GIVING DISABLED TESTERS ACCESS TO FEDERAL COURTS: WHY STANDING DOCTRINE IS NOT THE RIGHT SOLUTION TO ABUSIVE ADA LITIGATION NOTE. Leslie Lee* ABSTRACT

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1 GIVING DISABLED TESTERS ACCESS TO FEDERAL COURTS: WHY STANDING DOCTRINE IS NOT THE RIGHT SOLUTION TO ABUSIVE ADA LITIGATION NOTE Leslie Lee* ABSTRACT Over twenty years after the enactment of Title III of the Americans with Disabilities Act ( ADA ), its promise of providing access for the disabled to places of public accommodation has remained unfulfilled. This likely stems from the wide under-enforcement of Title III; though Title III creates a private right of action for disabled individuals to sue for enforcement, the few individuals who do bring suit are often turned away for lack of standing. Perhaps these suits face skepticism and harsh scrutiny from courts because Title III suits are viewed as a cottage industry formed by a few profit-driven individuals who have no interest in actually removing barriers to access. Standing, however, is not the right solution for curbing these abusive practices. This Note will argue that ADA testers, disabled individuals who travel across the country searching for ADA violations and bringing suit, should have standing to sue under Title III. The statutory language and legislative history of Title III suggest that Congress intended for testers to have standing to sue, and traditional standing doctrine as applied to Fair Housing Act and equal employment testers suggest that testers should have standing. This Note will argue that the primary reason for skepticism towards ADA testers stems from practical problems with the application of Title III specifically an under-enforcement problem and a professional plaintiff problem. The under-enforcement problem stems from the lack of incentive for most disabled individuals to bring suit, and the small number of lawyers with the Attorney General who are dedicated to ADA suits. The professional plaintiff problem arises because, in order for Title III suits to be worthwhile for a plaintiff and his or her attorney, they must file many suits against many places of public accommodation, which often results in profit-driven, rather than access-seeking, litigation. These problems can be resolved by revising Title III to clearly give testers standing to sue, and employing other mechanisms, like attorney s fee-shifting, vexatious litigant sanctions, and compliance certification, to curb abusive litigation.

2 Spring 2012] Abusive ADA Litigation 319 CONTENTS Abstract Introduction I. The Basics of Standing Doctrine A. Constitutional Standing Threshold B. Statutorily-Created Injury II. Application of Standing Doctrine to Testers A. Tester Standing in Non-ADA Contexts Fair Housing Act Testers Equal Employment Testers B. ADA Tester Standing When Courts Reject Standing for ADA Testers a. Application of the Proximity Test When Courts Find Standing for ADA Testers a. Refraining from Credibility Inquiries b. Testers as Bona Fide Patrons Do ADA Tester Organizations Have A Better Chance? C. Why Do ADA Testers Face Heighted Scrutiny? The Statutory Language & Legislative History of the ADA Practical Problems with Application of the ADA a. The Enforcement Problem b. The Professional Plaintiff Problem III. Possible Solutions A. Giving Testers Access: Granting Standing Why Should Testers Have Standing? Revising the ADA to Clearly Grant Testers Standing a. Awarding Damages under Title III b. Re-characterizing the Injury in Title III B. Other Mechanisms as Solutions Re-purposing ADA Organizations Attorney s Fee-Shifting Vexatious Litigant Standard, Rule 11, and ABA Sanctions 354 a. Vexatious Litigant Standard b. Rule c. ABA Sanctions Compliance Certification Conclusion

3 320 Virginia Journal of Social Policy & the Law [Vol. 19:2 INTRODUCTION When it was enacted in 1990, the Americans with Disabilities Act ( ADA ) was heralded as a great step in making the American dream available to 43 million disabled Americans who had long been ignored. 1 In establishing a comprehensive prohibition of barriers to access in places of public accommodation, Title III of the ADA, in particular, promised to integrate disabled individuals into American society, and allow for them to participate in activities most Americans take for granted. Over twenty years later, however, this promise remains unfulfilled. Many disabled citizens remain isolated from society in the face of rampant noncompliance, while a small number of individuals employ the statute for their own monetary gain. Where did Title III go wrong, and what solutions can be implemented to fix it? Like many other federal regulatory statutes, Title III of the ADA establishes a private cause of action to help enforce its commands regarding places of public accommodation. 2 Indeed, decades after the ADA s enactment, experts argue that private lawsuits are necessary for the ADA to be effective. 3 In many circumstances, however, ordinary private citizens who face discrimination have little incentive to sue, because Title III of the ADA does not authorize the award of damages; the only available relief is equitable (plus the award of attorney s fees). 4 So-called testers, people with the mission of testing facilities for compliance with federal law and bringing suit over violations, seek to respond to this problem. In the ADA context, a tester is a qualified individual with a disability who is testing an entity's compliance with federal disability statutes. 5 While the Supreme Court has approved suits by testers under the Fair Housing Act ( FHA ), 6 and lower courts have entertained suits by testers under the equal employment opportunity statutes, 7 federal courts have been less receptive to suits by testers under CONG. REC. S , S9684 (daily ed. July 13, 1990) (statement of Sen. John McCain) U.S.C (2006). 3 See infra text accompanying notes and accompanying text. 4 See 42 U.S.C (a) (2006); 42 U.S.C. 2000a 3(a) (2006). 5 Judy v. Pingue, No. 2:08-CV-859, LEXIS , at *12 (S.D. Ohio Nov. 25, 2009) (citing Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004)). 6 See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). 7 See, e.g., Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000).

