Case Information
*2 Bеfore J ORDAN , N EWSOM , and E D C ARNES , Circuit Judges. , Circuit Judge:
Another day, another standing case. In this iteration, we
have to decide whether an ADA plaintiff suffered a “concrete” in-
jury 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 ap-
ply sometimes dissonant standing precedents. But in the final anal-
ysis, 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,
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 im- paired. See 42 U.S.C. § 12102(1)(A). She is a self-described advo- cate for disabled people’s rights and a “tester” who monitors whether places of public accommodation and their websites com- ply with the ADA. In 2019, in the Northern District of Florida Opinion of the Court alone, Laufer filed more than 50 ADA lawsuits against hotel own- ers. Arpan, LLC, the owner of America’s Best Value Inn in Mari- anna, Florida, maintains an online reservation system that Laufer says violates the ADA and its implementing regulations.
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, ad- vantages, or accommodations of any place of public accommoda- tion.” 42 U.S.C. § 12182(a). In particular, the Act prohibits afford- ing disabled persons an unequal ability to participate in or benefit from a service or accommodation, id. § 12182(b)(1)(A)(ii), and fail- ing to make “reasonable modifications in policies, practices, or pro- cedures” when “necessary” to ensure such participation, id. § 12182(b)(2)(A)(ii). The ADA provides a cause of action for аny person “aggrieved” by a violation of the statute, see id. §§ 2000a- 3(a), 12188(a)(1) (noting that § 2000a-3(a) applies to those “being subjected to discrimination on the basis of disability” or who have “reasonable grounds for believing” that they are “about to be sub- jected to discrimination”), and directs the Attorney General to promulgate regulations to carry out the Act’s provisions, id. § 12186(b).
One of those regulations applies to hotel owners and opera- tors, and governs “reservations made by any means, including by telephone, in-person, or through a third party.” 28 C.F.R. § 36.302(e). As particularly relevant here, the regulation requires hotels to “[m]odify [their] policies, practices, or procedures to Opinion of the Court ensure that individuals with disabilities can make reservations for accessible guest rooms . . . in the same manner as individuals who do not need accessible rooms.” Id. § 36.302(e)(1)(i). More particu- larly still, it requires hotel owners to “[i]dentify and describe acces- sible features in the hotels and guest rooms offered through [their] reservations service[s] in enough detail to reasonably permit indi- viduals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” Id. § 36.302(e)(1)(ii). Like the ADA itself, the Act’s implementing reg- ulations provide (or at least purport to provide) a private cause of action for anyone subjected to discrimination in violation of one of their provisions. Id. § 36.501(a).
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 vis- ited these websites to test them for compliance with the regula- tions and to assess the hotel’s accessibility features. She alleges that she has suffered and continues to suffer “frustration and humilia- tion 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 Opinion of the Court in the future, but she admits that she has no intention to visit the Value Inn or the area in which it’s located. 1
Laufer filed a complaint seeking a declaratory judgment, in- junctive 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 be- cause 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 cor- rectly concluded that Laufer suffered no concrete and particular- ized injury and therefore lacked standing to sue. Our precedents compel us to vacate and remand. 2
Opinion of the Court
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,
“particularized” injury is one that “affect[s] the plaintiff in a per-
sonal and individual way.” Lujan,
The principal question before us is whether Laufer has suf-
fered 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,
First things first: Laufer’s alleged injury—her inability to ac-
cess certain information on a hotel’s website and her resulting emo-
tional disquiet—bears no “close relationship” to any traditional
common-law cause of action. To be sure, Laufer alleges
Opinion of the Court
“frustration and humiliation.” But neither intentional nor negli-
gent infliction of emotional distress is a sufficiently close analogue.
No one contends that Laufer was subject to the kind of “extreme
and outrageous” intentional or reckless conduct that intentional in-
fliction entails. See Bartholomew v. AGL Res., Inc.,
Despite the absence of a close common-law comparator, we
conclude that under existing precedent—both our own and the Su-
preme 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 re-
fused to provide closed captioning.
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 in- jury exists whenever an individual experiences illegal discrimina- tion, regardless of whether she suffers any discernible adverse ef- fects. 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 treat- ment “under the ADA and the Rehabilitation Act.” Id. Needless to say, Laufer would have standing under this broad reading of Si- erra because she alleges that she personally experienced discrimi- nation 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
Opinion of the Court
court “cannot treat an injury as ‘concrete’ for Article III purposes
based only on Congress’s say-so,” that Congress can’t “transform
something that is not remotely harmful into something that is,”
and, accordingly, that “Congress’s creation of a statutory prohibi-
tion or obligation and a cause of action does not relieve courts of
their responsibility to independently decide whether a plaintiff has
suffered a concrete harm under Article III.”
But there is a narrower reading of Sierra that, we conclude,
survives TransUnion. We observed there that the plaintiff’s allega-
tions 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.”
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
Opinion of the Court
segregation,” she has adequately pleaded a concrete stigmatic in-
jury. 5 And because her emotional injury is her emotional injury, it
affects her “in a personal and individual way” and is therefore suf-
ficiently particularized. Lujan,
III
The upshot: Insofar as the district court dismissed Laufer’s case on the ground that she failed to adequately allege a concrete and pаrticularized injury, it erred. Under existing precedent, Lau- fer’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.
