Lead Opinion
Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge RYMER.
We consider whether Hollynn D’Lil has standing to seek attorney’s fees in an action brought against the Best Western Enema Lodge & Suites (“Best Western Enci-na”) under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and California civil rights laws. We conclude that she does.
Hollynn D’Lil is a paraplegic who requires the use of a wheelchair for mobility. On December 13, 2001, D’Lil traveled from her home in Sacramento to Santa Barbara, California in order to conduct a property inspection for attorney Jason Singleton.
When D’Lil arrived at the hotel that evening, she encountered what she describes as “multiple and severe barriers to disabled access.” Steep ramps, lack of handrails, and high counters made it difficult for D’Lil to maneuver in the front lobby and desk area. After D’Lil checked in and proceeded to her room, she discovered that the area of the hotel containing the designated disabled access rooms did not have any van accessible parking spaces nearby. Once inside her room, D’Lil found that many of the facilities, including the door hardware, curtain and heating controls, and lamps were either too high or too far from a clear path of travel for her to use. The path to the bathroom was blocked by beds and furniture and the bathroom itself lacked sufficient room to approach and safely use the toilet, which was too low to the ground. The grab bars on either side of the toilet were not properly positioned nor were they of the correct length, resulting in “bruises and strains to both [of D’Lil’s] arms and legs while trying to use the facility.” The bathtub was similarly inaccessible.
On December 13, 2002, D’Lil filed suit against the Best Western Encina seeking injunctive relief under Title III of the ADA,
D’Lil then filed a motion for attorney’s fees. In opposing D’Lil’s motion, the defendants did not contest her standing to sue.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Whether a party has standing to pursue its claim is a question of law that we review de novo. See Skaff v. Meridien North America Beverly Hills, LLC,
II. Discussion
A.
As an initial matter, we reject D’Lil’s argument that the district court lacked the authority to raise the issue of standing sua sponte. “[Standing is an essential and unchanging part of the case- or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,
D’Lil’s principal rejoinder is that the question of subject matter jurisdiction was resolved by the parties in the consent decree, and that the district court was therefore powerless to reexamine the issue by challenging D’Lil’s standing after the decree became final. This argument lacks merit for two reasons. First, it proceeds from the faulty premise that the parties stipulated to the existence of standing in the consent decree. Although the consent decree contains a stipulation to the existence of federal question jurisdiction, the decree is silent on the issue of standing.
Second, even if the consent decree did contain such a stipulation, it would be of no moment. As the Supreme Court has explained, “[t]he question of standing is not subject to waiver....” Hays,
B.
A party invoking federal jurisdiction has the burden of establishing that it has satisfied the “case-or-controversy” requirement of Article III of the Constitution; standing is a “core component” of that requirement. Lujan,
First, [it] must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan,
In the present case, the only issue is whether D’Lil met her burden with respect to the second prong of the “injury in fact” requirement, specifically, whether she demonstrated that her injury was “actual or imminent” at the time that she filed her complaint. Lujan,
In recent years, we have clarified the scope of the “actual or imminent” injury requirement in the context of suits for injunctive relief brought under Title III of the ADA. In Pickern v. Holiday Quality Foods, Inc., we held 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.” Similarly, a plaintiff who is threatened with harm in the future because of existing or imminently threatened non-compliance with the ADA suffers “imminent injury.”
In order to show the actual and imminent nature of her injury, then, D’Lil must demonstrate her intent to return to the Santa Barbara area and, upon her return, her desire to stay at the Best Western Encina if it is made accessible. On this record, there can be little doubt that she has done so. D’Lil’s intent to return to the Santa Barbara area is evidenced by the regularity with which she visited the city before, during, and after her stay at the Best Western. Encina. By her declaration, and her testimony at the evidentiary hearing, D’Lil demonstrated that she has been visiting the Santa Barbara area since the early 1980s for both business and pleasure.
D’Lil’s desire to stay at the Best Western Encina on future trips to Santa Barbara if it were made accessible is also well supported by the evidence that she submitted at each successive stage of the litigation. In her complaint, D’Lil stated that she “would like to return and use the subject Best Western Encina on a spontaneous, but full and equal basis” but that she “is prevented from doing so by defendants’ failure and refusal to provide disabled persons ... with ‘full and equal access’ [to its] facilities.” In opposing defendants’ motion for summary judgment, D’Lil submitted a declaration again reiterating that she “definitely plan[s] on staying at the [Best Western Encina] when it is made accessible.”