4 Spring 2012] Abusive ADA Litigation 321 Title III of the ADA. 8 A number of courts have dismissed such suits for want of standing. 9 The text of the statutes fails to explain why some courts often turn a skeptical eye towards ADA testers, despite the Supreme Court s favorable treatment of FHA testers. Title III of the ADA states that any person who is being subjected to discrimination on the basis of disability in violation of [the ADA] or who has reasonable grounds for believing that such person is about to be subjected to discrimination may bring suit. 10 This language is similar to the language of the FHA and the equal employment statutes. 11 Instead, it seems that the courts skepticism towards ADA testers stems from the practical realities of the application of Title III. Unlike violations of the FHA and equal employment statutes, violations of the ADA are often readily discernible; a tester merely needs to enter a place of public accommodation to observe any architectural barriers that may block access for the disabled, whereas FHA and employment testers often have to conduct substantial research over extended periods of time in order to produce evidence of discrimination. In the ADA context, then, many courts have been inundated with what one district court has labeled a cottage industry of lawsuits 12 individual self-proclaimed testers are filing dozens, and sometimes hundreds, of suits against a vast array of public accommodations across many states. In the face of these professional plaintiffs, federal courts appear to be employing standing as a judicial tool to prevent the exploitation of this civil rights statute. Curtailing tester standing, however, creates practical problems of its own. Like FHA testers and equal employment testers, ADA testers who act as private attorneys general perform a service for the community that would otherwise go unperformed. Because of the lack of available 8 See, e.g., Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1285 (M.D. Fla. 2004). 9 See Molski v. Mandarin Touch Rest., 385 F. Supp. 2d 1042, 1046 (C.D. Cal. 2005); Access for the Disabled, Inc. v. Rosof, No. 805CV1413T30TBM, 2005 WL , at *2 (M.D. Fla. Dec. 28, 2005) U.S.C (a)(1) (2006) U.S.C. 3604(d) (2006) ( It shall be unlawful... [t]o represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. ); 42 U.S.C (2006) ( All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts.... ); 42 U.S.C. 2000e (2006 & Supp. IV 2010) ( It shall be unlawful... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex, or national origin. ). 12 Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 863 (C.D. Cal. 2004) (quoting Rodriguez, 305 F. Supp. 2d. at ).

5 322 Virginia Journal of Social Policy & the Law [Vol. 19:2 monetary damages and the vast number of public accommodations that are non-ada-compliant, disabled citizens do not have strong incentives for protecting their rights under Title III of the ADA. Furthermore, testers are well-suited for the task of enforcement, because the task has been limited to the disabled and the Attorney General s office, and testers become familiar with ADA regulations and the steps necessary to file suit. To ensure that testers are able to sue, Congress could amend Title III of the ADA to make monetary damages available to testers. Alternatively, Congress could simply redefine the legal interest that Title III protects in such a way as to allow testers to seek relief while preventing abusive plaintiffs from taking advantage of federal courts. For instance, in order to guarantee standing for testers, Congress could amend Title III so that it explicitly authorizes suit by anyone who is being denied access to a place of public accommodation in violation of Title III, and who has an intent to return to the offending property either as a bona fide patron, or as a tester. Admittedly, any of these changes would likely result in an increase of lawsuits filed by serial plaintiffs. Revising other provisions of Title III, like the attorney s fee-shifting statute, coupled with the addition of a notification requirement, could potentially curtail aggressive litigation in a manner that does not involve heightened standing scrutiny. Additionally, courts are able to employ various tools in dismissing particularly frivolous cases, beyond the threshold standing requirement. For instance, the vexatious litigant standard, Rule 11 and American Bar Association ( ABA ) sanctions could be applied to prevent abusive suits. Furthermore, utilizing the compliance certification provisions that are already in place could provide a safe harbor for defendants. Employing these mechanisms would permit a corresponding benefit the additional private enforcement of civil rights statutes that often go unenforced. This Note will outline the constitutional and statutory facets of the standing doctrine, and will explore the application of this doctrine to ADA, FHA, and equal employment tester cases. The difference in court treatment between these statutes, it will argue, does not necessarily stem from differences in the statutory language or legislative history of the statutes, but rather practical concerns about the application of Title III of the ADA. The Note will argue that testers satisfy the threshold standing requirements, and that these practical concerns therefore should not be addressed by standing doctrine. While revising Title III of the ADA is likely necessary to guarantee that testers are consistently found to have standing in federal courts, this Note will suggest alternative mechanisms for hampering the negative practical effects of the Title. These mechanisms, many of which are already available to judges and local