Opinion of the Court
Floridian Hotel, Inc.,
VACATED and REMANDED. J ORDAN J ORDAN , Circuit Judge, concurring:
There are 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 im- pulse—the instinct, if you will—is to discard the tattered old in fa- vor of the shiny new. But the Supreme Court has told us on nu- merous 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 rec- ognize 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 deci- sions, 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 Ha-
vens Realty Corp. v. Coleman,
I
Title III of the Americans with Disabilities Act provides that “[n]o individual shall be discriminated against on the basis of disa- bility in the full and equal enjoyment of the goods, services, facili- ties, 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.” 42 U.S.C. § 12182(a). Ms. Laufer, who is a resident of Alachua County, Florida, and is physically disabled under the ADA, 42 U.S.C. § 12102(1)(A), is a self-described advocate for the rights of disabled persons. She is a tester who monitors whether places of public accommodation and their websites comply with the ADA.
In 2019, Ms. Laufer filed an ADA lawsuit against Arpan, LLC, which operates a hotel in Jackson County, Florida. She al- leged 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 28 C.F.R. § 36.302(e)(1), one of the regulations promulgated by the Department of Justice to implement the ADA. As a result, she claims she was unable to determine whether the hotel was accessible. For example, the hotel’s own website had no reference to accessible rooms and no option to book an accessible room. The website also lacked information about whether the ho- tel offered ADA-compliant or accessible features like roll-in show- ers, tubs, built-in seating, commodes, grab bars, sinks, wrapped pipes, sink and door hardware, etc. J ORDAN
Ms. Laufer intends to revisit the hotel’s website and the third-party websites in the near future to test them for compliance with § 36.302(e)(1), and/or to reserve a guest room and otherwise avail herself of the goods, services, facilities, benefits, and accom- modations of the hotel. She is aware that the websites remain non- compliant with the ADA and it would be a “futile gesture” for her to revisit them as long as the violations exist “unless she is willing to suffer additional discrimination.” The ADA violations at the websites “infringe [her] right to travel free of discrimination and deprive her of the information required to make meaningful choices for travel.” [1]
II
As relevant here, 28 C.F.R. § 36.302(e)(1)(ii) provides that a “public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means . . . [i]dentify and describe accessible features in the hotels and guest rooms offered through its reservation service in enough detail to reasonably permit individuals with disabilities to assess in- dependently whether a given hotel or guest room meets his or her accessibility needs[.]” In plain English, § 36.302(e)(ii) requires hotel websites to contain and disclose certain information about J ORDAN “accessible features.” Ms. Laufer alleged that the hotel’s website and the third-party websites deprived her (and continue to deprive her) of the information required by this regulation.
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 § 36.302(e)(1)(ii) and that she will succeed on that
claim. See, e.g., Warth v. Seldin,
III
Ms. Laufer is an ADA tester who alleges that when she vis- ited the hotel’s website and third-party websites, she was denied J ORDAN information required by federal law (i.e., § 36.302(e)(1)(ii)). But given that she has no intention of visiting the hotel, or the area in which it is located, does she have Article III standing to sue Arpan under the ADA for the websites’ alleged violations? More specifi- cally, has Ms. Laufer suffered a cognizable injury under Article III? The answer, I think, is yes under Havens Realty.
A
Havens Realty involved a “racial steering” claim under the
Fair Housing Act of 1968, 42 U.S.C. § 3604. The plaintiffs—three
individuals and one organization—sought “declaratory, injunctive,
and monetary relief.” Havens Realty,
The district court in Havens Realty dismissed the claims of the tester plaintiffs (as well as those of the organization) for lack of J ORDAN standing, but the Fourth Circuit reversed. The Supreme Court granted certiorari to address the plaintiffs’ standing.
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 pur- chase a home or apartment, pose[s] as [a] renter[ ] or purchaser[ ] for the purpose of collecting evidence of unlawful steering prac- tices.” Id. at 373. First, the Supreme Court noted that § 3604(d) of the FHA made it unlawful to “represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available,” and that this prohibition was “enforceable through the creation of an explicit cause of action” in § 3612(a) of the FHA. See id. (internal quotation marks omitted). Second, explaining that the injury required by Article III may exist “solely by virtue” of stat- utes creating legal rights, the Court held that a “tester who has been the object of a misrepresentation made unlawful under [§ 3604(d)] has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the [FHA’s] provisions.” Id. at 373–74. Third, the Court rejected the notion that the lack of interest in rent- ing an apartment diminished Ms. Coleman’s standing as a tester: “That the tester may have approached the real estate agent fully expecting that [s]he would receive false information, and without any intention of buying or renting a home, does not negate the simple fact of injury within the meaning of [§ 3604(d)].” Id. at 374. J ORDAN Fourth, turning to Ms. Coleman’s situation, the Court reasoned that she “alleged injury to her statutorily created right to truthful housing information. As part of the complaint, she averred that [Havens Realty] told her on four different occasions that apart- ments were not available in the . . . complexes while informing white testers that apartments were available. If the facts are as al- lеged, then [Ms. Coleman] has suffered ‘specific injury’ from the challenged acts . . . and the Art[icle] III requirement of injury in fact is satisfied.” Id. Later in the opinion, the Court confirmed that “the injury underlying tester standing” was “the denial of the tester’s own statutory right to truthful housing information caused by mis- representations to the tester[.]” Id. at 375. [2]
In Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013), we applied Havens Realty to permit tester stand- ing 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 is- sue in Havens Realty. See id. at 1332–33. Here’s how we phrased our holding:
J ORDAN We hold that . . . Houston’s tester motive behind his visits to the Presidente Supermarket does not fore- close standing for his claim under 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iv), and 12188(a)(1) of Title III. By the same token, we conclude that “bona fide patron” status is not a prerequisite for Houston to ob- tain standing for a lawsuit under these statutory pro- visions. Stated differently, the alleged violations of Houston’s statutory rights under Title III may consti- tute an injury-in-fact, even though he is a mere tester of ADA compliance.
