Deborah Laufer v. Arpan LLCDeborah Laufer v. Arpan LLC
D.C. Docket No. 1:19-cv-00200-AW-GRJ
NEWSOM, Circuit Judge:
Another day, another standing case. In this iteration, we have to decide whether an ADA plaintiff suffered a “concrete” injury when she viewed a hotel’s website that omitted accessibility-related information required by federal regulations and as a result, she says, experienced “frustration and humiliation”—even though she admits that she had (and has) no intention to personally visit the hotel. Today’s case raises difficult questions about how to apply sometimes dissonant standing precedents. But in the final analysis, our recent decision in Sierra v. City of Hallandale Beach, 996 F.3d 1110 (11th Cir. 2021)—which, in turn, relied on the Supreme Court’s decisions in Heckler v. Mathews, 465 U.S. 728 (1984), and Allen v. Wright, 468 U.S. 737 (1984)—requires us to hold, at this stage of the proceedings, that our plaintiff has at least alleged an Article-III-qualifying “stigmatic” injury.
I
Deborah Laufer is “disab[led]” within the meaning of the Americans with Disabilities Act: She has trouble walking without assistive devices, can’t use her hands normally, and is visually impaired. See
In pertinent part, the ADA states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”
One of those regulations applies to hotel owners and operators, and governs “reservations made by any means, including by telephone, in-person, or through a third party.”
Laufer alleges that the Value Inn’s website and its listings on third-party sites violated ADA regulations. Specifically, she says, the sites didn’t mention or provide the option of booking accessible rooms, nor did they provide information about rooms’ accessibility features (accessible showers, compliant furniture, etc.). Laufer visited these websites to test them for compliance with the regulations and to assess the hotel’s accessibility features. She alleges that she has suffered and continues to suffer “frustration and humiliation as the result of the discriminatory conditions present” on the websites, and that the sites contribute to her “sense of isolation and segregation.” Laufer insists that she intends to view the websites
Laufer filed a complaint seeking a declaratory judgment, injunctive relief, and attorneys’ fees. Arpan argued, among other things, that Laufer lacked Article III standing to sue. After limited discovery, Laufer moved for summary judgment. The district court denied summary judgment and instead dismissed the case for want of jurisdiction on the ground that Laufer lacked standing. Laufer, the court held, hadn’t suffered a “concrete” injury because the information omitted from the websites “would be useless to her” given that she never intended to visit the Value Inn, and because she couldn’t show any constitutionally cognizable stigmatic harm. The court further found that her injury wasn’t sufficiently “particularized” because any harm that she experienced was “the same harm every other website visitor would suffer.”
The only issue on appeal is whether the district court correctly concluded that Laufer suffered no concrete and particularized injury and therefore lacked standing to sue. Our precedents compel us to vacate and remand.2
II
A plaintiff has Article III standing if she can establish (1) an injury in fact (2) that is fairly traceable to the defendant’s conduct and (3) that is redressable by a favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “To establish an injury in fact” at step one, “the plaintiff must demonstrate that [s]he suffered ‘an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.’” Sierra, 996 F.3d at 1113 (quoting Lujan, 504 U.S. at 560). A “concrete” injury must be “real, and not abstract,” but can be either “tangible” or “intangible.” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016) (quotation marks omitted). A
The principal question before us is whether Laufer has suffered a concrete intangible injury of the sort that suffices for Article III. The Supreme Court has directed us to determine an intangible harm’s concreteness as follows: We first assess whether the alleged injury bears a “close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021); see also Spokeo, 578 U.S. at 341 (similar, but looking to both “English [and] American courts”). Separately, “because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” Spokeo, 578 U.S. at 341; see also TransUnion, 141 S. Ct. at 2204–05. But regardless of Congress’s judgment—regardless of whether an alleged injury results from the violation of a right that Congress has recognized and made individually enforceable through a private cause of action—a reviewing court must “independently decide whether a plaintiff has suffered a concrete harm under Article III” because Congress cannot “us[e] its lawmaking power to transform something that is not remotely harmful into something that is.” TransUnion, 141 S. Ct. at 2205 (quotation marks omitted).