6 Spring 2012] Abusive ADA Litigation 323 governments, are a more appropriate solution than heightened standing requirements. I. THE BASICS OF STANDING DOCTRINE Standing analysis is a threshold jurisdictional question. 13 For a federal court to hear the merits of any case, the plaintiff filing the suit must first have standing to sue. This standing requirement has been interpreted to stem from Article III, 2 of the Constitution, which describes the foundations of a case or controversy. 14 The Supreme Court has imposed its own prudential barriers to standing, which may be curtailed by Congress, through the creation of an express statutory right to sue. Statutorily-created rights, therefore, can influence standing analysis. A. CONSTITUTIONAL STANDING THRESHOLD Standing under Article III, 2 of the Constitution requires that, for a case or controversy to exist, a plaintiff must allege personal injury fairly traceable to the defendant s allegedly unlawful conduct and likely to be redressed by the requested relief. 15 Furthermore, the Supreme Court stated in City of Los Angeles v. Lyons that the injury or threat of injury must be both real and immediate, not conjectural or hypothetical and that past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects. 16 A party must have standing at the time a lawsuit is filed. 17 The Court further emphasized the elements of standing for injunctive relief in Lujan v. Defenders of Wildlife by requiring an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical, a causal connection between the injury and the conduct complained of, and a likelihood that the injury will be redressed by a favorable decision. 18 The Court found that some day intentions without any description of concrete plans, or indeed even any specification of when the some day will be do not support a finding of the actual or imminent injury that our cases require Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 102 (1998). 14 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 15 Allen v. Wright, 468 U.S. 737, (1984). 16 City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks and citations omitted). 17 Friends of the Earth v. Laidlaw Envt l. Servs., Inc., 528 U.S. 167, 191 (2000). 18 Lujan, 504 U.S. at (internal quotation marks and citations omitted). 19 Id. at 564.

7 324 Virginia Journal of Social Policy & the Law [Vol. 19:2 B. STATUTORILY-CREATED INJURY While Article III establishes the limits of a plaintiff s ability to file suit, Congress has the power to create causes of action within these limits that are the source both of the legal obligation and of the definition of the class of those entitled to enforce it. 20 In the context of statutorily created rights like those defined in the FHA, Title VII, and the ADA, a standing inquiry must necessarily look to the legal right at issue. Courts often construe statutorily created rights to respect prudential limitations on standing. These prudential limitations require that a plaintiff s injury be distinct from the effects felt by other citizens, that it not rest on the legal rights or interests of third parties, 21 and that it fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. 22 But unlike constitutional limitations, what the Supreme Court calls prudential limitations may be overcome by an express grant by Congress. 23 The Supreme Court stated in Trafficante v. Metropolitan Life Insurance Co., that the statutory language of the FHA, which protects any person claiming to be aggrieved, shows a congressional intention to define standing as broadly as is permitted by Article III of the Constitution. 24 However, in 2011 the Court held in Thompson v. North American Stainless that this same language in Title VII must be construed more narrowly than the outer boundaries of Article III, and applied a more stringent zone of interests test. 25 Because the ADA protects any person who faces discrimination based on their disability, rather than persons aggrieved, it is unclear what the limits of standing under the ADA are. II. APPLICATION OF STANDING DOCTRINE TO TESTERS A. TESTER STANDING IN NON-ADA CONTEXTS 1. Fair Housing Act Testers The Supreme Court has recognized tester standing in the FHA context for testers who face racial discrimination in the search for housing. In Havens Realty Corp. v. Coleman, the Court held that a tester 20 William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 251 (1988). 21 Warth v. Seldin, 422 U.S. 490, 499 (1975). 22 Ass n of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 153 (1970). 23 Warth, 422 U.S. at 501. See also Federal Election Commission v. Akins, 524 U.S. 11, 20 (1998) (holding that Congress intended to protect voters at large from suffering from a deprivation of information, and therefore, the plaintiffs had satisfied any prudential standing requirements) U.S. 205, 209 (1972) (quoting Hackett v. McGuire Bros., 445 F.2d 442, 446 (3d Cir. 1971)) S. Ct. 863, 869, 870 (2011).