Id. at 1334. We also explained that “this conclusion alone is
not enough. Because . . . Houston seeks injunctive relief, he must
also show a real and immediate threat of future injury.” Id. Exam-
ining the totality of the circumstances, we concluded that the nec-
essary showing had been made. See id. at 1335–37. Finally, we
rejected the defendant's argument that standing would be incon-
sistent with Lujan v. Defenders of Wildlife,
J ORDAN
B
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 rea-
soned 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 prec-
edential effect. The Supreme Court has made that clear, and so
have we. See Com. of Mass. v. United States,
The result would be that no one would know which of the two standing determinations counted as precedent.
Second, the district court concluded that, unlike Ms. Cole- man—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 stand- ing 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 § 36.302(e)(1)(ii) because the websites at issue did not have the information required by the regulation. In other words, Ms. Laufer is asserting that § 36.302(e)(1)(ii), a regulation that implements the ADA, creates a substantive right to have certain information disclosed. In reject- ing this claim, the district court conflated standing with the merits.
Third, the district court thought Havens Realty was differ- ent because in that case Ms. Coleman had information (the availa- bility of apartments for rent) withheld from her. Ms. Laufer, on the other hand, did not аllege that the hotel “kept information from her” and did not claim that she could not have obtained the acces- sibility 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 ho- tel’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- J ORDAN in showers, tubs, built in seating, commodes, grab bars, compliant doors, furniture, controls, and operating mechanisms); (d) no in- formation about whether the goods, facilities, and services of the hotel are connected by an accessible route; (e) no information about where accessible rooms (if they exist) are located; (f) no in- formation about whether an elevator is provided within an acces- sible route; and (g) no information about whether the hotel’s amenities (outdoor swimming pool, spa tub, laundry facilities, free self-parking) are accessible. See Complaint at ¶ 11. If a person is entitled under federal law to information on topics X, Y, and Z, and no information is provided, that information has been kept or with- held from the person. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998) (citing to Havens Realty with a parenthetical explain- ing that “deprivation of information about housing availability con- stitutes ‘specific injury’ permitting standing”).
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.,
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 § 36.302(e)(1)(ii) is designed to avoid. The regulation specifically provides that dis- abled individuals should be able to “make reservations for accessi- ble guest rooms…in the same manner as individuals who do not need accessible rooms.” § 36.302(e)(1)(ii) (emphasis added). Under the district court’s logic, Ms. Coleman (the black tester in Havens Realty) could similarly have found out whether apartments were available by physically going to the apartment complexes and ask- ing around rather than consulting with the company’s employees. It was not Congress’ intention in enacting the FHA to require indi- viduals to expend extra energy to acquire accurate information that J ORDAN they are legally entitled to. I do not believe that the ADA is any different.
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 accessi- bility information required by § 36.302(e)(1)(ii). It reasoned (1) that Ms. Laufer had not shown that the missing information was rele- vant to her, and (2) that Havens Realty was distinguishable because the information there “had ‘some relevance’ to the tester, . . . be- cause the statute forbade misrepresenting it to ‘any person,’ quite apart from whether the tester needed it for some other purpose.” Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir. 2021). This case supports the district court’s ruling, but I think it is wrong on various fronts.
First, it seems difficult to fathom why the accessibility infor- mation 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 misinfor- mation about apartment availability given to her, then, could not have mattered to her one iota except in her role as a tester to mon- itor FHA compliance, and yet she had standing. The same is true for Ms. Laufer here. J ORDAN
Second, the Fifth Circuit sought to distinguish Havens Re-
alty on the ground that the information in that case was relevant.
The reason the Fifth Circuit gave is that the FHA prohibited mak-
ing a misrepresentation to “any person.” But that is just wrong,
and in any event contrary to our precedent. The ADA’s anti-dis-
crimination provision states that “[n]o individual shall be discrimi-
nated against on the basis of disability,” 42 U.S.C. § 12182(a), and
when it comes to prohibited activities, “no individual” is the same
as “any person.” That is, in fact, what we said in Houston, where
we characterized the language of the FHA and Title III of the ADA
as “similar”: “[I]f anything, ‘no individual’ and ‘any person’ are
broad terms that necessarily encompass testers.”
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,
Although the Tenth Circuit accurately summarized the Su-
preme Court’s recent decisions in Spokeo, Inc. v. Robins, 578 U.S.
330, 341 (2016) and TransUnion LLC v. Ramirez,
The Tenth Circuit in Looper also explained that “Ms. Laufer
ha[d] not alleged that she ha[d] any interest in using the infor-
mation 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,
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 J ORDAN Circuit was completely silent about the application of downstream consequences to Havens Realty. The reason, I suggest, is that there were no downstream consequences in Havens Realty. Ms. Cole- man had no intention of renting an apartment and therefore the misinformation she received had absolutely no relevance to her be- yond ensuring compliance with the FHA. If Ms. Coleman did not need to allege downstream consequences in order to establish in- jury, it is hard for me to imagine why Ms. Laufer would need to do so.
