Testing the Testers: The Supreme Court is Set to Consider the Standing of Private Citizens Who Sue to Enforce the Americans with Disabilities Act
On October 4, the Supreme Court will hear arguments in Acheson Hotels LLC v. Laufer. The case explores whether so-called “tester” plaintiffs under the Americans with Disabilities Act have standing to sue for alleged ADA violations under Article III of the Constitution, even when such plaintiffs have no intention of patronizing the business they are suing.
Title III of the ADA 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.” Discrimination includes “failure to make reasonable modifications in policies, practices, or procedures” when such modifications are needed to make the public accommodation accessible to individuals with disabilities.
The Attorney General has authority to issue rules implementing the statute, and one of those regulations concerns hotel reservations. Known as the “Reservation Rule,” the regulation requires public accommodations, like hotels, to “[i]dentify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” DOJ guidance supporting the Reservation Rule provides that disabled persons should be able to reserve hotel rooms with the same “efficiency, immediacy, and convenience” as non-disabled do. It also requires a reservation system to provide enough detail to let disabled persons know what services they offer.
The ADA includes a private right of action that allows disabled individuals who have been discriminated against by a public accommodation to bring an enforcement action against the business in federal court.
In Acheson, Laufer (a Florida resident who has mobility issues, limited use of her hands, and vision impairment) sued Acheson Hotels, LLC for failure to accommodate her disabilities under Title III of the ADA for one of its hotels, the Coast Village Inn and Cottages located in Maine. Laufer said that Acheson’s website did not provide information that identifies the hotel’s accessibility features or identifies and allows for booking of accessible rooms. She also argued that Acheson was liable for the fact that third-party platforms, which take reservations for its hotel, also did not provide such information.
Laufer is a self-proclaimed “tester” plaintiff. Such plaintiffs search out supposed violations of the ADA and then file lawsuits to remedy the alleged violation and collect fees. As is often the case with tester plaintiffs, Laufer openly admitted during the litigation that she had not visited the Coast Village Inn and had no intention of doing so.
The district court dismissed the lawsuit finding that she lacked standing because she did not suffer an injury, and the 1st Circuit Court of Appeals reversed.
Acheson asserts that Laufer lacks Article III standing because she did not suffer a real-world harm that was personal to her. As a result, her injury was neither concrete nor particularized. Under TransUnion v. Ramirez, an informational injury can only justify Article III standing when the plaintiff demonstrates that she experienced adverse effects from not receiving the legally required information. Laufer cannot show that here because she never intended to stay at Acheson’s hotel.
Moreover, Acheson argues that Laufer (who has brought more than 600 cases against lodging and hospitality companies) is not really trying to redress injuries to her, but rather is seeking to enforce the ADA more broadly. Citing TransUnion, Acheson argues that under our constitutional structure, it is not the job of plaintiffs and their attorneys to make enforcement decisions relating to general compliance with the laws on the books. That is the job of the executive branch, which, unlike private citizens, is accountable to the people.
Laufer counters that under Title III of the ADA, “any person” who is disabled and experiences an accessibility barrier has suffered discrimination under the law. Thus, once Laufer visited Acheson’s website and experienced the lack of accessibility information required under the law, she was harmed and had standing to sue. Laufer relies in large part on Havens Realty Corp. v. Coleman to support her standing argument. Havens found Article III standing when a Black plaintiff claimed discrimination under the Fair Housing Act. The plaintiff, who did not intend to rent an apartment from the defendant company, asked whether the company had apartments to rent and was falsely told that it did not.
Laufer argues that tester plaintiffs like her are vital to fulfilling the ADA’s accessibility goals since the Act does not provide for money damages and most disabled persons cannot afford to bring a legal challenge when they encounter an accessibility barrier.
While Acheson focuses on Article III standing issues, an amicus brief filed by the Center for Constitutional Responsibility (where, full disclosure, I am Executive Director) picks up on the argument that it is the executive and not private plaintiffs who should be enforcing public rights. The Center argues in support of Acheson that these tester lawsuits not only violate Article III standing requirements, but also Article II’s requirement that law enforcement power reside exclusively within the executive branch or at least within its direct control.
Finally, it should be noted that there remains a question as to whether the Supreme Court will reach the merits of the standing arguments in this case. On various occasions, both parties have suggested the case is moot for differing reasons. In fact, this summer, Laufer asked the Supreme Court to dismiss the case as moot, but the Court denied the motion, and in an unsigned order said that it could hear the mootness arguments when it hears the arguments regarding Article III standing of “tester” plaintiffs in October.