8 Spring 2012] Abusive ADA Litigation 325 had standing to sue for racial steering practices in violation of the FHA, where the tester-plaintiff met the Article III standing requirements. 26 The Havens Court looked to the language of the FHA, which protects any person, to determine Congress intent to give standing to testers, as well as bona fide housing-seekers. 27 The Court, in determining that a tester from a fair housing organization had standing after being steered away from housing on four occasions, 28 did not focus on the fact that the FHA awards damages; rather, it focused on 804(d) of the statute, which makes it unlawful to represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. 29 The Havens court interpreted this language to grant any persons the right to truthful information about housing situations. 30 Misinforming a person about housing, even if that person is not interested in living in said housing, would therefore constitute a violation of that right. Since the Havens decision, the Ninth Circuit and the Seventh Circuit have applied Havens and found that FHA testers have standing U.S. 363, (1982). Havens was decided on February 24, 1982, prior to Lujan, which was decided in 1992, and Lyons, which was decided Havens, however, has been consistently applied by the circuit courts in the context of the FHA, Title VII of the Civil Rights Act, and Title II of the ADA, without any indication that Lyons and Lujan have altered the adequacy of tester standing. See Tandy v. City of Wichita, 380 F.3d 1277, 1285 (10th Cir. 2004); Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004); House Ctr., Inc. v. Lowder, 236 F.3d 629, (11th Cir. 2000); Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 292 (7th Cir. 2000). 27 Havens, 455 U.S. at Id. at U.S.C. 3604(d) (2006). 30 Havens, 455 U.S. at 373. Under Akins, the right to information is considered a litigable interest that will support standing in federal courts. Fed. Election Comm n v. Akins, 524 U.S. 11, (1998). 31 City of Chicago v. Matchmaker Real Estate Sales Ctr., 982 F.2d 1086, 1095 (7th Cir. 1992) (holding that testers had standing to sue under the FHA, based on the reasoning of Havens); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1989) (holding that testers had standing to sue under the FHA, based on the reasoning of Havens, despite the fact that testers invite harm to themselves); Village of Bellwood v. Gladstone Realtors, 569 F.2d 1013, 1019 (7th Cir. 1978) (holding that testers had standing under the FHA, due to the importance of private attorneys general in vindicating a policy that Congress considered to be of the highest priority ); see also Harris v. Itzhaki, 183 F.3d 1043, 1050 (9th Cir. 1999) (holding that a tester had standing under the FHA based on Havens, but that her declaratory and injunctive relief claims were moot after she moved away from the area); cf. Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1103 (9th Cir. 2004) (relying on Havens to conclude that disabled testers who sue under the Fair Housing Amendments Act have standing, because

9 326 Virginia Journal of Social Policy & the Law [Vol. 19:2 Additionally, the Havens court held that the fair housing organization had suffered an injury-in-fact, because the defendant s FHA violations had perceptibly impaired [the organization s] ability to provide counseling and referral services. 32 Since the Havens decision, a number of tester organizations have successfully filed suit under the FHA. In these cases, courts have primarily focused on the fact that, because of the defendant s discrimination, resources that would otherwise have been spent on furthering the plaintiff organizations missions were instead diverted towards investigating and counteracting the complained of discrimination Equal Employment Testers Tester standing in the equal employment context is not as clear-cut as FHA tester standing. While two courts have analogized tester standing in the equal employment context to that under the FHA, in Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., the first case to address equal employment testing, the D.C. Circuit found that equal employment testers did not have standing to sue under either 42. U.S.C or Title VII. The court quickly dismissed the plaintiff s 1981 claims by stating that, because the plaintiffs provided false information to the defendant, any potential employment contract with the defendant was void, and [c]ertainly the loss of the opportunity to enter into a void contract... is not an injury cognizable under In considering standing under Title VII, however, the court focused on the fact that Title VII, as of the time of the alleged it protects any person ); Watts v. Boyd Props., Inc., 758 F.2d 1482, 1485 (11th Cir. 1985) (relying on Havens to conclude that fair housing testers had standing to sue under 42 U.S.C. 1982, even if a tester is solely motivated by the desire to challenge the legality of allegedly discriminatory practices). 32 Havens, 455 U.S. at See, e.g., Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) (holding that a fair housing organization with the mission of promoting equal housing opportunities, which conducted testing of housing facilities had standing because it showed a drain on its resources from both a diversion of its resources and frustration of its mission ); Cent. Ala. Fair Hous. Ctr., Inc., v. Lowder Realty Co., 236 F.3d 629, (11th Cir. 2000) (holding that a fair housing organization that diverted its resources to combat the defendant s discrimination had standing to sue under the FHA); Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (holding that a fair housing organization that provided counseling and other services had standing under the FHA for identifying and counteracting defendants advertising practices); Hooker v. Weathers, 990 F.2d 913 (6th Cir. 1993) (holding that a fair housing organization that devoted resources to investigating discriminatory practices had standing); Dwivedi, 895 F.2d at 1526 (holding that a fair housing organization had standing to sue a real estate brokerage for violations of the FHA). 34 Fair Emp t Council v. BMC Mktg. Corp., 28 F.3d 1268, 1271 (D.C. Cir. 1994).