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,
D
I’ll conclude by returning to where I began. And that is an
acknowledgement that Havens Realty may be inconsistent with to-
day’s Article III standing doctrine. Havens Realty rested in part on
the notion that injury in fact can exist simply by virtue of the viola-
tion of a statutory right. See
In Spokeo,
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 stig- matic harm, and that such harm is the downstream consequence of informational injury. But that recharacterization of Havens Re- alty is not problematic for Ms. Laufer. If resulting stigmatic harm is the necessary adverse (and downstream) consequence of infor- mational injury, Ms. Laufer’s “frustration and humiliation”— which was caused by the hotel’s failure to provide accessibility in- formation—suffices. Indeed, as we hold today, Ms. Laufer has suf- ficiently 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 28 C.F.R. § 36.302(e)(ii). Havens Realty remains binding on us as a lower fed- eral court until the Supreme Court overrules it (or explains what is J ORDAN left of it), particularly given that we applied its tester standing ra- tionale to Title III of the ADA in Houston. Havens Realty may be endangered, but it is not yet extinct, and I believe it governs here. N EWSOM , Circuit Judge, concurring:
This is a sequel of sorts to my concurring opinion in Sierra
v. City of Hallandale Beach,
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 artic-
ulated in Spokeo, Inc. v. Robins,
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 conjec-
tural or hypothetical.’”
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 pre- scribe what has since become a familiar two-part standard for iden- tifying cognizable “intangible” injuries: “In determining whether an intangible harm constitutes injury in fact, both [1] history and [2] the judgment of Congress play important roles.” Id. With re- spect to the first criterion, the Court said that “[b]ecause the doc- trine of standing derives from [Article III’s] case-or-controversy re- quirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has tradi- tionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. at 340–41. And with respect to the second criterion, the Court acknowledged that “Congress is well posi- tioned to identify intangible harms that meet minimum Article III requirements,” and, accordingly, said that “its judgment is also in- structive and important.” Id. at 341.
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 plain-
tiff has a ‘close relationship’ to a harm ‘traditionally’ recognized as
a basis for a lawsuit in American courts.”
From the very оutset, though, the Supreme Court seems to
have carved out sui generis exceptions to the history-and-judg-
ment-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 [confirm-
ing] 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 “in-
clude harms specified by the Constitution itself.”
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 “judg- ment of Congress” prong of the Spokeo-TransUnion standard would seem to be largely inapposite. And while constitutional rights are most assuredly “histor[ical]”—or to use the TransUnion Court’s term, “traditional”—they don’t necessarily have precise “common-law analogues” of the sort that courts have emphasized in the wake of Spokeo and TransUnion. TransUnion, 141 S. Ct. at 2204. In any event, it’s still not altogether clear—to me, anyway— whether the Supreme Court meant to envelop some (or all?) con- stitutional harms within the “history” prong of its two-part test or whether, instead, those harms just exist outside that test altogether.
Which, in a way, brings us to the discrimination-based “stig-
matic” harm that Deborah Laufer alleges here. In a pair of deci-
sions issued nearly 40 years ago now, the Supreme Court recog-
nized that discrimination could give rise to a “stigmatic injury” suf-
ficient to confer Article III standing. First, in Heckler v. Mathews,
the Court considered a man’s challenge to a Social Security Admin-
istration policy that would have reduced his pension benefits but
not those of similarly situated women.
Later the same year, the Court held that a group of black
parents lacked standing to challenge the constitutionality of tax ex-
emptions 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,
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, specifi-
cally cites Allen with approval. But the way in which it does so
leaves me confused about stigmatic injury’s place—and by exten-
sion, 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 ex-
planatory 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
inadequate at law.”
First, TransUnion’s “cf., e.g.” citation to Allen seems to sug- gest that the Court thinks of stigmatic harm as the sort of “con- crete, 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 suffi- cient 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 re- sulting from discrimination in violation of federal statutes—like Laufer’s alleged ADA injury here—I have no idea. Perhaps statu- tory 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 gen- eris 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
TransUnion’s reference to Allen in connection with the judgment-
of-Congress prong, does discrimination need to rise to the level of
a statutory violation? Or because Heckler and Allen actually dealt
with constitutional claims, is it only discrimination in violation of
the Constitution that qualifies? And in either event, must the al-
leged discrimination cause additional, downstream effects, as “in-
formational” injuries seemingly must? See TransUnion, 141 S. Ct.
at 2214 (rejecting an “informational injury” theory of standing, in
part, because the plaintiffs “ha[d] identified no ‘downstream conse-
quences’ from failing to receive the required information” (quota-
tion omitted)). On that score, TransUnion isn’t particularly helpful
except to clarify that courts shouldn’t automatically equate statu-
tory violations with concrete injuries. Id. at 2205. Heckler is also
ambiguous, noting only that discrimination itself “can” cause seri-
ous non-economic injuries.
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 unsettled until the Supreme Court steps in to provide additional guidance.
B
Before turning to Article II’s implications for this case—and
I’ll admit to a little piling on here—let me just flag one more aspect
of the Supreme Court’s current Article III standing doctrine that I
find puzzling. As already noted, Spokeo instructed courts to deter-
mine whether the alleged intangible injury is closely related to a
harm that has “traditionally been regarded as providing a basis for
a lawsuit in English or American courts.” 578 U.S. at 341.
TransUnion seemingly narrowed the frame somewhat—dropping
the “English” in favor оf a singular focus on “American courts”—
and, in doing so, endorsed as examples of valid common-law ana-
logues (1) “reputational harms,” (2) “disclosure of private infor-
mation,” and (3) “intrusion upon seclusion.” 141 S. Ct. at 2204.