First things first: Laufer’s alleged injury—her inability to access certain information on a hotel’s website and her resulting emotional disquiet—bears no “close relationship” to any traditional common-law cause of action. To be sure, Laufer alleges
Despite the absence of a close common-law comparator, we conclude that under existing precedent—both our own and the Supreme Court’s—Laufer has alleged a concrete intangible injury. In Sierra, we held that a deaf plaintiff suffered a concrete “stigmatic” injury when he watched, but could not hear and thus understand, videos that a city posted on its official website and for which it refused to provide closed captioning. 996 F.3d at 1114. Relying on the Supreme Court’s decision in Allen v. Wright, 468 U.S. 737 (1984), we held that “[a]n individual who suffers an intangible injury from discrimination can establish standing if he personally experienced the discrimination.” 996 F.3d at 1113 (citing Allen, 468 U.S. at 757 n.22). Quoting another of the Court’s decisions, Heckler v. Mathews, 465 U.S. 728 (1984), we reasoned that “[d]iscrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ . . . can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their
Sierra can be read in either of two ways—only one of which, we conclude, survives the Supreme Court’s intervening decision in TransUnion.3 Construed broadly, Sierra suggests that concrete injury exists whenever an individual experiences illegal discrimination, regardless of whether she suffers any discernible adverse effects. We emphasized there that the plaintiff had been “personally and directly subjected to discriminatory treatment” and said that he, “as an individual with a disability, ha[d] a concrete interest in equal treatment under the ADA and the Rehabilitation Act.” Id. at 1114. Notably for present purposes, in concluding that the plaintiff had suffered a concrete injury, we made no reference to whether he had any personal need for the information in the inaccessible videos. Instead, we emphasized his statutory interest in equal treatment “under the ADA and the Rehabilitation Act.” Id. Needless to say, Laufer would have standing under this broad reading of Sierra because she alleges that she personally experienced discrimination in violation of the ADA.
But we think that TransUnion likely forecloses the broad reading of Sierra. The Supreme Court held there that a reviewing
But there is a narrower reading of Sierra that, we conclude, survives TransUnion. We observed there that the plaintiff’s allegations of emotional injury—his “humiliat[ion], embarrass[ment], and frustrat[ion]”—“further indicate[d] that he suffered a concrete and particularized injury” because, we explained, “plaintiffs may recover damages for emotional distress for a violation of section 504 of the Rehabilitation Act.” 996 F.3d at 1114 n.4 (citing Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1198 (11th Cir. 2007)).
Laufer’s allegations satisfy Article III under this narrower reading of Sierra. Because she claims not only that she suffered illegal discrimination but also that the discrimination resulted in “frustration and humiliation” and a “sense of isolation and
III
The upshot: Insofar as the district court dismissed Laufer’s case on the ground that she failed to adequately allege a concrete and particularized injury, it erred. Under existing precedent, Laufer’s allegations of frustration and humiliation are facially sufficient to demonstrate stigmatic-injury standing.
It remains for the district court to determine (or, if it has done so already, to clarify) whether, as a factual matter, Laufer has shown that she suffered the requisite frustration and humiliation as a result of viewing the Value Inn’s websites. See Kennedy v.
VACATED and REMANDED.
There arе times when newer Supreme Court cases, because of their reasoning and language, make older cases look as though they are on the brink of extinction. When that happens, the impulse—the instinct, if you will—is to discard the tattered old in favor of the shiny new. But the Supreme Court has told us on numerous occasions that only it has the authority to overrule its prior decisions, even when those decisions have been undermined, and that until it wields that power, lower courts must continue to recognize and apply the old with the new. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”).
I agree with the court that Ms. Laufer has alleged stigmatic injury which gives her Article III standing and I therefore join its opinion. But I also believe that Ms. Laufer has standing as an ADA tester under an “informational injury” rationale pursuant to Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). Given the trend of recent Supreme Court cases, Havens Realty may be inconsistent (in whole or in part) with current standing jurisprudence. For now, though, it remains binding precedent that governs here.
Title III of the Americans with Disabilities Act provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
In 2019, Ms. Laufer filed an ADA lawsuit against Arpan, LLC, which operates a hotel in Jackson County, Florida. She alleged that the hotel’s own website and several third-party websites, which she visited on September 16, 2019, failed to comply with the requirements of
II
As relevant here,
In addressing whether Ms. Laufer has Article III standing, we must assume that she has a valid ADA claim against Arpan for a violation of
III
Ms. Laufer is an ADA tester who alleges that when she visited the hotel’s website and third-party websites, she was denied
A
Havens Realty involved a “racial steering” claim under the Fair Housing Act of 1968,
The district court in Havens Realty dismissed the claims of the tester plaintiffs (as well as those of the organization) for lack of
For our purposes, the important aspect of Havens Realty is its holding that Ms. Coleman had standing to sue in her capacity as a tester, i.e., an individual “who, without an intent to rent or purchase a home or apartment, pose[s] as [a] renter[ ] or purchaser[ ] for the purpose of collecting evidence of unlawful steering practices.” Id. at 373. First, the Supreme Court noted that
In Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013), we applied Havens Realty to permit tester standing under Title III of the ADA with respect to alleged architectural barriers. We explained that a disabled person suffers an invasion of his statutory rights under Title III of the ADA when he “encounters architectural barriers that discriminate against him on the basis of disability,” and concluded that Title III‘s anti-discrimination and right-of-action provisions were similar to the FHA provisions at issue in Havens Realty. See id. at 1332–33. Here‘s how we phrased our holding:
We hold that . . . Houston‘s tester motive behind his visits to the Presidente Supermarket does not foreclose standing for his claim under
42 U.S.C. §§ 12182(a) ,12182(b)(2)(A)(iv) , and12188(a)(1) of Title III. By the same token, we conclude that “bona fide patron” status is not a prerequisite for Houston to obtain standing for a lawsuit under these statutory provisions. Stated differently, the alleged violations of Houston‘s statutory rights under Title III may constitute an injury-in-fact, even though he is a mere tester of ADA compliance.