Despite D’Lil’s declaration and testimony detailing her intent to return to Santa Barbara and her preference for the Best Western Encina, the district court concluded that she failed to “even address[] the relevant issue” because, in the court’s view, D’Lil failed to provide any evidence of her intent to return at the time the action was filed — December 13, 2002. See Skaff,
D’Lil also gave detailed reasons as to why she would prefer to stay at the Best Western Encina during her regular visits to Santa Barbara if it were made accessible including the hotel’s style, price, and location. Because D’Lil did not return to the hotel after she filed suit, she did not have an opportunity to develop new impressions of it. Nor is there any indication in the record that anything happened between the time that the complaint was filed and the evidentiary hearing that would alter D’Lil’s opinion of the hotel or her desire to stay there once it was renovated. Thus, D’Lil’s stated reasons for preferring the Best Western Encina at the evidentiary hearing were necessarily based on impressions of the hotel that were formed, and that she held, at the time that she stayed there and subsequently filed suit.
In light of this testimony, we cannot agree with the district court that D’Lil failed to provide evidence of her intent to return at the time that she filed suit. To the contrary, her testimony plainly evidences such an intent. Accordingly, we hold that D’Lil established that she suffered an “actual or imminent” injury sufficient to confer standing.
C.
The district court’s purported credibility ruling does not disturb our conclusion that D’Lil sufficiently established her standing to sue. This is so primarily because the district court explicitly declined to decide the credibility issue, relying instead on the ground that D’Lil did not introduce evidence of her intent to return in December 2002 to find that she lacked standing: a ground that we reject supra. Nevertheless, the district court expressed concerns about D’Lil’s credibility throughout its opinion. To the extent that its concerns might be viewed as an adverse credibility finding, we reject the legal reasoning on which such finding is based and, therefore,
The district court’s concerns about D’Lil’s credibility focused particularly on her past ADA litigation. In commenting on D’Lil’s approximately sixty prior ADA suits, the court wrote, “it appears Plaintiff declares that she intends to return to nearly every place she sues (as indeed she must in order to establish standing in federal court). While some of these allegations may have initially been accepted in other cases without question, even at the trial stage, as more suits are filed and more — and contradictory' — -allegations are made, credibility concerns increase.” Dist. Ct. Order at 17.
The attempted use of past litigation to prevent a litigant from pursuing a valid claim in federal court warrants our most careful scrutiny. See, e.g., Outley v. City of New York,
Here, the district court relied on D’Lil’s prior ADA suits to question the sincerity of her intent to return to the Best Western Encina. The court noted that D’Lil had not returned to six hotels that she sued during a 2002 trip to Redding, California and found it implausible that a plaintiff with approximately sixty prior ADA suits sincerely “intends to return to nearly every place she sues.” The record contains no evidence of whether those places had been made accessible, such that D’Lil could have safely returned if she so wished. Moreover, whether or not D’Lil visited the hotels in Redding says little about her intent to visit the Best Western Encina, considering that D’Lil identified specific reasons — including the presence of the Marshes and expected future work in Solvang — for returning to Santa Barbara. The district court’s speculation about the plausibility of D’Lil’s intent to return to each place of public accommodation that she sued is further undermined by evidence of D’Lil’s extensive and frequent travel throughout the state, buttressing her claim that she would again have occasion to patronize the establishments she sued if they were made accessible. Although we afford great deference to a district court’s credibility assessments, on this record we cannot agree that D’Lil’s past ADA litigation was properly used to impugn her credibility. Accordingly, because the district court focused on D’Lil’s history of ADA litigation as a basis for questioning the sincerity of her intent to return to the Best Western Encina, we reject its purported adverse credibility determination.
D.
Finally, D’Lil requests that we reassign this case to a different district judge on remand.
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Bolt v. United States,
Although the record reflects a sense of frustration on the part of the district judge with D’Lil and her counsel, we find no evidence of personal bias. See, e.g., Liteky v. United States,
III. Conclusion
For the reasons set forth above, we reverse the district court’s dismissal of D’Lil’s motion for attorney’s fees for lack of standing as well as its imposition of sanctions, and remand for that court to consider the merits of the motion.
REVERSED and REMANDED.
Notes
. D'Lil works as an "accessibility consultant,” contracting with private attorneys and local governments to evaluate properties for barriers to disabled access.
. Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment ... of any place of public accommodation.” 42 U.S.C. § 12182(a). "Discrimination” is defined as "a failure to remove ... barriers ... where such removal is readily achievable” or, "where an entity can demonstrate that the removal of a barrier ... is not readily achievable, a failure to make ... accommodations available through alternative methods if such methods are readily achievable.” 42 U.S.C. § 12182(b)(2)(iv)-(v). Title III provides for injunctive relief as the exclusive remedy for private individuals seeking to enforce the law. 42 U.S.C. § 12188(a)(2).
. Although defendants did not raise the issue in opposing the motion for attorney's fees, they had previously challenged D'Lil's standing in their motions to dismiss and for partial summary judgment. Both challenges were rejected.
. D’Lil's brief as well as her attorney's communications with defense counsel and the court prior to the evidentiary hearing reflect
. In D’Lil’s declaration, she attributes her fondness for Santa Barbara to "the region's beauty, the weather; the history of the region; my friends [the Marshes] who live there; my past frequent visits with my children, which provides me with a sort of history and familiarity with its surroundings that make vacationing there enjoyable; the many major attractions there, especially the Mission and the beach; the downtown shopping and the local cuisine, which is unique and outstanding.”