Notably, though, the privacy-related torts that the Court empha-
sized didn’t materialize until the late nineteenth century, at the ear-
liest—and in any event long after the Founding. Most observers
trace their origins to an 1890 Harvard Law Review article by Sam-
uel Warren and Louis Brandeis and to ensuing state supreme court
decisions. See Samuel D. Warren & Louis D. Brandeis, The Right
to Privacy, 4 Harv. L. Rev. 193 (1890); see also, e.g., Pavesich v.
New Eng. Life Ins. Co.,
It seems to me that there are two defensible historical ap-
proaches to Article III’s case-or-controversy requirement—but that
TransUnion’s isn’t one of them. First, there’s my own view—that
based on the original understanding and early application of the
term, “an Article III ‘Case’ exists whenever the plaintiff has a cause
of action.” Sierra,
There is an alternative approach that takes Framing-era his-
tory equally seriously but that formulates the issue more granu-
larly. On that view, only the particular common-law causes of ac-
tion that existed at the time of the Founding can serve as valid an-
alogues for modern-day Article III “cases.” So, to my question in
Sierra, “Just how old must a common-law tort be in order to qualify
as having been ‘traditionally . . . regarded as providing a basis for a
lawsuit in English or American courts?’” this second theory would
answer, “Very old—as in 1787 old.” See id. at 1121 (alteration in
original) (quoting Spokeo,
What I don’t get is the TransUnion Court’s compromise po- sition, 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 “con- crete” 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 ac- tion sufficient to confer Article III standing, but the United States Congress is not. I worry that TransUnion’s approach, which looks vaguely to “histor[y]” and “tradition[],” but not to original, Found- ing-era understanding, leaves too much to chance—and thus to in- dividual judges’ discretion. (What about negligent infliction of emotional distress, for instance, which “has only emerged as a cog- nizable, independent cause of action within the last half century,” John K. Kircher, The Four Faces of Tort Law: Liability of Emo- tional Harm, 90 Marq. L. Rev. 789, 807 (2007)—“historical” and “traditional[]” enough?) Far better, I think, to tether Article III standing doctrine to the objectively verifiable original meaning of the written text.
II
A
On, then, to Article II. In Sierra, I wrote that while in my
view “Congress has broad authority to create judicially enforceable
rights by statute and thereby authorize private citizens to sue,” its
authority “isn’t unlimited.”
As I explained, the quintessential example of a suit that ran afoul of Article II’s vesting of executive authority may well (if iron- ically) be Lujan v. Defenders of Wildlife—“in many respects the cornerstone of modern Article III standing doctrine.” Sierra, 996 F.3d at 1132. There, the Supreme Court considered whether pri- vate parties could sue Executive Branch officials under the Endan- gered Species Act. Section 7(a)(2) of the Act required federal agen- cies to consult with the Secretary of the Interior to ensure that no governmental action “jeopardize[d] the continued existence of any endangered species.” Lujan, 504 U.S. at 558 (quoting 16 U.S.C. § 1536(a)(2)). The Fish and Wildlife Service and the National Ma- rine Fisheries Service had jointly promulgated a regulation inter- preting § 7(a)(2)’s consultation requirement to apply only to ac- tions taken in the United States or on the high seas, not to those taken in foreign countries. Id. at 559. Environmental groups and several of their members sued, challenging the regulation as too permissive and seeking both a declaration that the regulation mis- interpreted § 7(a)(2)’s geographic reach and an injunction directing the Secretary to issue a new rule with broader application. Id.
The Supreme Court, of course, decided the case on Article
III grounds, concluding that the plaintiffs couldn’t satisfy standing
doctrine’s injury-in-fact and redressability requirements. But along
the way, the Court also—and I think correctly—emphasized the
separation-of-powers concerns that the plaintiffs’ suit presented. In
particular, the Court said, the plaintiffs’ action sought to compel
executive agencies to enforce the environmental laws in a particu-
lar manner, and thereby sought to “transfer from the President to
the courts the Chief Executive’s most important constitutional
duty, to ‘take Care that the Laws be faithfully executed.’” Id. at 577
(quoting U.S. Const. art. II, § 3). As I wrote in Sierra, Article II’s
Vesting and Take Care Clauses “straightforwardly explain[] the re-
sult in Lujan.”
I concede that Laufer’s suit doesn’t present exactly the same separation-of-powers problems that Lujan did—she is not, for in- stance, 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 de-
scribed 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.”
Now to be sure, Laufer claims to have suffered personal in-
juries as a result of viewing the hotel’s websites that omit accessi-
bility-related information—as already noted, she alleges a discrim-
ination-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
of websites for hotels that she readily admits she has no plans to
patronize in order to “monitor[], ensur[e], and determin[e]”
whether they comply with the ADA—presumably to aid others
who might actually want to visit them. Complaint at 3. As part of
her litigation program—I can’t think of a better word for it—Laufer
filed more than 50 ADA lawsuits against hotel owners in 2019 in
the Northern District of Florida alone, see Doc. 45 at 1, and an ad-
mittedly unscientific search of online court records suggests that,
since 2018, she has filed more than 600 suits nationwide—the great
majority of which appear to seek broad-based relief under the
ADA. See, e.g., Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022);
Laufer v. Mann Hospitality, L.L.C.,
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 considers herself a “private attorney general.” Id. at 27; see also Oral Arg. at 20:05–21:25.
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 ac-
crue to [her] personally”—which is of course perfectly appropriate.