Id. at 1334. We also explained that “this сonclusion alone is not enough. Because . . . Houston seeks injunctive relief, he must also show a real and immediate threat of future injury.” Id. Examining the totality of the circumstances, we concluded that the necessary showing had been made. See id. at 1335–37. Finally, we rejected the defendant‘s argument that standing would be inconsistent with Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). See 733 F.3d at 1337–40.3
The district court here distinguished Havens Realty on a number of grounds and ruled that Ms. Laufer did not have Article III standing as a tester. Let me explain why I respectfully disagree.
First, the district court suggested that the Supreme Court‘s holding in Havens Realty as to the standing of Ms. Coleman (the black tester plaintiff) was dicta because the organizational plaintiff was also found to have standing. Because only one plaintiff needs to have standing for a case to go forward, the district court reasoned that “the standing of the tester plaintiff was not essential.” D.E. 45 at 13. This approach, however, runs headlong into the principle that alternative holdings on a given issue both have precedential effect. The Supreme Court has made that clear, and so have we. See Com. of Mass. v. United States, 333 U.S. 611, 625 (1948) (where a case has “been decided on either of two independent grounds” and “rested as much upon the one determination as the other,” the “adjudication is effective for both“); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (en banc) (“It has long been settled that all alternative rationales for a given result have precedential value.“). If the district court were right, one could argue that the Supreme Court‘s holding in Havens Realty as to the standing of the organizational plaintiff was also dicta because the Court had ruled that Ms. Coleman had standing.
Second, the district court concluded that, unlike Ms. Coleman—who was the object of a misrepresentation made unlawful by the FHA—Ms. Laufer did not have a substantive right under the ADA to “have certain information on a website.” D.E. 45 at 13. But that is a merits determination that should not affect the standing analysis. As noted earlier, we have to assume that Ms. Laufer will succeed on the merits of her ADA claim, see Culverhouse, 813 F.3d at 994, and that claim is that Arpan violated
Third, the district court thought Havens Realty was different because in that case Ms. Coleman had information (the availability of apartments for rent) withheld from her. Ms. Laufer, on the other hand, did not allege that the hotel “kept information from her” and did not claim that she could not have obtained the accessibility information by contacting the hotel by phone. See D.E. 45 at 14. The district court‘s analysis, however, does not account for Ms. Laufer‘s complaint. Ms. Laufer specifically alleged that the hotel‘s own website contained (a) no information about accessible rooms; (b) no information about options to book accessible rooms; (c) no information about accessible or compliant options (e.g., roll-
For standing purposes, then, Ms. Laufer is not different than Ms. Coleman. Indeed, in cases after Havens Realty the Supreme Court has held that the deprivation of information to which one is legally entitled constitutes cognizable injury under Article III. See Public Citizen v. U.S. Dep‘t of Just., 491 U.S. 440, 449 (1989) (“As when an agency denies requests for information under the Freedom of Information Act, refusal to permit appellants to scrutinize the [American Bar Association Standing Committee on Federal Judiciary‘s] activities to the extent [the Federal Advisory Committee Act] allows constitutes a sufficiently distinct injury to provide standing to sue.“); Akins, 524 U.S. at 21 (“The ‘injury in fact’ that
As for the district court‘s observation that Ms. Laufer could “find out everything she wanted by, say, calling [the hotel],” D.E. 45 at 14, that additional burden is precisely what
C
The Fifth Circuit, in a virtually identical Title III ADA case involving Ms. Laufer, rejected her argument that she had suffered informational injury due to hotel websites not having the accessibility information required by
First, it seems difficult to fathom why the accessibility information missing from a hotel‘s websites would need to be relevant to a disabled person who is acting as a tester to ensure compliance with the ADA. After all, Ms. Coleman, the black tester in Havens Realty, had no intention of renting an apartment. The misinformation about apartment availability given to her, then, could not have mattered to her one iota except in her role as a tester to monitor FHA compliance, and yet she had standing. The same is true for Ms. Laufer here.