10 Spring 2012] Abusive ADA Litigation 327 discrimination, offered only equitable remedies. 35 Because the plaintiffs failed to assert any intent to return to the defendant to seek employment opportunities, plaintiffs had failed to establish standing. 36 Interestingly, the BMC court, though denying standing to the individual tester under Title VII, held that an equal employment organization had standing because the defendant s discrimination hindered its outreach efforts. 37 The court stated that discrimination by the defendant constituted an injury because it might increase the number of people in need of counseling; similarly, to the extent that [defendant]'s actions have made it harder for minorities to find jobs in greater Washington, [the actions] may have reduced the effectiveness of any given level of outreach efforts. 38 Years later, in Kyles v. J.K. Guardian Security Services, the Seventh Circuit applied the Havens decision in finding tester standing under Title VII. 39 By this time, the Civil Rights Act of 1991 had revised Title VII to include recovery for emotional distress and punitive damages. 40 However, the court in Kyles does not appear to consider damages in determining whether Title VII testers have standing. Indeed, the court primarily focused on the treatment of FHA testers and the similarities between the FHA and Title VII, finding that both statutes take broad aim at discrimination, allow for individuals to act as private attorneys general, and reflect a congressional intent to extend standing to the fullest extent permitted by Article III. 41 As a result, the court stated that Havens... guide[s] us to the conclusion that testers who experience discrimination as they apply for jobs have standing to sue under Title VII. 42 The court reasoned that the two statutes should be given like 35 Id. at Id. at The D.C. Court of Appeals, however, reached the opposite conclusion under the District of Columbia Human Rights Act ( DCHRA ). In Molovinsky v. Fair Employment Council of Greater Washington, Inc., the court relied almost entirely on Havens in holding that equal employment testers had standing to sue under the DCHRA. 683 A.2d 142, 146 (D.C. 1996). However, the DCHRA, though virtually identical in language to Title VII, does offer damages. While the court s holding in Molovinsky cannot be considered influential in the Title III ADA context, the court s focus on Havens suggests a similar analysis. 37 Fair Emp t Council v. BMC Mktg.Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) ( BMC's alleged pattern of discrimination-evidenced by the alleged treatment of the testers-has made the Council's overall task more difficult. ). 38 Id. 39 See Kyles v. J.K. Guardian Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000) (relying on Havens to conclude that employment discrimination testers who were discriminated against had standing to sue under Title VII). 40 Civil Rights Act of 1991, 102(b), 42 U.S.C. 1981a (2006) 41 Kyles, 222 F.3d at Id. at 298.

11 328 Virginia Journal of Social Policy & the Law [Vol. 19:2 construction and application because of their functional equivalen[ce]. 43 The court further remarked that recognizing tester standing would advance the purpose of Title VII, in light of the unique value testers have in providing evidence of discrimination. 44 As a result, the court concluded that employment testers should, like FHA testers, satisfy the Article III injury requirements for standing. 45 Additionally, the Equal Employment Opportunity Commission ( EEOC ) itself has recognized that employment testers have standing under Title VII, 46 and has encouraged tester programs to continue, in light of its own inability to conduct testing programs. 47 As employment discrimination continues to move from the blatant to the subversive, enforcement of Title VII becomes increasingly difficult. Indeed, the filing of suits challenging hiring decisions has continued to decrease dramatically relative to those challenging employee discharge, 48 and Kyles remains the last word on equal employment tester standing. B. ADA TESTER STANDING Despite the success of testers in the FHA and employment discrimination context, ADA testers have been treated with an added level of scrutiny in many courts. In particular, courts have questioned whether testers satisfy Lujan s actual or immediate injury-in-fact requirement for injunctive relief claims, because they may not have an intent to return to the offending site. The cases are divided. In Tandy v. City of Wichita, the Tenth Circuit applied the Havens decision to find that tester standing exists in the context of Title II of the ADA. 49 The majority of courts, however, have required an added level of scrutiny for testers. 43 Id. at Id. at Id. at 300. The court reached this conclusion despite the fact that Title VII does not have any language corresponding to that of the FHA, which grants housing seekers a right to information. 46 Michael Bowling, The Case Against Employment Tester Standing Under Title VII and 42 U.S.C. 1981, 101 MICH. L. REV. 235, (2002). 47 Daniel M. Tardiff, Knocking on the Courtroom Door: Finally an Answer From Within for Employment Testers, 32 LOY. U. CHI. L.J. 909, 961 (2001). 48 Anthony F. Spalvieri, Employment Testers: Obstacles Standing in the Way of Standing Under 1981 and Title VII, 52 CASE W. RES. L. REV. 753, 755 (2002). 49 Tandy v. City of Wichita, 380 F.3d (10th Cir. 2004).

