In the Ninth Circuit and in courts that follow its holdings ADA standing can be based on nothing more than a paranoid fantasy by the plaintiff or a presumption of guilt by the court. This conclusion follows logically from two decisions that themselves rest on neither logic nor the law.
The first case is Pickern v. Holiday Quality Food, Inc., 293 F.3d 1133 (9th Circ. 2002). In Pickern the Court held that a plaintiff who is “deterred from patronizing a public accomodation” by ADA violates has suffered an actual injury. The Court substituted deterrence for an actual encounter with an architectural barrier. According to Pickern simply by stating that he was “deterred” from trying to go into the store the plaintiff had “stated sufficient facts to show concrete, particularized injury.” Id. at 1137-1138.
Of course the Supreme Court’s standing requirements include an “imminent injury” that justifies injunctive relief. In Pickern this came from the plaintiff’s statement that “he has actual knowledge of barriers to access.” Because the barriers continued to exist (based on the plaintiff’s “actual knowledge”) and he continued to be deterred from visiting the store there was an imminent injury to be corrected by injunctive relief.
Six years later, in Doran v. 7-Eleven, 524 F.3d 1034 (9th Cir. 2008) the Ninth Circuit discarded the “actual knowledge” that was present in Pickern. The central issue in the case was whether the plaintiff had standing to continue his lawsuit after the architectural barriers he encountered on his first visit had been eliminated. Straining to keep the lawsuit alive for reasons of convenience and the Court’s perception of public policy, the Ninth Circuit arrived at a rule that permits suspicion or the presumption of guilt to create ADA standing.
The first step followed logically from Pickern. Because, under Pickern, “deterrence” creates a concrete injury in the same way as an actual encounter with an architectural barrier, it follows that a plaintiff need only “become aware of” an architectural barrier in order to have suffered a concrete injury. Id. at 1042 n.5. The requisite awareness does not have to be based on firsthand knowledge because, as Doran makes clear, it may come from the report of a third person like an expert witness.
In Doran itself the plaintiff had firsthand knowledge of some barriers and had even encountered them, but if awareness plus deterrence can create an “imminent injury” there is no reason to say it cannot also create an actual injury. Thus, once the Ninth Circuit adopted deterrence as an injury mere “awareness” became sufficient at every step.
The second step and final step in the Ninth Circuit’s slide to absurdity was the creation of a presumption that any one violation indicates the presence of other violations, or at least justifies a suspicion of such violations sufficient to justify standing based on deterrence. Here is what the Court said:
“when a disabled individual knows that a facility is noncompliant with the ADA in at least some respects but does not know the full extent of the noncompliance, he or she is likely to be deterred from returning to that facility, even if some of the violations are corrected, until he or she can get more information about the extent of the violations.”
Id. In other words a plaintiff who suspects, based on past violations, that there may be additional violations has suffered an injury if his suspicion deters him from visiting the facility. Suspicion based on based past violations is enough, even if they have all been corrected.
It isn’t difficult to see that this leads to absurd results. Suppose a disabled person hears from her lawyer that the store down the street has no accessible parking. Being “aware” of the ADA violation she decides not to patronize the store and risk actually encountering the violation. According to the Second Circuit her awareness plus deterrence equals a concrete injury sufficient to meet that requirement for standing. A week later her lawyer tells her that the problem has been fixed, but the plaintiff decides not to risk a trip to the store because she needs “more information about the extent of the violations.” According to the Second Circuit this deterrence based on a suspicion of additional violations is sufficient to create an imminent injury that gives her standing to challenge the suspected violations. Having both an actual and imminent injury she can file suit and maintain that suit long enough to hire an expert to conduct a survey of the facility and find out if there are in fact additional violations. If there are additional violations she can obtain injunctive relief requiring their correction. And she can do all of this without ever having left her house based on a report from her lawyer.
One might argue, of course, that the correction of the first violation moots her claim to have suffered an “actual injury” since it can no longer deter her. Remember, however, that suspicion that there are violations plus deterrence is also an injury. She can simply allege that she was deterred from visiting the store because she suspects she will encounter violations. That becomes both the actual injury and the imminent injury for standing purposes under the rationale in Doran.
But if suspicion is enough, why require that she even be aware of a single violation? After all, studies have shown that most public accommodations have at least a few ADA violations. Why can’t the plaintiff simply allege that she is deterred from going to the store because of her rational fear that if she does so she will encounter an ADA violation, and that until it has been surveyed by an expert to prove there are no violations she needs “more information.” Under Doran she should be able to sue every public accomodation she might reasonably expect to visit based on the suspicion that there are ADA violations because, once again, suspicion plus deterrence is an injury according to Doran.
In my next blog I’ll explain how the Ninth Circuit has undercut the rule advanced in Doran. Oliver v. Ralphs Grocery, Inc., 654 F.3d 903 (9th Cir. 2011) creates a pleading requirement that makes the suit described in the last paragraph impossible even as the Court claims that it is not changing the requirement for standing. The absurdity of a plaintiff who has standing make a claim under the ADA but cannot plead it will be the subject of that blog.
