[b ]y their very nature, such violations are ongoing and not isolated occurrences." Adam A. Milani, Wheelchair Users Who Lack "Standing": Another Procedural Threshold Blocking Enforcement of Titles II and III of the ADA, 39 WAKE FOREST L. REv. 69, 113 (Spring 2004). Professor Milani argued that allowing standing in most Title II and III cases is actually consistent with the
16In this regard, the Ingram Park Mall district court made several references to authorities reasoning that standing interpretations are broadened where the injunctive relief sought benefits more than just the named plaintiff. 735 F. Supp 2d at 598-600. The court also cited with approval the Fifth Circuit opinion in Johnson v. Gambrinus Company, 116 F.3d 1052 (5th Cir 1997). Ingram Park Mall, 735 F. Supp. 2d at 600-01. There, the Fifth Circuit allowed standing for injunctive relief for a plaintiff who had suffered discrimination when touring a brewery. This is an activity which a given plaintiff typically does not repeat. The Fifth Circuit recognized that the relief sought affected more than just the single plaintiff.
40
holdings in Lyons and Lujan. He notes that "the 'odds' of the injury recurring are certain where a building is not in compliance with the ADA," and that the plaintiff and "every other person with the same disability" will confront the same barrier on every future visit. ld. He further argued that disabled plaintiffs need not establish imminent future injuries because "they have an actual and present injury - they are current! y deterred from visiting a building." I d. at 117-18.
Ingram Park Mall, 735 F. Supp 2d at 598.
One federal district court judge has written: "Especially in the disability
context, a "specific-date/set-plans" standard would produce patently absurd results,
and would almost certainly place plaintiffs in a Catch-22 so far as their credibility
is concerned. To have standing under the ADA, is a wheelchair-bound individual
who consistently but unpredictably frequents a particular Burger King required to
predict the very day on which he will next crave a Whopper?" Access v. America
v. Associated Out-Door, 188 Fed. Appx. 818 at *2 (11th Cir. 2006) (Barkett, J.,
dissenting). See also Ingram Park Mall, 735 F. Supp. 2d at 599 (citing and quoting
with approval). Judge Barkett also noted that the Eleventh Circuit had previously
held that an allegation that the plaintiff would return to the public accommodation
"soon" was sufficient. See Stevens v. Premier Cruises, 215 F.3d 1237 (11th Cir.
2000).
Requiring a civil rights plaintiff to plan a specific date of return pursuant to
the Concrete Plan test essentially requires him to play a game of chicken with
41
conduct violating his civil rights. He must prove a particular date, to the court's
satisfaction, when he plans to revisit his former discrimination, race toward that
date without hesitation, and hope justice is served to completion before that date
arrives. As a practical matter, architectural remedial measures often require
permits and construction. Such projects reasonably take six months to a year.
Defendants routinely ask for more time. Picking such a specific date when Mr.
Harty thinks he will be safe to revisit a property is nearly impossible, particularly
where, as here, the defendant is expending considerable resources to vigorously
litigate its right to remain non-compliant.
5. The ADA Expands Actual Injury To Loss Of Equality Of Opportunity.
"[T]he irreducible constitutional minimum of standing contains three
elements." Lujan v. Defenders of Wildlife, 504 U.S. 555,560 (1992). These
elements are "(1) an 'injury in fact' that is (a) concrete and particularized and (b)
actual or imminent; (2) a causal connection between the injury and the conduct
complained of; and (3) the likelihood that a favorable decision will redress the
injury." Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) (citing
Lujan, 504 U.S. at 560-61). Particularized means "that the injury must affect the
plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 n.l. "The party
42
invoking federal jurisdiction bears the burden of establishing these elements."