12 Spring 2012] Abusive ADA Litigation When Courts Reject Standing for ADA Testers Generally, when a plaintiff expresses no intent to return to an offending location, courts have found no standing. 50 The Ninth Circuit in Moss v. Comfort Inn Woodland Hills affirmed the district court s finding of no standing to sue under Title III of the ADA, because the testerplaintiff had stated she had no intent to return at the time the complaint was filed, but had since developed an intent to return. 51 For testers that expressed an intent to return to the establishments they were suing, courts still did not automatically grant standing. Generally, courts that have denied standing for these plaintiffs have relied on factual determinations rather than plaintiff assertions. 52 Some courts have applied a set of four factors, sometimes known as the proximity test. Other courts have questioned the credibility of the plaintiff s claim that he or she intends to return, based on the large number of lawsuits he or she has filed as a tester. A number of courts have determined that a plaintiff s status as a tester greatly undercuts his or her statements regarding an intent to return, often before trial even begins. 53 Even when a suit survives the pleadings stage, the credibility of the plaintiff can be questioned once 50 See Wilson v. Costco Wholesale Corp., 426 F. Supp. 2d 1115, (S.D. Cal. 2006) (finding no standing where plaintiff confessed that he has no actual, particular plans to return, and noting that plaintiff s many lawsuits are relevant to his lack of intent to return, but not dispositive) F. App x 717 (9th Cir. 2008). 52 Although at the pleadings stage, courts must generally accept the plaintiff s allegations as true and construe them in the light most favorable to the plaintiffs, relying solely on the pleadings and disregarding affidavits or other materials, Star Scientific Inc. v. R.J. Reynolds Tobacco Co., 174 F. Supp. 2d 388, 391 (D. Md. 2001), if the movant challenges the veracity of the jurisdictional facts, the burden of proving the existence of subject matter jurisdiction lies with the plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The court may then consider exhibits outside the pleadings and is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1993). 53 Molski v. Mandarin Touch Rest., 385 F. Supp. 2d 1042, 1046 (C.D. Cal. 2005) (noting that the plaintiff's extensive litigation history undercuts his credibility and belies an intent to return to [defendant s property] and concluding that [a]s a result, [plaintiff's] professed intent to return to the [property] is insufficient to establish standing. ); Access for the Disabled, Inc. v. Rosof, No. 805CV1413T30TBM, 2005 WL , at *2 (M.D. Fla. Dec. 28, 2005) ( [Plaintiff s] admission that he visited the facility as a tester and intends to visit the facility to verify its compliance or non-compliance with the ADA, does little to support his allegation that he is truly threatened by an immediate future injury. ).

