Wheelchair_BasketballJust a few weeks ago I wrote about what seems to be a pervasive though obvious problem with the analysis of standing for ADA accessibility plaintiffs. (“Oops! – Can a plaintiff suffer an ADA injury if he gets exactly what he wants?” Oct. 4, 2013). The 11th Circuit apparently overlooked my critique when it decided Houston v. Marod Supermarkets, Inc., 2013 WL 5859575 (11th Cir. 2013) on November 1. Nonetheless, the case is worth examining as an example of the kind of slippery reasoning that usually covers up a logical fallacy.

The majority’s analysis of the “injury” suffered by an ADA plaintiff perfectly illustrates the way important problems are simply ignored. First, the Court writes: “The invasion of Houston’s statutory right in §12182(a) [to the full and equal enjoyment of the . . . facilities] occurs when he encounters architectural barriers that discriminate against him on the basis of his disability.” Packed into this statement are two enormous assumptions, neither of which was supported by the pleadings or by the logic of the statute. First, the opinion assumes that every architectural feature that does not comply with ADA Standards is an architectural barrier. This is consistent with quite a bit of case law, but doesn’t make any sense for a statute about discrimination against individuals. Courts have no trouble saying that a person who has good vision cannot be a victim of discrimination when ADA Standards related to vision are violated because those violations cannot interfere with his use and enjoyment of the facility. They are willing, however, to say that every person with a mobility disability will suffer from every violation related to a mobility disability even if it doesn’t apply in their particular case. Is a sidewalk with a 1:15 slope a “barrier” to an athlete who competes in his wheelchair in the Paralympic games? Probably not. Is a door with only a 36” level approach a barrier to a person who must use a cane to walk? Again, probably not. What constitutes a real barrier depends on the individual, and at the pleading stage it should certainly be required that that plaintiff at least allege his access was inhibited by each barrier. Otherwise he has not alleged he was a victim of discrimination.

This leads naturally to the second false assumption on which the majority relies; that is, an “encounter” is sufficient to deny the plaintiff full and equal enjoyment of the facility. In this and many other cases “encounter” means nothing more than seeing the alleged barrier. It does not require that the plaintiff’s access be inhibited by the barrier; only that he be aware of its existence. Again, this is a position taken by many earlier cases, but the disconnect from reality is obvious. Seeing a feature that does not comply with the Standards cannot be the kind of “concrete injury” required for Article III standing.

Having drained the words “architectural barrier” of any real meaning, the Court goes on to deny that the words “use and enjoyment” have any meaning at all. The Court writes:

The substantive right conferred by the statute is to be free from disability discrimination in the enjoyment of the facility, regardless of Houston’s motive for visiting the facility.

(emphasis added). How is it possible to know if a person’s use and enjoyment has been interfered with if you do not why he visited the facility? If the plaintiff visits the store only to say hello to his niece, and with no intention of buying anything, has there been any interference with his use and enjoyment because the checkout counter is too high? The very possibility of discrimination is defined by the motive of the person going to a facility, and so motive must be the first inquiry made in order to determine if there has been discrimination.

The majority’s last error is the one about which Judge Bowen complains in his dissent. Judge Bowen, a district judge sitting by designation, identifies the plaintiff as a serial litigator or, in his colorful language, “a volunteer man for a litigation combat patrol.” He then identifies the majority holding on “intent to return” as nothing but a requirement that the plaintiff utter “some incantations” in order to avoid dismissal. The practical problem here is that while an incantation may get the plaintiff past dismissal, it is unlikely to survive a trial in which the plaintiff’s real intentions and credibility are the subject of a fact finding by the trial court. Allowing a mere formula of words to keep the case alive at the Rule 12b(6) level means that judicial resources and the parties money may be wasted on a case that will be dismissed for lack of standing at trial. I beieve Judge Bowen, from his perspective as a district judge, could see more clearly than the other members of the panel that bad law has its immediate impact in terms of wasted time and resources in the trial courts.

So how did we reach a situation in which the ADA has become, simultaneously, a retroactive national building code and a basis for plaintiff profiteering? I believe it is the courts’ reaction to the fact that the ADA contains no effective legitimate means to carry out its purposes. Advocates for disability rights often point out that “ordinary” plaintiffs who suffer from discrimination probably have neither the means nor a sufficient motive to sue. For many with disabilities, the barriers they encounter are a persistent nuisance they’ve learned to live with in the same way one might live with a slightly leaky faucet. It’s not right, but not enough to go to the trouble of taking a day off work to wait for the plumber. The Department of Justice, on the other hand, scarcely has the resources to attack any but the most significant violations, usually on a national scale. Without professional plaintiffs, these advocates say, there would be no real enforcement of the ADA at all.

This may be a real problem, but the solution adopted in Houston v. Marod Supermarkets cannot be justified by the language of the statute or the standing requirements inherent in Article III of the Constitution. Houston v. Marod Supermarkets is a disappointing case, but defendants forced to litigate by unreasonable plaintiffs should not fail to insist that a plaintiff plead and prove that the “barriers” encountered were barriers to the plaintiff, that the plaintiff suffered more than a psychic injury of knowing the ADA was violated, and that the plaintiff was in fact deprived of the use and enjoyment of the premises.