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 Article II. Sometimes even the most narrowly tailored remedy will incidentally—but neces- sarily—inure to the public’s benefit. Imagine, for instance, a home- owner whose lakefront property is being damaged by a company’s ongoing discharge of pollutants into the water. To be sure, if the homeowner succeeds in obtaining an injunction to stop the pollu- tion as a means of preventing the degradation of his own land, the relief will benefit his neighbors—and, for that matter, many other users and admirers of the lake. But that fact alone surely doesn’t impinge on executive authority under Article II.
So what makes Laufer’s suit different? “Tester”-brought ac-
tions like Laufer’s, I contend, are unique. Whereas the typical
plaintiff suffers an injury and then chooses to sue, a tester plaintiff
like Laufer chooses to sue and then—of her оwn free will—suffers
an injury. She literally manufactures her own standing (or to put
it another way, circumvents current standing doctrine’s limita-
tions) by bringing herself to the source of her own injury—in this
case, the allegedly offending hotel websites. Accordingly, tester
suits implicate—and I think can violate—Article II for a reason
highlighted by the Supreme Court in TransUnion: Testers exercise
the sort of proactive enforcement discretion properly reserved to
the Executive Branch. As the TransUnion Court emphasized, “the
choice of how to prioritize and how aggressively to pursue legal
actions against defendants who violate the law falls within the dis-
cretion of the Executive Branch, not within the purview of private
plaintiffs (and their attorneys).”
Let me try to unpack the TransUnion Court’s brief discus-
sion of executive enforcement discretion, by reference to both
modern doctrine and Framing-era history. To start with the for-
mer, we recently summarized that “[t]he Supreme Court has re-
peatedly reaffirmed the principle—which dates back centuries—
that ‘the Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case.’” In re Wild, 994
F.3d 1244, 1260 (11th Cir. 2021) (en banc) (quoting United States v.
Nixon,
As best I can tell, modern Article II doctrine—which holds that case-by-case enforcement discretion is a core and nondelega- ble component of the executive power—is firmly rooted in Founding-era history and practice. Let’s start with pre-American sources, which reveal an understandable preoccupation with “tyr- anny”—and a corresponding commitment to a separation of the law-making and law-enforcing powers. For instance, “the cele- brated Montesquieu,” as James Madison dubbed the influential French political philosopher in The Federalist, wrote that “[w]hen the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty”—be- cause, he warned, “apprehensions may arise, lest the same mon- arch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” 1 Baron de Montesquieu, The Spirit of the Laws 182 (J.V. Prichard ed., Thomas Nugent trans., 1900); see The Federalist No. 47, at 298, 300 (James Madison) (Clinton Rossiter ed., 1961) (quoting this passage of The Spirit of the Laws). Not long thereafter, just across the English Channel, Blackstone sounded a similar theme using similar terms: “In all tyrannical governments, the supreme magistracy, or the right of making and of enforcing the laws, is vested in one and the samе man,” such that “there can be no public liberty” because “[t]he magistrate may enact tyranni- cal laws, and execute them in a tyrannical manner.” 1 William Blackstone, Commentaries on the Laws of England *146 (1765) (emphasis omitted).
This country’s Framers likewise “saw the separation of the
power to prosecute from the power to legislate as essential to pre-
serving individual liberty.” Aiken County,
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 di- viding 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 func- tions would do nothing to moderate tyrannical laws.” Id. at 701– 02. “The separation of legislative and executive functions helps prevent tyranny precisely because a discretionary decision by executive officers intervenes between the enаctment of the prohi- bition and its application to any particular individual.” Id. at 702 (emphasis added).
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 particu- lar—comes from a speech that future Chief Justice John Marshall made on the floor of Congress while serving in the House of Rep- resentatives. 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 An- nals of Cong. 615 (1800). Importantly for our purposes, Marshall then explained that “[i]n this respect the President expresses consti- tutionally 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, Mar- shall thereby “articulated, in strikingly modern terms, the norma- tive 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 independent judgment regarding whether the ‘will of the nation’ requires prosecution of a particular defendant who violated Con- gress’s general enactments.” Id. at 703. And to be clear, other Framing-era evidence—like modern doctrine—indicates that the President’s constitutional power “to enforce the execution of [the] laws” transcends the criminal-prosecution realm to include, as well, the pursuit of what we would recognize today as civil sanc- tions—for example, “pecuniary mulcts” ( i.e., fines) and “suspen- sion[s] or divestiture[s] of privileges.” The Federalist No. 21, supra, at 134–35 (Alexander Hamilton).
Rounding out the story, it seems clear that the Framers’ un- derstanding—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 par- ticular instances—carried over into actual practice: “[F]ederal pros- ecutors 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 evi- dence, 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 Convic- tions, 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 nolle prosequi in any stage of a criminal proceeding in the name of the United States,’” id. at 725 (quoting Power to Order a Nolle Prosequi, 5 Op. Att’y Gen. 729, 729 (1821)); and (3) that in 1832 the Supreme Court dismissed a pending case because the President di- rected a nol pros, id. at 724–25 (citing United States v. Phillips, 31 U.S. 776, 777 (1832)). 3
In sum, it seems to me that the Founding-era and early his- torical evidence strongly indicates that as originally understood, the Constitution protected private citizens from arbitrary—“tyran- nical”—exercises of government power, at least in part, by vesting enforcement discretion in the President and his subordinates.
C
If, as I think the evidence bears out, enforcement discretion
is part and parcel of the “executive Power” vested by Article II in
the President, then it follows, for reasons I explained in Sierra, that
such discretion “can’t be exercised by private parties—including, as
relevant here, private plaintiffs.”