Like the Fifth Circuit, the Tenth Circuit recently dismissed Ms. Laufer‘s claim in a similar ADA case involving a hotel‘s failure to provide accessible information on its online reservation system. See Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022). Ms. Laufer alleged generally the same claims—that she had suffered discrimination and had been deprived of information she needed to “make meaningful choices for travel.” Id. The Tenth Circuit concluded that Ms. Laufer had not alleged an injury in fact because “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 878.
Although the Tenth Circuit accurately summarized the Supreme Court‘s recent decisions in Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016) and TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021),
The Tenth Circuit in Looper also explained that “Ms. Laufer ha[d] not alleged that she ha[d] any interest in using the information she obtained from the [hotel‘s online reservation system] beyond bringing this lawsuit,” and therefore lacked the necessary “downstream consequences” to establish informational injury. See id. at 881 (quoting TransUnion, 141 S. Ct. at 2214). It concluded that Ms. Laufer‘s reliance on Public Citizen and Akins was misplaced because in those cases—unlike in Ms. Laufer‘s case—the plaintiffs had identified adverse effects. See id. The plaintiffs in Public Citizen and Akins, it reasoned, had “alleged an intent to use the information to participate in the judicial selection and the political process, respectively. Thus, in both cases, the information the plaintiffs sought had some relevance to them.” Id.
That may be an accurate description of Public Citizen and Akins, but the Tenth Circuit failed to articulate what downstream consequences Ms. Coleman had alleged in Havens Realty that would distinguish her from Ms. Laufer here. In fact, the Tenth
The Second Circuit, in a case decided earlier this month, continued the trend set by the Fifth and Tenth Circuits, and held that an ADA tester lacked standing to challenge a hotel‘s failure to provide accessibility information on its online reservation system. See Harty v. West Point Realty, Inc., No. 20-2672, 2022 WL 815685, at *1 (2d Cir. Mar. 18, 2022). The fact that the plaintiff “d[id] not allege anywhere in his complaint that he was using the website to arrange for future travel” made his claim dead on arrival for the Second Circuit. See id. at *4. “Because [the plaintiff] asserted no plans to visit [the hotel] or the surrounding area, he cannot allege that his ability to travel was hampered by [the hotel‘s] website in a way that caused him concrete harm.” Id. Citing the Tenth Circuit‘s decision in Looper, the Second Circuit concluded that the plaintiff had not established informational injury because he had “no interest in using the information.” Id. (internal quotation marks and citation omitted). Unlike the Tenth Circuit—which at least attempted to distinguish Havens Realty—the Second Circuit
D
I‘ll conclude by returning to where I began. And that is an acknowledgement that Havens Realty may be inconsistent with today‘s Article III standing doctrine. Havens Realty rested in part on the notion that injury in fact can exist simply by virtue of the violation of a statutory right. See 455 U.S. at 373–74. I happen to think that approach is generally correct, see Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 970–85 (11th Cir. 2020) (en banc) (Jordan, J., dissenting), but the Supreme Court‘s recent standing cases seem to be going in a different direction.
In Spokeo, 578 U.S. at 341, the Court explained that the violation of a statutory right does not automatically establish a cognizable injury under Article III. And just last year, the Court reaffirmed that point in TransUnion, 141 S. Ct. at 2205. Moreover, the Court now requires an injury to be both concrete and particularized, see, e.g., Spokeo, 578 U.S. at 340, and it is not apparent that Havens Realty, which was decided in 1972, was so specific about
I realize that we must try to apply and harmonize the old with the new. One possible way out is to read Havens Realty as a case in which the deprivation of information also resulted in stigmatic harm, and that such harm is the downstream consequence of informational injury. But that recharacterization of Havens Realty is not problematic for Ms. Laufer. If resulting stigmatic harm is the necessary adverse (and downstream) consequence of informational injury, Ms. Laufer‘s “frustration and humiliation“—which was caused by the hotel‘s failure to provide accessibility information—suffices. Indeed, as we hold today, Ms. Laufer has sufficiently alleged stigmatic harm.
IV
I agree with the majority that Ms. Laufer has Article III standing for her Title III ADA claim based on the stigmatic injury she has alleged.