Lujan, 504 U.S. at 561. Since they are not mere pleading requirements but rather
an indispensable part of Mr. Harty's case, each element must be supported in the
same way as any other matter on which the plaintiff bears the burden of proof, i.e.,
with the manner and degree of evidence required at the successive stages of the
litigation. See id. At the pleading stage, general factual allegations of injury
resulting from Defendants' conduct may suffice, for on a motion to dismiss we
"presum[ e] that general allegations embrace those specific facts that are necessary
to support the claim." Lujan, 504 U.S. at 561; Public Citizen, Inc. v. Bomer, 274
F.3d 212, 218 (5th Cir. 2001).
The fundamental issue addressed in Title III ADA standing analyses is
whether there is a "case or controversy" and, more specifically, "redress ability." In
other words, will the plaintiff benefit from the injunctive relief sought? In this
regard, the issue is whether injury is "actual or imminent." Lujan, 504 U.S. at 560.
Therefore, Courts must decide whether an actual injury is ongoing and continuous
or, in the alternative, is imminent and will likely happen again.
This issue was recently addressed in Ingram Park Mall, where the district
court held that the injury described by the statute is not limited strictly to the
disabled person's actual encounter with specific ADA barriers. 735 F. Supp. 2d at
43
601-02. It is, in fact, far broader. The Ingram Park Mall court succinctly described
the views of other courts which applied more limited views of standing:
In the case of architectural barriers, courts finding a lack of standing unless the plaintiff alleges or proves a concrete plan to return to an establishment to suffer discrimination view the Title III injury as being limited to the plaintiff's actual interactions with the discriminatory barriers at the establishment. While this is undoubtedly an injury under Title III, it is not the only type of injury, and therefore not the only type of discrimination, prohibited by Title III. Rather, the ADA expressly contemplates loss of opportunity as an actionable injury.
735 F. Supp. 2d at 602 (emphasis added).
Indeed, the ADA is replete with Congress' stated intent to define injury as
being more than simple encounter with discriminatory barriers, but also to include
"equality of opportunity." Ingram Park Mall, 735 F. Supp. 2d at 602. The ADA
additionally proscribes denial of the "opportunity" to the disabled individual to
participate or benefit from a good, service, privilege, advantage or accommodation
that is not equal to that afforded to other individuals. 42 U.S.C.
§ 12182(b )(1 )(A)(I). The ADA likewise additionally proscribes the affording of
the "opportunity" to disabled individuals to participate in or benefit from a good,
service, facility, etc. that is not equal to that afforded other individuals. 42 U.S.C.
§ 12182(b )(1)(A)(ii).
44
Several other references in the ADA demonstrate Congress' intent not just to
equalize actual "participation" for disabled persons, but also the "opportunity" to
participate. In the Findings and purpose, Congress explained:
the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living and economic self-sufficiency for such individuals;
42 U.S.C. § 12101(a)(8) (emphasis added).
A disabled plaintiff who establishes discriminatory violations which
continue, has met his burden of showing that he is deprived the "opportunity" to
participate or benefit in the goods and services, etc, which is expressly listed as a
violation under 42 U.S.C. § 12182(b)(l)(A)(I) and (ii). Under 42 U.S.C. §
12182(b )(l)(A)(I) and (ii), the plaintiff's civil rights are presently and continuously
being violated because he is deprived the opportunity of visiting the premises free
of discrimination. The enforcement provision of the ADA supports this analysis.
In relevant part, the section provides: "Nothing in this section shall require a
person with a disability to engage in a futile gesture if such person has actual notice
that a person or organization covered by this subchapter does not intend to comply
with its provisions." 42 U.S.C. § 12188(a)(l) (emphasis added).
This language obviates the requirement that a court determine whether a
disabled plaintiff will again be injured in the future. Rather, because the plaintiff is
45
deprived of equal opportunity, the injury is ongoing and continuous as long as the
discriminatory barriers remain in place. As the Ingram Park Mall district court
observed:
Thus, the disabled plaintiff suffers an ongoing injury so long as she is effectively denied the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the entity. That Congress meant to restore disabled plaintiffs' choice and opportunity to visit an establishment on equal footing with the able bodied is further evident in the title of Chapter 126-"Equal Opportunity for Individuals with Disabilities."
