images-4Suppose a wheelchair bound individual interested in accessibility issues becomes a Registered Accessibility Specialist (“RAS”) in Texas or a Certified Accessibility Specialist (“CASp”) in California. She sets up a consulting business, and her first client hires her to do an accessibility survey of a hotel. She finds numerous barriers to access, prepares her report, and then sues her client, claiming that she suffered discrimination under the ADA when she encountered the barriers to access she was hired to find. There is clearly something wrong with this picture, but you wouldn’t know it from reading some decisions on ADA standing. Looking at what is wrong helps clarify how courts have gone wrong in analyzing ADA standing.

A decision from just a few weeks ago, Norkunas v. HPT Cambridge, 2013 WL 5229838 (W.D. Mass. 2013) illustrates the problem. In Norkunas, the plaintiff, a self proclaimed ADA activist, admitted that while travelling on family matters he visited hotels with the specific goal of finding ADA violations that would form the basis for a lawsuit. In the case at hand he stayed at four hotels in as many nights in the same city, conduct that only made sense in terms of his search for potential defendants. He also admitted that his income was almost entirely derived from expert fees paid to him in ADA litigation. Like the hypothetical RAS in my example above, this plaintiff’s job was finding ADA violations.

The district court had no problem with this, specifically holding that standing based on an intent to create standing for litigation was adequate. However, in reaching its holding it forgot to ask the most fundamental question for standing; that is, had the plaintiff suffered an injury. The plaintiff’s primary goal when he made hotel reservations was to find ADA violations. For the plaintiff success meant finding a hotel that was not ADA compliant. Since success for the plaintiff was finding a non-compliant hotel, it hard to see how he was deprived of the “full and equal enjoyment” of the facility when he found it. He got from his stay exactly what he wanted, which was a hotel full of barriers to access. He suffered no injury because he fully enjoyed the hotel in exactly the way he wanted to. In fact, the only injury he could have suffered would have been to waste his money spending the night at a hotel he could not sue.

Moreover, ADA standing requires not only an initial injury, but also a likely later injury that can be avoided by injunctive relief; a redressible injury. Although the case law is not perfectly uniform, most courts recognize that there cannot be a redressible injury unless the plaintiff is either likely to return to the facility and therefore suffer discrimination again, or is being deterred from returning and therefore being deprived of the use and enjoyment of the facility. See, Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir.2011) (en banc).  Since the plaintiff’s habit was to stay at as many different hotels as possible in order to find violations, and there are hundreds of hotels in the geographic area to which he traveled, he could not honestly claim he was likely to return to the defendant hotel. Nonetheless, the Nokunas court found that the lack of accessibility narrowed his choices of hotel, and that this narrowing of choices was itself an injury. Once again, however, the Court failed to consider whether the supposed narrowing of choices was really an injury to this plaintiff. Once he filed suit against an admittedly non-compliant hotel the only thing, other than standing, that might have made him lose on the merits was remediation. Immediate remediation would have rendered his claims moot, leaving him with nothing to recover and modest attorneys fees for his lawyers. What the plaintiff wanted, and got, was a hotel that remained inaccessible through trial, thus justifying the attorneys and expert fees that were his primary reason for bringing the lawsuit. In short, the only thing that would have injured the plaintiff by denying him the peculiar use and enjoyment of the facility he wanted was remediation. He suffered no injury as a result of the continuing non-compliance.  Once a plaintiff concedes that he is motivated by a crusade to find ADA violations he destroys the possibility of either a present or ongoing injury resulting from such violations.

This particular plaintiff’s standing claims are not universally recognized (see, Norkunas v. Park Road Shopping Center, 777 F.Supp. 2d 998 (W.D. N.C. 2011), and the rigorous analysis in these other cases suggests how standing should be argued. At the same time, the courts should recognize that cases brought by professional plaintiffs rest, in the end, on a lie. A person who seeks out ADA violations with the intention of filing a lawsuit when he finds those violations cannot be injured by the violations he finds because he intends to use and the enjoy the facility as an excuse for litigation. The plaintiff in Nokunas is no more a victim of discrimination than an RAS or CASp who is hired by a property owner to survey a property and finds barriers to access as part of his job.