I also think Ms. Laufer has standing as a tester for her Title III ADA claim based on the informational injury she suffered due to the websites not having the information required by
This is a sequel of sorts to my concurring opinion in Sierra v. City of Hallandale Beach, 996 F.3d 1110 (11th Cir. 2021). There, I wrote separately to express my “doubt[s]” about “current standing doctrine” and to “propose a different way of thinking about things, in two parts.” Id. at 1115 (Newsom, J., concurring). “First,” drawing on the original understanding and early application of the term, I explained my view that “a ‘Case’ exists within the meaning of Article III, and a plaintiff thus has what we have come to call ‘standing,’ whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury.” Id. “Second, however“—and I called it “a considerable ‘however‘“—I explained my view that “Article II‘s vesting of the ‘executive Power’ in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large.” Id.
This case—which involves a self-avowed “tester” plaintiff who alleges her own discrimination-based “stigmatic” injury but who, by her own admission, principally seeks to advance the rights of disabled people generally—implicates both of the issues that I flagged in Sierra. First, it illustrates my point that the Supreme Court‘s current “history-and-judgment-of-Congress” standard for assessing Article III “injury in fact“—which the Court initially articulated in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and then reiterated in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021)—“has
Let me take those two points in turn.
I
A
In Spokeo, the Supreme Court reiterated that “[t]o establish injury in fact“—the first of three key Article III standing elements, along with causation and redressability—a plaintiff must show that she “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” 578 U.S. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The Court then proceeded to unpack the injury-in-fact element‘s particularization and concreteness components.
Concrete injuries, the Court clarified, needn‘t necessarily be “tangible“; rather, “intangible injuries can . . . be concrete.” Id. at 340. Importantly for our purposes, the Court then went on to prescribe what has since become a familiar two-part standard for identifying cognizable “intangible” injuries: “In determining whether
With a tweak or two, the Supreme Court repeated Spokeo‘s two-part history-and-judgment-of-Congress standard last Term in TransUnion. As for history, in particular, the Court said that the determinative question is “whether the alleged injury to the plaintiff has a ‘close relationship’ to a harm ‘traditionally’ recognized as a basis for a lawsuit in American courts.” 141 S. Ct. at 2204. “That inquiry,” the TransUnion Court explained, in turn “asks whether plaintiffs have identified a close histоrical or common-law analogue for their asserted injury.” Id. Separately, the Court echoed Spokeo‘s recognition that “Congress‘s views may be ‘instructive‘” and reiterated that courts should therefore “afford due respect to Congress‘s decision to impose a statutory prohibition or obligation on a defendant, and to grant a plaintiff a cause of action to sue over
From the very outset, though, the Supreme Court seems to have carved out sui generis exceptions to the history-and-judgment-of-Congress metastructure. In Spokeo, for instance, the Court pointed to a pair of decisions concerning “free speech” and “free exercise“—Pleasant Grove City v. Summum, 555 U.S. 460 (2009), and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), respectively—as exemplary of “previous cases [confirming] that intangible injuries can nevertheless be concrete.” 578 U.S. at 340. In TransUnion, the Court referred back to Spokeo—and in particular to Spokeo‘s citations to Pleasant Grove and Lukumi—to suggest that Article-III-qualifying intangible harms “may” also “include harms specified by the Constitution itself.” 141 S. Ct. at 2204. Although it‘s not entirely clear—there‘s only so much one can discern from the Court‘s tentative language and its use (in both Spokeo and TransUnion) of the hazy “See, e.g.” signal—the Court appears to have meant for Pleasant Grove and Lukumi to stand in for decisions concerning constitutional harms more generally.
The Court‘s recognition that violations of constitutional rights can give rise to Article-III-qualifying intangible injuries seems both (1) obviously correct and (2) at the same time, tough to situate within the two-part history-and-judgment-of-Congress standard. By their very nature, constitutional rights have little to do with—and exist independently of—congressional sanction, so the “judgment of Congress” prong of the Spokeo-TransUnion standard
Which, in a way, brings us to the discrimination-based “stigmatic” harm that Deborah Laufer alleges here. In a pair of decisions issued nearly 40 years ago now, the Supreme Court recognized that discrimination could give rise to a “stigmatic injury” sufficient to confer Article III standing. First, in Heckler v. Mathews, 465 U.S. 728 (1984), the Court considered a man‘s challenge to a Social Security Administration policy that would have reduced his pension benefits but not those of similarly situated women. Id. at 735. The Court held that the man‘s “standing [did] not depend on his ability to obtain increased Social Security payments,” because “the right to equal treatment guaranteed by the Constitution is not coextensive with any substantive rights to the benefits denied the party discriminated against.” Id. at 737, 739. Rather, the Court said, “discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those
Later the same year, the Court held that a group of black parents lacked standing to challenge the constitutionality of tax exemptions that the IRS had granted to racially discriminatory private schools because, the Court said, the parents hadn‘t “personally [been] denied equal treatment.” Allen v. Wright, 468 U.S. 737, 755 (1984) (quoting Heckler, 465 U.S. at 740). Importantly, though, the Court cited Heckler for the proposition that the parents’ “stigmatic injury, though not sufficient for standing in the abstract form in which their complaint assert[ed] it, is judicially cognizable to the extent that [they] are personally subject to discriminatory treatment.” Id. at 757 n.22 (citing Heckler, 465 U.S. at 739–40).