13 330 Virginia Journal of Social Policy & the Law [Vol. 19:2 again at the summary judgment stage. 54 Following a bench trial, the court in Rodriguez v. Investco, L.L.C. harshly stated that Plaintiff's testimony left the distinct impression that he is merely a professional pawn in an ongoing scheme to bilk attorney's fees from the Defendant. 55 This added level of scrutiny distinguishes ADA testers from their FHA and Title VII tester brethren, whose intentions are not generally questioned. a. Application of the Proximity Test Some district courts, in determining whether a plaintiff has met the immediacy requirement of Lujan, have used a four factor test in order to gauge the plaintiff s likely intent to return. The proximity test considers: (1) the proximity of the place of public accommodation to plaintiff s residence; (2) plaintiff s past patronage of defendant's business; (3) the definitiveness of plaintiff s plans to return; and (4) the plaintiff s frequency of travel near defendant. 56 These factors seem to be an attempt to determine the credibility of a plaintiff s statement of an intention to return. 57 Because the credibility of the plaintiff s complaint must be taken as true at the pleadings stage, the proximity test is not an appropriate test for threshold standing inquiries. Even when the test is used post-trial, however, the factors unfairly exclude ADA victims from 54 See e.g., Harris v. Stonecrest Care Auto Center, L.L.C., 472 F. Supp. 2d 1208, 1213 (S.D. Cal. 2007) ( [I]t is impossible to believe he routinely visits the same establishments on each of his visits to San Diego. ); Brother v. Tiger Partner, L.L.C., 331 F. Supp. 2d 1368, (M.D. Fla. 2004) ( [Plaintiff] has professed an intent to return to all fifty-four of the properties he has sued. This is simply implausible. ) F. Supp. 2d 1278, 1285 (M.D. Fla. 2004) ( At trial, Plaintiff was evasive and willfully ignorant, totally lacking credibility. His explanation for his initial visit to the Facility was disingenuous, and he did not convey any honest desire to return there. ). 56 D Lil v. Stardust Vacation Club, No. CIV-S DFL, 2001 WL , at *3 (E.D. Cal. Dec. 21, 2001); see also Judy v. Pingue, No. 2:08-CV-859, 2009 WL , at *3 4 (S.D. Ohio Nov. 25, 2009) (citing Molski, 385 F. Supp. 2d at 1045) (holding that the plaintiff did not have standing based on the proximity test, particularly because the plaintiff s distance from the defendant s place of business becomes especially significant when it is more than 100 miles. ); Molski, 385 F. Supp. 2d at (holding that plaintiff had no standing based on the four proximity test factors). 57 For instance, the court in Kramer v. Midamco considered the proximity test factors in order to determine that there was no evidence that [plaintiff] would be likely to return to the Facility in any capacity other than as a tester. 656 F. Supp. 2d 740, 748, 750 (N.D. Ohio 2009). As such, the court reasoned, injunctive relief would not redress any injury because [plaintiff] has stated that she plans to return to the Facility [only] to monitor compliance... [t]herefore, there is no evidence that [she] would be likely to return once compliance is achieved because there would be no issues for her to monitor. Id. at 750.

14 Spring 2012] Abusive ADA Litigation 331 enforcing their universal rights to access. The purpose of the ADA is to ensure universal access for disabled citizens throughout the country proponents envisioned a world in which the disabled would be able to fully participate in society and patronize stores and restaurants wherever they please. This broad vision is clearly curtailed by the constraints of the proximity test. Denying a disabled plaintiff the right to sue for access to an arbitrary fast food restaurant on an interstate miles from their home prevents disabled citizens from truly partaking in the great American road trip. With such a test in place, the goals of Title III can never fully be achieved. 2. When Courts Find Standing for ADA Testers Though many courts are skeptical of ADA testers, some district courts have used Havens and Tandy to recognize tester standing under Title III. In Tandy, the Tenth Circuit held that testers who had suffered injury on the defendant s public transportation system and who intended to ride the system several times a year in order to test its services had standing to sue under Title II of the ADA. 58 The court based this decision on the Havens decision in the Fair Housing Act context and the fact that the ADA, like the FHA... embodies a congressional intent to eradicate discrimination. 59 The court focused on Title II s protection of qualified individual[s], 60 and stated that [t]he plain language of Title II evinces Congress intent to confer upon a qualified individual with a disability a legal right. 61 Title III of the ADA shares similar language with Title II and the FHA, but does not award monetary relief. The award of damages, however, did not seem to factor into the courts analyses in Havens and Tandy. The Middle District of Florida has therefore extended these cases to Title III. In three separate cases, the district court invoked Havens, Tandy, or Eleventh Circuit FHA tester standing cases to support standing for Title III ADA testers. 62 At least for purposes of a motion to dismiss at 58 Tandy v. City of Wichita, 380 F.3d 1277, (10th Cir. 2004). Though Title II which addresses public transportation systems awards monetary relief, the court held that the tester plaintiffs had standing to sue for prospective relief, as well as damages, and analyzed standing separately. In finding that the tester plaintiffs had standing to sue for prospective relief, the court focused on Havens and the FHA s similarity to Title II. The court did not address standing under Title III of the ADA, which concerns public accommodations. 59 Id. at U.S.C (2006) ( [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. ). 61 Tandy, 380 F.3d at See Dunn v. Gleason Four, Inc., No. 2:07-cv-314-FtM-29SPC, 2007 WL , at *3 (M.D. Fla. Aug. 23, 2007); Bruni v. FMCO, L.L.C., No. 2:06-