Ingram Park Mall, 735 F. Supp 2d at 602. The Ingram Park Mall court reasoned
that the recognition of denial of opportunity as a continuous injury was "not only
consistent with the plain language of the ADA, it is consistent with Supreme Court
precedent. 735 F. Supp 2d at 602-04.
This analysis completely obviates the need for a district court to parse out
future events and ascertain whether they are speculative, non-speculative, concrete,
and/or particularized. It eliminates the problem of measuring how far a disabled
person lives from the property, how many times he has traveled through the area,
whether or not he has family there, etc. In this regard, the analysis shifts a Court's
focus from whether future injury is imminent. Rather, by recognizing that such a
person who encounters such discrimination and is aware that the discriminatory
barriers continue, is deprived the "equality of opportunity", then such injury is
46
present, ongoing and continuous. Therefore, the case or controversy requirements
are met and the plaintiff will benefit from the injunctive relief he seeks. Such
injunctive relief will restore his equality of opportunity. Moreover, this approach
reconciles with the meaning of the Act. Defendants, at any given property, will
owe an equal duty to all 43 million disabled Americans, rather than a select few
that meet narrow criteria. Likewise, all 43 million disabled Americans will enjoy
equal civil rights protection wherever they travel in the United States and will no
longer be blacked out to the vast majority of locations.
6. Plaintiff Should Not Have to Engage in a Futile Gesture.
Numerous Courts have recognized the effect of the "futile gesture" provision
of the Statute. Some have reasoned that the "futile gesture" provision addresses
and satisfies the "imminent threat of future injury" half of the case or controversy
requirement. Others have held that this provision satisfies the actual, present and
ongoing injury alternative to the case or controversy requirement. For example, in
Pickern v. Holiday Quality Foods, 293 F.3d 1133, 1138 (9th Cir. 2002), the Ninth
Circuit held that a plaintiff's injury "continues" "so long as the discriminatory
conditions continue, and so long as a plaintiff is aware of them and remains
47
deterred .... " In Clark v. McDonalds Corp., 213 F.R.D. 198 (D.N.J. 2003), the
District Court of New Jersey summarized as follows:
If the "futile gesture" language of Title III is to mean anything, it means that those in [plaintiff's] position may sue to bring into compliance with the ADA places that they know are non-compliant, without having to allege an intention to return to such places before their lawsuits can have the effect of forcing compliance
To the extent [plaintiff] is actually "discouraged from patronizing" the restaurants he has visited on account of his "aware[ ness] of the discriminatory barriers [he] will encounter there," such discouragement constitutes an actual and existing injury from which any perceived absence of imminent future harm cannot detract.. ... [T]oday's deterrence from visiting a place of public accommodation known to be out-ofcompliance with the ADA can constitute an actual and present injury as surely as tomorrow's visit to the same location can constitute a threatened and imminent one. The showing of imminence required by [Lujan] is simply unnecessary to the extent [plaintiff] seeks injunctive relief to remedy today's "actual harm," [citing Lujan], or "continuing, present adverse effects" from his past exposure to Defendant's allegedly illegal conduct [citation omitted].
213 F.R.D. at 229 (emphasis added.)
Other courts have relied on other language of the statute to eliminate the
'concrete/set plans" tests under the analysis whether injury is imminent. In Doran
v. 7-Eleven Inc., 524 F.3d 1034, 1041 (9th Cir. 2008), the Ninth Circuit recognized
that a plaintiff's injury is actual or imminent where discriminatory barriers deter
him from returning. See also Molski v. Army's Huntington Beach, 359 F. Supp. 2d
938, 947 (C.D. Cal. 2005) (holding that a plaintiff suffered actual and imminent
48
injury when he alleged that he was currently deterred from returning to the
accommodation because of ADA). See also Crazier v. Gamma Management
Group, Inc., No. 04-6031, 2005 WL 2644996, at *3 (E.D. Pa. 2005) (finding that
plaintiff had standing where he would return to property, but for its continuing
violations); Access 4 All, Inc. v. O.M. Management, LLC, No. 06-CV-0374, 2007
WL 1455991, at *8 (S.D. Ohio May 15, 2007) (plaintiff had standing where he
would return to property, but for its continuing violations); Clark v. Burger King,
255 F. Supp. 2d 334, 342 (D.N.J. 2003) (plaintiff's desire to patronize defendant's
facility free from discrimination is a cognizable interest for purposes of standing).