Where does Heckler-Allen-style “stigmatic injury” fit within the Court‘s current history-and-judgment-of-Congress framework? Unclear. Neither Spokeo nor TransUnion purports to overrule, or even limit, Heckler or Allen. TransUnion, to the contrary, specifically cites Allen with approval. But the way in which it does so leaves me confused about stigmatic injury‘s place—and by extension, the place of constitutional rights more generally—in the Spokeo-TransUnion schema. In particular, the TransUnion Court cited Allen—using a “cf., e.g.” signal and appending the sparse explanatory parenthetical “(discriminatory treatment)“—in support of the proposition that Congress can “elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously
First, TransUnion‘s “cf., e.g.” citation to Allen seems to suggest that the Court thinks of stigmatic harm as the sort of “concrete, de facto injur[y] that w[as] previously inadequate at law” but that Congress can “elevate” to “legally cognizable” status. Id. But both Heckler and Allen focused on the constitutional right to equal protection. Neither involved an antidiscrimination statute, and thus neither would appear to have anything to do with what Spokeo called the “judgment of Congress.” Rather, it would seem that the sort of stigmatic injury that the Court recognized as sufficient in Heckler and Allen falls—like free-speech and free-exercise injuries—into some (stand-alone?) category of “constitutional” harm that, as I‘ve said, just doesn‘t fit very neatly into the Spokeo-TransUnion framework. Where that leaves stigmatic injuries resulting from discrimination in violation of federal statutes—like Laufer‘s alleged ADA injury here—I have no idea. Perhaps statutory stigmatic injuries reside in the judgment-of-Congress element of the Spokeo-TransUnion two-part standard, while constitutional stigmatic injuries exist as part of the history element or as a sui generis exception to that standard. I‘m just not sure.
Second—and more importantly for present purposes—what exactly counts as a concrete stigmatic injury? Is any discrimination, however the courts might independently define it, enough? Given
Lots of questions—and not many answers. The majority opinion in this case reflects our best effort to apply Sierra’s binding precedent in light of TransUnion, Allen, and Heckler, but I suspect that the law concerning “stigmatic injury” will remain deeply
B
Before turning to
There is an alternative approach that takes Framing-era history equally seriously but that formulates the issue more granularly. On that view, only the particular common-law causes of action that existed at the time of the Founding can serve as valid analogues for modern-day
What I don’t get is the TransUnion Court’s compromise position, according to which the term “Case” includes post-Founding common-law causes of action, like the relatively modern privacy torts that the Court featured as exemplars, but doesn’t include new statutory causes of action—unless, that is, they happen to reflect what reviewing courts independently deem to be preexisting “concrete” injuries. If anything, the Court’s approach seems to get things exactly backwards. Under it, state courts—taking their cue from law professors—are empowered to create new causes of action sufficient to confer
II
A
On, then, to
As I explained, the quintessential example of a suit that ran afoul of
The Supreme Court, of course, decided the case on
I concede that Laufer’s suit doesn’t present exactly the same separation-of-powers problems that Lujan did—she is not, for instance, seeking to commandeer an Executive Branch agency and compel it to regulate in a particular manner. Even so, I think her suit poses similar problems, and I think it ultimately crosses the constitutional line. Let me try to explain why.