. This statement, like several others in D’Lil’s declaration, was incorporated from a previous declaration in a related case that D’Lil filed against the Ramada Limited after an unsuccessful attempt to find an accessible room at that hotel during the same trip to Santa Barbara in December 2001. See D’Lil v. Ramada Limited, SACV 03-589-CJC (Shx).
. At the evidentiary hearing, D’Lil also explained why she preferred the Best Western Encina to other accessible hotels in the area. One of the accessible hotels requires her to travel with a companion; another is expensive and is "very difficult to stay [at] because it’s so far to go for everything”; a third she described as having "problems.” Moreover, D’Lil testified that the small number of accessible rooms within each of these hotels decreases the chances that she will be able to secure a reservation on any given trip.
.We note that although the district court faulted D’Lil’s counsel for failing to elicit ex
. A careful review of D’Lil’s testimony also shows that she had at least one concrete plan to return to the Santa Barbara area at the time that she filed suit. See Lujan,
. Our authority to do so derives from 28 U.S.C. § 2106, which affords appellate courts
Concurrence Opinion
concurring in part and dissenting in part:
I agree with Part II.A but not with Parts II.B and C of the majority opinion. Consequently, I concur in Part II.A and dissent as to Parts II.B and C.
Part II.B acknowledges (properly, in my view) the need for an ADA plaintiff to show “a real and immediate threat of repeated injury” for purposes of standing. Fortyune v. American Multi-Cinema, Inc.,
First, it dismisses Lujan’s distinction between “ ‘some da/ intentions” and “concrete plans,”
Second, instead of deferring to the district judge’s assessment, the majority decides for itself what “the obvious and most reasonable inference to be drawn from [D’Lil’s] testimony” is. Maj. Op. at 1038. That is not, however, our role when reviewing a district court’s factual determinations after an evidentiary hearing. See, e.g., Bouman v. Block,
Having heard testimony from D’Lil, the district court found that D’Lil had adduced no evidence as to her intent to return to Santa Barbara or to the Best Western (if accessible) as of December 2002, when the action was brought.
Even though the majority holds that the court did get it wrong, Part II.C nevertheless discusses credibility. It recognizes that the district court only expressed concerns about credibility. Still, to the extent the court’s concerns might be taken as an adverse credibility finding, the majority rejects the “legal reasoning” on which any such finding is based. Maj. Op. at 1039. Evidently this is because, in the majority’s view, the district court “focused on D’Lil’s history of ADA litigation as a basis for questioning the sincerity of her intent to return to the Best Western Encina.” Id. at 1040. That is not, however, what the district court did. Rather, the court reasoned that statements D’Lil made in connection with other lawsuits are relevant to credibility.
When, as here, standing turns on the likelihood of being wronged again, see Fortyune,
In sum, I would affirm because D’Lil failed to show any concrete plan or intent to return to the Best Western Encina as of the time she filed her complaint. Accordingly, she falls short of the standard for standing to seek injunctive relief. To the extent questioned by the majority, I would not fault the district court for credibility concerns based on prior representations of an intent to return to numerous places of public accommodation coupled with the reality that those commitments remain outstanding.
. As the court explained:
It is obvious that Plaintiff could easily have testified to her intention — as of December 13, 2002 — to return to Santa Barbara, her plans for returning to Santa Barbara, and her intention to stay at the Encina Lodge if it were made Accessible. Her testimony, if credited, and if factually sufficient to meet the Lujan requirements, were all that was necessary to meet her burden. Yet Plaintiff was asked no questions that would elicit such testimony. Instead, Plaintiff was asked about her present intentions — in other words, she was asked about her intentions approximately two years and nine months after the relevant time frame. Even then, Plaintiff said only that (1) she had "a case coming up for Mr. Singleton,” (2) she had a trial in Santa Barbara (apparently the suit she filed against Ramada), and (3) she had “been talking about taking a vacation down to Santa Barbara.” Plaintiff later testified that the case for Mr. Singleton was in Carpenteria, not Santa Barbara, and that she has no other work in Santa Barbara. Because questions relating back to 2002 were so obviously relevant and could so easily have been addressed, the Court can only assume the answers would not have established standing.
. There was evidence to this effect with respect to at least six prior suits arising out of a trip that D’Lil took to Redding. Although the record contains no evidence of whether these places had been made accessible such that D’Lil could have safely returned, Maj. Op. at 1040, the more relevant point is that D’Lil never tried to find out. Likewise, the majority posits that whether or not D’Lil revisited the hotels in Redding says little about her intent to visit the Best Western Encina. Id. However true this may be given differences between Redding and Santa Barbara, as well as how far apart they are, the salient inference about the likelihood of her returning to the Best Western Encina is that D’Lil said she would return to the Redding hotels but has not yet done so.