D
Which brings us back to Laufer. Do tester plaintiffs like Lau-
fer proactively exercise law-enforcement discretion in a way that
implicates—and may actually violate—Article II? Do they, in the
TransUnion Court’s words, choose “how to prioritize and how ag-
gressively to pursue legal actions against defendants who violate
the law”?
First, and most prominently, a tester like Laufer exercises
executive-style enforcement discretion by freely choosing how
vigorously the law should be enforced—she can bring one lawsuit,
or a dozen, or hundreds. And there’s no external check on that
choice: There’s no limit to the number of defendants that a tester
can investigate, decide to sue, and (then) obtain the necessary in-
jury from—except her (and her attorneys’) time, will, and money.
For their part, Laufer and her lawyers have opted for an aggressive
enforcement strategy. The record in this case reveals that Laufer
filed more than 50 ADA-related lawsuits in the Northern District of
Florida during 2019 alone. And publicly available docket data re-
veal the breadth of Laufer’s (and her lawyers’) enforcement pro-
gram: Again, from what I can tell, since 2018 Laufer herself has
filed more than 600 suits nationwide—in federal courts in Colo-
rado, Connecticut, the District of Columbia, Florida, Georgia, Illi-
nois, Indiana, Maine, Maryland, Massachusetts, New Jersey, New
York, Ohio, Pennsylvania, Rhode Island, Texas, and Wisconsin.
And Laufer has help: First, Patricia Kennedy, who, like Laufer,
views herself as “an ADA advocate and a ‘tester’” who “monitor[s]”
hotels’ “compliance with” the Act—and who, conspicuously, is of-
ten represented by the same lawyers who represent Laufer—has
filed at least “250 ADA cases in the Southern District of Florida
since . . . October 2018,” and, according to online court records,
many hundreds more in other districts around the country. Ken-
nedy v. Floridian Hotel, Inc.,
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 testеr 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. Alter- natively, they could target noncompliance with an altogether dif- ferent 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 theoreti- cally) choose among enforcement targets based on arbitrary or dis- criminatory factors that Executive Branch officials, bound by con- stitutional 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 sorts of case-by-case determinations, for good or ill—only that they could.
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 po- litically, to the voters, and legally, to the Constitution. Unaccount- able private parties (and their fee-conscious lawyers) have no in- centive 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 con- straints that bind government enforcers, private parties may actu- ally exacerbate the risk of arbitrаry power. 5
* * *
To sum up, a plaintiff’s suit implicates (and may well violate)
Article II if the plaintiff, in bringing the action, exercises the sort of
broad-ranging enforcement discretion that the Constitution vests
exclusively in Executive Branch officials—if, in the Supreme
Court’s words, she chooses “how to prioritize and how aggres-
sively to pursue legal actions against defendants who violate the
law.” TransUnion,
[6] To be clear, my concern here isn’t with statutory enactments themselves,
but rather the way that they can be enforced—in particular, by testers. In Si-
erra, I argued that Article II limits Congress’s ability to enact statutes “author-
izing an individual plaintiff to sue for harm done to society generally.” 996
F.3d at 1136 (emphasis added). As already noted, tester plaintiffs like Laufer
at least nominally allege personal injuries—as they must, to obtain conven-
tional Article III standing. The Article II problem arises, I argue, when those
plaintiffs exercise enforcement discretion by proactively manufacturing inju-
ries in order to sue and thereby remedy public wrongs. So, the statutes under
which tester plaintiffs sue aren’t facially unconstitutional, because they validly
apply to plaintiffs seeking redress for private injuries. They are, however, un-
constitutional as applied to tester suits. See, e.g., Harris v. Mexican Specialty
Foods, Inc.,
in Article II terms . . . raise[d] its own set of hard questions,” 996 F.3d at 1139, so it is with this more particular application of Article II to testеr plaintiffs. Here, as there, it won’t always be “self-evident where proper individual enforcement leaves off and the ‘executive Power’ begins.” Id. Perhaps the hardest question of all with re- spect to testers is how to identify them and distinguish them from conventional, non-tester plaintiffs. I needn’t—and so won’t—at- tempt to definitively answer that question today. This case is straightforward: Laufer openly advertises herself as a “tester” and an “advocate of the rights” of others and admits that she has no intention ever to patronize the hotels whose policies she is attempt- ing to change. Even in less obvious cases, it would seem to me significant—and indicative of tester status—if a plaintiff brought herself, as Laufer did, to the source of her own injuries in order to manufacture standing to sue and took actions that she wouldn’t otherwise have taken but for her desire to advance the rights of others. In those circumstances—which strongly suggest that the plaintiff has exercised executive enforcement discretion—Article II imposes a real constraint. 7
E D C ARNES E D C ARNES , Circuit Judge, concurring:
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 re-
mand into the jurisdictional facts underlying Laufer’s alleged in-
jury.” 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.,
Plaintiffs may make factual allegations about a court’s juris-
diction to decide their lawsuits, but they do not make factual find-
ings about it. Courts do. That is why there is a difference in the
procedures used to decide facial and factual questions about juris-
diction. See Lawrence v. Dunbar,
As the majority opinion instructs, on remand it “remains for
the district court to determine (or, if it has done so already, to clar-
ify) 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.” Maj. Op. at 12. And, by “district court,” we
mean the district court judge, not the jury in a trial presided over
by the judge. See, e.g., ACLU of Fla., Inc.,
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 hu- miliation, frustration, and a sense of isolation and segregation, which she otherwise would not have suffered. Laufer filed an affi- davit 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 E D C ARNES she felt and how much, if any, distress she suffered. How could there be any, since we are talking about what went on inside her head?