In other cases, courts have premised their decisions on 42 U.S.C. §
12188(a)(1), which provides that a plaintiff is not required to engage in the futile
gesture of returning to a non-compliant property. See Steger v. Franco, 228 F.3d
889, 892 (8th Cir. 2000) (plaintiff need not allege specific and concrete plan to
return to building before it is ADA compliant because such would be a "futile
gesture"); Disabled Americans for Equal Access, Inc. v. Ferries Del Carribe, 405
F.3d 60, 65 n.7 (1st Cir. 2005) (plaintiff did not have to engage in the futile gesture
of actually traveling aboard the non-compliant vessel again to establish standing);
Access 4 All, Inc. v. O.M. Management, LLC, 2007 WL 1455991, at *6 (plaintiff
need not engage in futile gesture of visiting non-compliant building); Access 4 All,
49
Inc. v. G & T Consulting Company, LLC, WL 851918, at *4 (S.D.N.Y. Mar.28,
2008) (same); Small v. General Nutrition Cos. 388 F. Supp. 2d 83, 87 (S.D.N.Y.
2005) (same).
The First Circuit has explained, "the existence of a private right of action ...
does not depend upon how many attempts a plaintiff has made to overcome a
discriminatory barrier, but, rather, upon whether the barrier remains in place."
Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003) (emphasis
added). The Fist Circuit held that, by virtue of the futile gesture provision,
Congress did not intend to overburden ADA litigants by having to demonstrate
ongoing injury when she is already aware of ADA violations and is deterred. 333
F.3d at 307. "Limiting Title III relief to instances in which a future violation
appears certain to occur would create a standard far more demanding than that
contemplated by the congressional objectives that influenced the ADA." ld.
Mr. Harty is currently being deprived the opportunity to visit the Hampton
Inn's Head Plaza property free of discrimination- an actual and continuous injury
expressly recognized by 42 U.S.C. § 12101(a)(2) and 42 U.S.C. § 12101(a)(7); and
expressly prohibited by 42 U.S.C. § 12182(b)(l)(A)(I), and. 42 U.S.C. §
12182(b )(l)(A)(ii). He is deterred by the Hampton Inn's substantial violations- as
were the plaintiffs in such court opinions as Doran, Pickem, Army's Huntington
50
Beach, Gamma Management Group. Inc .. O.M. Management. LLC, and Clark.
Mr. Harty is not required to engage in the futile gesture of visiting the Hampton
Inn's property while its violations are allowed to continue. See 42 U.S.C. §
12188(a)(l).
The courts that adhere to the Concrete Plan and Proximity Tests completely
overlook the "futile gesture" language of the statute. On the other hand, courts
which recognize the futile gesture language decline to apply the Concrete Plan and
Proximity Tests. In these latter cases, some courts hold that the deterrence a
plaintiff experiences is an ongoing and continuous actual injury. Other courts hold
that such deterrence constitutes imminent future injury. Indeed, some courts hold
that the futile gesture language and deterrence constitute both ongoing and
imminent injury. See Ingram Park Mall, 735 F. Supp 2d at 601-05.
In Ingram Park Mall, the Texas court went further by recognizing that an
additional injury is the lack of equality of opportunity. "[A]ny disabled plaintiff
who alleges that she is being denied the opportunity to visit or is currently being
deterred from visiting a public accommodation that is violating Title III alleges
sufficient present injury in fact for prospective equitable relief." 735 F. Supp 2d at
604.