B
Laufer is no ordinary litigant, and her suit is no ordinary civil action. Laufer is loudly, proudly, and self-avowedly a “tester” plaintiff. See Br. of Appellant at 2; see also Reply Br. of Appellant at 1 (“tester[]”); Complaint at 3 (“tester”). What do I mean—what does she mean—by that label? In Havens Realty Corp. v. Coleman, a case involving housing discrimination, the Supreme Court described tester plaintiffs this way: “In the present context, ‘testers’ are individuals who, without an intent to rent or purchase a home or apartment, pose as renters for the purpose of collecting evidence of unlawful [discriminatory] practices.” 455 U.S. 363, 373 (1982). That definition fits Laufer to a T. She brought her lawsuit pursuant to—and in an effort to vindicate the rights created under—
Now to be sure, Laufer claims to have suffered personal injuries as a result of viewing the hotel’s websites that omit accessibility-related information—as already noted, she alleges a discrimination-based “stigmatic” injury that she says was accompanied by feelings of “frustration and humiliation.” Complaint at 9. More prominently though—and to her credit, she’s very transparent about this—Laufer views herself as an “advocate of the rights of similarly situated disabled persons.” Complaint at 3; see also Br. of Appellant at 2. In that capacity, she explained, she views hundreds
Laufer isn’t bashful about any of this. In her brief to us, she candidly proclaimed that ADA enforcement depends on “a small number of private plaintiffs who view themselves as champions for the disabled” and that “[f]or the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.” Br. of Appellant at 26 (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007)). Without apology, Laufer
Laufer is therefore technically wearing two hats. On the one hand, to employ descriptors that I used in Sierra, she is suing to “vindicate [her] own rights and . . . seek[ing] remedies that will accrue to [her] personally”—which is of course perfectly appropriate. 996 F.3d at 1136. On the other hand, she is also—and I think it’s fair to say, more prominently—suing “on behalf of the community and seek[ing] a remedy that accrues to the public”—which I posited would implicate
For starters, it seems clear to me that not every plaintiff who seeks relief that will redress her private injuries but that may also benefit the public risks violating
Let me try to unpack the TransUnion Court’s brief discussion of executive enforcement discretion, by reference to both modern doctrine and Framing-era history. To start with the former, we recently summarized that “[t]he Supreme Court has repeatedly reaffirmed the principle—which dates back centuries—that ‘the Executive Branch has exclusive authority and absolute
As best I can tell, modern
This country’s Framers likewise “saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty.” Aiken County, 725 F.3d at 264 (opinion of Kavanaugh, J.). Perhaps most famously, Madison wrote in
Let us suppose the legislative and executive powers united in the same person: can liberty or security be expected? No. . . . May [that person] not then—and, if he may, will he not then . . . enact tyrannical laws to furnish himself with an opportunity of executing them in a tyrannical manner?
1 Collected Works of James Wilson 705 (Liberty Fund ed., 2007).
As Professor Zachary Price has explained in a thorough treatment of the subject, the Framers’ general concerns about dividing the law-making and law-enforcing powers “presume,” more particularly, “that enforcement discretion is a proper aspect of the executive function.” Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 701 (2014) (emphasis added). The reason: “Were the President obliged to enforce congressional statutes to the hilt, the separation of executive and legislative functions would do nothing to moderate tyrannical laws.” Id. at 701–02. “The separation of legislative and executive functions helрs prevent tyranny precisely because a discretionary decision by
One powerful piece of evidence regarding this connection—between dividing power as a means of avoiding tyranny in general and the exercise of case-by-case enforcement discretion in particular—comes from a speech that future Chief Justice John Marshall made on the floor of Congress while serving in the House of Representatives. In it, Marshall defended President Adams’s handling of two cases involving allegedly mutinous sailors—one of whom Adams chose to extradite to England, the other of whom he opted not to prosecute: “If judgment of death [in a criminal case] is to be pronounced,” Marshall said, “it must be at the prosecution of the nation, and the nation may at will stop that prosecution.” 10 Annals of Cong. 615 (1800). Importantly for our purposes, Marshall then explained that “[i]n this respect the President expresses constitutionally the will of the nation” and in so doing “may rightfully . . . enter a nolle prosequi, or direct that the criminal be prosecuted no farther.” Id. “This,” Marshall concluded, “is the exercise of an indubitable and a Constitutional power.” Id. In his speech, Marshall thereby “articulated, in strikingly modern terms, the normative theory that the President, as the constitutional representative of ‘the nation,’ may decide which criminal violations to pursue and which to ignore.” Price, Enforcement Discretion, at 702–03. “Even more clearly than Madison, Montesquieu, or Blackstone, Marshall asserted that the executive function entails exercising
Rounding out the story, it seems clear that the Framers’ understanding—that as a protection against tyrannical government Executive Branch officials were vested with substantial discretion in deciding how and to what extent to enforce federal law in particular instances—carried over into actual practice: “[F]ederal prosecutors and other executive officials claimed from the beginning authority to decline enforcement of federal statutes in particular cases—an important indication that the executive role has always been understood to entail such authority.” Price, Enforcement Discretion, at 676. Professor Price has compiled substantial evidence, for instance, (1) that early administrations “terminated roughly a third of federal prosecutions between 1801 and 1829” via writs of nolle prosequi, see id. at 724 (citing Statement of Convictions, Executions, and Pardons, H.R. Doc. No. 20-146 (Feb. 26, 1829)); (2) that in 1821 the Attorney General formally opined that “‘[t]here can be no doubt of the power of the President to order a