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,
Were it otherwise, a plaintiff in this kind of case could al- ways 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.
Notes
[1] The district court found that Laufer never intended to visit the Value Inn and had no personal need for the information missing from the websites, and she doesn’t suggest otherwise on appeal.
[2] “We review de novo a district court’s dismissal of a case for lack of standing.”
Sierra,
[3] We sought and received supplemental briefing from the parties regarding the import of Sierra and TransUnion for this case.
[4] We don’t read Heckler and Allen to hold that illegal discrimination always
and necessarily results in concrete injury—only that “discrimination it-
self . . . can cause” concrete injury, in at least some circumstances. Heckler,
[5] It’s not fatal that Laufer hasn’t explicitly linked her alleged emotional harm
to a theory of standing based on “stigmatic” injury, in particular. A plaintiff’s
burden is merely to “allege facts essential to show” standing, not to specify a
particular theory of injury—tangible, intangible, stigmatic, informational, etc.
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (emphasis added)
(quoting Warth v. Seldin,
[6] Because we conclude that Laufer has at least alleged facts sufficient to confer
Article III standing on a “stigmatic”-injury theory, we needn’t decide, and take
no position on, whether she has alleged an Article-III-qualifying “informa-
tional” injury. In particular, we needn’t reach the question of how best to
understand and apply the Supreme Court’s decisions in Havens Realty Corp.
v. Coleman,
[1] The complaint, as noted in the court’s opinion, contains additional allega- tions about Ms. Laufer suffering frustration and humiliation as a result of the websites’ failure to comply with the ADA. I focus here on the informаtional injury alleged by Ms. Laufer.
[2] Mr. Willis, unlike Ms. Coleman, lacked standing as a tester because he had
not been given any incorrect or untruthful information about the availability
of apartments for rent. See Havens Realty,
[3] Other circuits have also applied Havens Realty to allow tester standing under
Titles II and III of the ADA. See Tandy v. City of Wichita,
[1] See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Inter- pretation of Legal Texts 101 (2012) (“Without some indication to the contrary, general words . . . are to be accorded their full and fair scope. They are not to be arbitrarily limited. This is the general-terms canon, which is based on the reality that it is possible and useful to formulate categories . . . without know- ing all the terms that may fit—or may later, once invented, come to fit—within those categories.”).
[2] A PACER search for exact matches to “Deborah Laufer” as the plaintiff yielded 658 cases—all filed between July 2018 and today. A random sample of those cases consisted solely of ADA lawsuits brought against businesses.
[3] As should be clear from the material quoted in text, the historical sources
seem to reflect a distinction between ordinary, case-by-case discretionary en-
forcement determinations, which Article II protects, and what I’ll call “pro-
grammatic” non-enforcement, which it does not. The 1689 English Bill of
Rights, for instance, expressly declared “illegal” the “pretended power[s]” of
“suspending” and “dispensing with” parliamentary acts “by regal authority.”
An Act Declaring the Rights and Liberties of the Subject, and Settling the Suc-
cess of the Crown, 1 W. & M., Sess. 2, c. 2 (1689). On this side of the Atlantic,
“several states during the American revolutionary period adopted constitu-
tions including prohibitions on executive suspension of laws,” Price, Enforcе-
ment Discretion, at 692 (citing Steven G. Calabresi et al., State Bills of Rights
in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in Amer-
ican History and Tradition?, 85 S. Cal. L. Rev. 1451, 1534–35 (2012)), and “[a]t
the Constitutional Convention, the delegates unanimously rejected a proposal
to grant the President suspending authority,” id. at 693 (citing 1 The Records
of the Federal Convention of 1787, at 103–04 (Max Farrand ed., 1966)). I read-
ily confess, of course, that the distinction between case-by-case and program-
matic non-enforcement could get a little fuzzy at the border, but that doesn’t
render the line illusory. Cf., e.g., Chaney,
[4] As I’ve previously explained, I view qui tam actions as an idiosyncratic ex-
ception to the general rule that private parties can’t exercise executive power.
See Sierra,
[5] Because Laufer sued (at least in part) under an Attorney-General-promul- gated regulation, see 28 C.F.R. § 36.501(a), one might argue that Congress properly authorized the Executive Branch to enforce Title III of the ADA, see 42 U.S.C. § 12188(b) (“Enforcement by the Attorney General”), and that the Executive Branch, in turn, delegated its enforcement authority to private plaintiffs by granting them a cause of action. I don’t think so. If, as I contend, tester-brought lawsuits are an exercise of executive power, then the Attorney General’s purported delegation is ineffective, because the constitutionally vested “executive Power” to enforce the law cannot be delegated (abdicated) to private parties. See supra at 25–26; Grove, Standing as Nondelegation, at 783 (“Article II prohibits Congress and the Executive Branch from delegating . . . discretionary enforcement authority to private parties . . . .” (emphasis added)); see also Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191–92 (2020) (“The President’s power to remove—and thus super- vise—those who wield executive power on his behalf follows from the text of
[7] One last thing: Given my conclusion that tester suits like Laufer’s violate
Article II, why am I concurring in, rather than dissenting from, my own opin-
ion for the Court vacating the district court’s dismissal of Laufer’s action? In
short, because I recognize that my own view about how Article II might effec-
tively limit plaintiffs’—and particularly tester plaintiffs’—authority to sue is
not the law. In TransUnion, the Supreme Court observed that a “regime
where Congress could freely authorize unharmed plaintiffs to sue defendants
who violate federal law . . . would infringe on the Executive Branch’s Article
II authority.”