51
Mr. Harty has thus established the legally cognizable harm he continues to
suffer as long as Defendants' property remains non-compliant and discriminates
against him. Indeed, wherever Mr. Harty is or resides, he is made keenly aware
that Defendants accord him"inferior status" (recognized as discrimination under 42
U.S.C. § 12101(a)(6)); he senses the "futility" of attempting to return (recognized
under§ 12188); he feels the lack of "equality of opportunity" and Defendants'
discriminatory practices contribute to his sense of isolation. In this regard, all 43
million disabled Americans are treated equally once they encounter such
discrimination. His injuries, and the knowledge that he is not welcome, are
substantial, ongoing and continuous. As the Ingram Park Mall district court held,
"following the reasoning of these precedents, in an ADA Title III case, the risk of
injury in fact is not speculative so long as the alleged discriminatory barriers
remain in place, the plaintiff remains disabled, and the plaintiff is 'able and ready'
to visit the facility once it is made compliant." 735 F. Supp 2d at 604. Under the
court's reasoning, this constitutes a sufficient present injury.
7. Plaintiff Has Standing As A Tester
Mr. Harty is a civil rights advocate for the disabled and monitors
compliance of places of public accommodations with the ADA. This dual
52
motivation has been considered by various courts and held to serve to establish a
plaintiff as a bona fide patron. See Molski v. Price, 224 F.R.D. 479, 483 (C.D. Cal.
2004) (holding that intent is relevant, motivation irrelevant, and intent to return to
monitor ADA compliance is satisfactory); Disability Advocates and Counseling
Group, Inc., v. 4SK, Inc., 2005 U.S. Dist. Lexis 44389, at *17 (M.D. Fla. 2005)
(recognizing standing of tester); Bruni v. Fine Furniture By Gordon's Inc., 2007
U.S. Dist. Lexis 120, at *2, (M.D. Fla. 2007) (recognizing standing of testers);
Access For The Disabled v. Tr. Herbert Chas Pohlman, 2:06-cv-00178 slip op. at 2
(M.D. Fla. 2007) (recognizing standing of testers).
Ample precedent supports standing for Title III ADA plaintiffs who act as
"testers." In Harty v. Simon Property Group, LLC, 428 Fed. Appx. 69 (2d Cir.
2011), the Second Circuit mentioned tester standing as one reason for granting Mr.
Harty standing. Tester standing has also been recognized in a number of other civil
rights cases where the plaintiff purposefully sought out the discriminatory practice
for the sole purpose of establishing standing and filing a lawsuit. In Tandy v. City
of Wichita, 380 F.3d 1277 (lOth Cir. 2004), the Tenth Circuit recognized standing
under Title II of the ADA to testers who did not reside in the Wichita area, but rode
the bus system for the purposes of challenging its non-compliance. In Havens
53
Realty Corp. v. Coleman, 455 U.S. 363, 374-75 (1982), the Supreme Court held
that the Fair Housing Act ("FHA") contemplated "'tester' standing" for a litigant
who never intended to rent the subject apartment, but whose sole purpose was to
encounter defendant's unlawful practices. The Court recognized that the injury
underlying tester standing stems from the denial of the tester's statutory rights. ld.
at 374-75. The Court reasoned that the FHA's broad statutory language, evinced a
congressional intent to confer standing "to the full limits of Article III," which
includes tester standing. ld. at 372-74. The Court particularly noted that Congress
had omitted any requirement that the plaintiff affected by the defendant's illegal
conduct be "bona fide." ld. at 374. Therefore, even individuals who purposefully
engaged the defendant for the purpose of encountering discrimination and
instituting a lawsuit had standing.