C
If, as I think the evidence bears out, enforcement discretion is part and parcel of the “executive Power” vested by
D
Which brings us back to Laufer. Do tester plaintiffs like Laufer proactively exercise law-enforcement discretion in a way that implicates—and may actually violate—
First, and most prominently, a tester like Laufer exercises executive-style enforcement discretion by freely choosing how
Second, and relatedly, a tester like Laufer investigates her targets first and then selects from among them which to pursue. During oral argument, for instance, Laufer’s attorney announced that “we”—by which he presumably meant Laufer, Kennedy, and the other lawyers in his firm—“do strictly online reservation cases.” Oral Arg. at 17:11–17:18. His statement speaks volumes about how tester plaintiffs and their lawyers proactively exercise executive enforcement discretion. Just as Laufer and her attorneys only prosecute “online reservation cases,” they could just as easily exercise enforcement discretion in other ways or to other ends. For instance, they could opt to prioritize large chain establishments or hotels in a particular region of the country. They could even single out a particular hotel or brand that they view as recalcitrant. Alternatively, they could target noncompliance with an altogether different ADA provision or regulation. They could opt to go easy on a hotel that has fallen on hard times or, more perniciously, target small mom-and-pop establishments that lack the resources to fight back. Worst of all, a tester or her lawyers could (at least theoretically) choose among enforcement targets based on arbitrary or discriminatory factors that Executive Branch officials, bound by constitutional and legal strictures, would be barred from considering. See, e.g., Grove, Standing as Nondelegation, at 798. I don’t mean to suggest that Laufer and her attorneys have engaged in these
Executive Branch officials make these sorts of discretionary enforcement judgments every day. In doing so, they carry out the Framers’ design and check the ambition of potentially overzealous legislators. And for their choices, they are accountable—both politically, to the voters, and legally, to the Constitution. Unaccountable private parties (and their fee-conscious lawyers) have no incentive to play that role. By making enforcement decisions that are not only different from those that Executive Branch officials might make but are also unchecked by the sorts of political and legal constraints that bind government enforcers, private parties may actually exacerbate the risk of arbitrary power.5
* * *
To sum up, a plaintiff’s suit implicates (and may well violate)
I concur in the majority opinion, which holds that Laufer has properly alleged stigmatic injury but correctly states that its holding “does not prevent the district court from inquiring on remand into the jurisdictional facts underlying Laufer’s alleged injury.” Maj. Op. at 5–6 n.2. Not only is the district court free to inquire into the jurisdictional facts, it has a duty to do so. See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[C]ourts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”); ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d 1337, 1340 (11th Cir. 2017) (noting that a court has an obligation to inquire into its jurisdiction any time it may be lacking).
Plaintiffs may make factual allegations about a court’s jurisdiction to decide their lawsuits, but they do not make factual findings about it. Courts do. That is why there is a difference in the procedures used to decide facial and factual questions about jurisdiction. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (“Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.”) (cleaned up).
The factual issue relevant to jurisdiction is whether Laufer’s inability to obtain from the hotel’s website the information she wanted caused her to suffer emotional distress in the form of humiliation, frustration, and a sense of isolation and segregation, which she otherwise would not have suffered. Laufer filed an affidavit averring that she did suffer those kinds of emotional distress because she could not obtain from the website information, which she does not contend would ever be of the slightest practical value to her personally. It is unlikely that at a hearing on the issue there will be any witnesses refuting Laufer’s own testimony about how
Still, that is not the end of the matter. It isn’t because, as we have held many times, a district court is not bound to accept as true a party or other witness’ testimony even if it is unrefuted. See, e.g., Hawk v. Olson, 326 U.S. 271, 279 (1945) (“This, of course, does not mean that uncontradicted evidence of a witness must be accepted as true on the hearing. Credibility is for the trier of facts.”); Negron v. City of Miami Beach, 113 F.3d 1563, 1570 (11th Cir. 1997) (noting that the “district court as factfinder was free to reject” a witness’ “testimony, even if it was uncontradicted”); Burston v. Caldwell, 506 F.2d 24, 26 (5th Cir. 1975) (“The district court, of course, was not rеquired to accept his testimony, even if uncontradicted.”); Tyler v. Beto, 391 F.2d 993, 995 (5th Cir. 1968) (“Credibility is for the trier of the facts and the uncontradicted testimony of a witness does not have to be accepted.”); Slater v. U. S. Steel Corp., 871 F.3d 1174, 1190–91 (11th Cir. 2017) (Carnes, J., concurring) (noting that the reason a district court need not accept a party’s testimony even if it is not contradicted by other evidence is that a court “has the authority and responsibility to find the facts and not to blindly accept testimony”).
Were it otherwise, a plaintiff in this kind of case could always establish injury by testifying that she suffered in ways that only she could possibly know or have witnessed. The injury in fact requirement of standing is not that much of a pushover.