Likewise in Evers v. Dwyer, 358 U.S. 202 (1958), the Supreme Court
granted injunctive relief and recognized tester standing to a black plaintiff who
boarded a bus for the purpose of encountering discrimination and filing a lawsuit
thereafter. See also Pierson v. Ray, 386 U.S. 547,558 (1967). Various circuit
courts have followed the Supreme Court's reasoning in Havens Realty to hold that
tester standing exists under other anti-discrimination statutory provisions. See,
54
~.,Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1103-04 (9th Cir. 2004)
(relying on Havens Realty to conclude that disabled testers who sue under§
3604(f)(2) of the FHA and who have experienced the "dignitary harm" of
observing discriminatory conditions have standing); Kyles v. J .K. Guardian Sec.
Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000) (relying on Havens Realty to
conclude that employment discrimination testers who were discriminated against
had standing to sue under Title VII of the Civil Rights Act of 1964); Watts v. Boyd
Props., Inc., 758 F.2d 1482, 1485 (11th Cir. 1985) (relying on Havens Realty to
conclude that fair housing testers had standing to sue under 42 U.S.C. § 1982);
Smith v. Pacific Properties and Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) (testers
have standing under FHA). Each of these circuits relied upon the statutory
provision's broad language and anti-discriminatory purpose in concluding that
testers had standing to sue. See Smith, 358 F.3d at 1103-04; Kyles, 222 F.3d at
297-99; Watts, 758 F.2d 1482, 1484-85.
In Ingram Park Mall, the district court held that testers have standing in Title
III ADA cases based on the above precedent. 735 F. Supp 2d at 604-05. Put
another way, it does not matter what motive the disabled person had when he
visited the defendant's respective property. "Where there has been non-
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compliance, the actor whose litigation brings about compliance has protected
important civil rights of minorities, no matter that the actor's motives may have
been far less than altruistic. The grounds upon which a litigation are based are
rarely identical to the motive of the litigator." Maloney v. City of Marietta, 822
F.2d 1023, 1026 n. 5 (11th Cir. 1987); see also Access 4 All, Inc. v. Absecon
Hospitality Corp., No. 1:04-cv-6060, 2006 WL 3109966, at *7 (D.N.J. 2006)
(plaintiff's motive for visiting property is irrelevant); Norkunas v. Seahorse NB,
LLC, 720 F.Supp.2d 1313, 1315-16 (M.D. Fla.2010) (plaintiff's capacity as a
tester, in and of itself, does not warrant dismissal for lack of subject matter
jurisdiction); Bruni v. Fine Furniture By Gordo's Inc., 2007 U.S. Dist. Lexis 120
(M.D. Fla. 2007) (recognizing tester standing); Bruni v. FMCO, LLC, 2007 U.S.
Dist. Lexis 18641 *11 (M.D. Fla. 2007) (recognizing tester standing).
VIII. CONCLUSION
Mr. Harty has standing to maintain his ADA Title III claims in this case. He
has sufficiently alleged specific architectural barriers existing at the Defendant's
premises that violate the ADA, has explained in detail how these architectural
barriers have prevented him from accessing and enjoying the use of the subject
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property, has demonstrated that he is deterred from visiting the property and has
shown a loss of equal opportunity based upon his disability. Mr. Harty has
therefore alleged actual and specific injuries resulting from Defendant's myriad
violations of Title III of the ADA.
Mr. Harty has also alleged or establish sufficient connection with Stamford,
Connecticut because, barring illness, he travels at least annually to the area to
attend gun shows, shop and dine. Mr. Harty has also alleged that he formerly lived
in nearby Nyack, New York and still has family in that area. Mr. Harty has
therefore demonstrated a specific and concrete plan to return to the subject property
in the future. Finally, Mr. Harty has established that he has standing as a tester.
Accordingly, Mr. Harty should be found to have standing.
For all of the above reasons, the district court's decision should be overruled.
Respectfully Submitted,
THOMAS B. BACON, P.A.
By: s/John F. Ward John F. Ward, Esquire 200 Country Club Rd. Royersford, P A 19468 Phone: 610-952-0219
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