15 332 Virginia Journal of Social Policy & the Law [Vol. 19:2 an early stage of proceedings, the court concluded that the plaintiffs had satisfied the Lujan elements by stating that they intended to return if the architectural barriers were removed. 63 a. Refraining from Credibility Inquiries Some courts have been hesitant to make credibility judgments based on skepticism towards serial litigants. The Ninth Circuit in D Lil v. Best Western Encina Lodge and Suites stated that we must be particularly cautious about affirming credibility determinations that rely on a plaintiff's past ADA litigation, and reversed the lower court s finding that plaintiff had no standing. 64 When a tester alleged an intent to return, some courts have allowed the case to proceed beyond a Motion to Dismiss, but noted that the plaintiff s credibility could be called into question in later evidentiary stages, because he or she was a tester. The Central District Court of California stated in Molski v. Arby s Huntington Beach that, [A]t the current pleading stage, when the Court is obligated to accept all material allegations as true, general factual assertions of injury and future harm are sufficient. At successive stages in the litigation, however, [plaintiff] may be required to submit additional evidence to support his standing. 65 cv-293-ftm-29spc, 2007 WL , at *3 (M.D. Fla. Mar. 16, 2007); Bruni v. Fine Furniture by Gordon s, Inc., No. 2:06-cv-456-FtM-29DNF, 2007 WL 28341, at *3 (M.D. Fla. Jan. 3, 2007). 63 See Dunn, 2007 WL , at *6 7; Bruni, 2007 WL , at *9 10; Bruni, 2007 WL 28341, at * F.3d 1031, 1040 (9th Cir. 2008). The court chose not to consider the plaintiff s credibility, and instead looked to her extensive past visits to the city in question, her past patronage of other hotels in the same area, and her specific intent to visit the hotel in question again in finding that the plaintiff had standing. Id. at F. Supp. 2d 938, 947 n.10 (C.D. Cal. 2005); see also Brown v. Showboat Atl. City Propco, L.L.C., No , 2009 WL , at *2 (D.N.J. Mar. 11, 2009) ( Plaintiff also meets all prudential standing requirements since he is asserting his own legal rights and interests, and his interest in remedying disability discrimination falls within the zone of interest the ADA was designed to protect. ); Loskot v. Super Star, No. C , 2007 WL , at *3 (N.D. Cal. June 12, 2007) ( At the pleading stage in this case, however, the Court cannot evaluate Plaintiff's credibility; the fact that he has brought at least three law suits against motels in the Bay Area, allegedly planning to return to each of them, is not sufficient to defeat his ability to establish standing. ); Access 4 All, Inc. v. Chicago Grande, Inc., No. 06 C 5250, 2007 WL , at *8 (N.D. Ill. May 10, 2007) ( [T]he Court will accept [the Plaintiff s allegations] as true at this stage of the proceedings, when no discovery has been afforded that will allow a fair evaluation of the validity of the professed intention to return at the time of the filing of the complaint. ); Cross v. Pac. Coast Plaza Invs., L.P., No. 06 CV 2543 JM, 2007 WL , at *2 (S.D. Cal. Mar. 26, 2007) ( [A]t the pleading stage, Plaintiff need only make sufficient

16 Spring 2012] Abusive ADA Litigation 333 b. Testers as Bona Fide Patrons In contrast, some courts side-stepped the issue by finding that the plaintiffs visited the property in question not only as a tester, but also as a bona fide patron, and that the plaintiffs therefore had standing as individuals. Through this legal separation, the courts chose not to address the tester standing issue in the context of Title III of the ADA Do ADA Tester Organizations Have A Better Chance? At first glance, it would seem that ADA tester organizations should fare better in federal court than their individual members would. After all, if an organization s goal is to remedy noncompliance, and its resources are consumed by ferreting out defendants noncompliance, the organization would seem to suffer an injury from continued noncompliance. ADA tester organizations, however, have only achieved allegations of injury.... [T]he number of ADA lawsuits filed is relevant to, but not dispositive of, resolving on summary judgment whether the plaintiff has standing. ). 66 Disabled Patriots of Am., Inc. v. City of Trenton, No. 07-CV-3165, 2008 WL , at *3 n.2 (D.N.J. Sept. 24, 2008) ( Standing based on tester status alone is not being addressed here because if [plaintiff] has individual standing, ruling on tester standing is not necessary. ); see also Disabled Patriots of Am., Inc. v. Midamco, Inc., No. 1:07 CV 3164, 2008 WL , at *1 2 (N.D. Ohio June 5, 2008) ( The Complaint clearly articulates her intent to return in her role as a compliance tester, and at least strongly implies that her intent to return is not based solely on her role as a tester, but that she would return to use the facilities in her individual capacity. This is sufficient to allege standing at this stage of the litigation, even without deciding whether standing may be obtained if an individual s only contact with a facility is through their role as a compliance tester. ); Molski v. Price, 224 F.R.D. 479, 484 (C.D. Cal. 2004) ( [T]he complaint suggested that plaintiff visited each restaurant with the dual motivation of availing himself of the goods and services and verifying the restaurant s ADA compliance. Such dual motivation... sufficed to make the plaintiff a bona fide patron. ) (internal quotations omitted); Clark v. McDonald s Corp., 213 F.R.D. 198, 227 (D.N.J. 2003) ( The Court does not reach this argument for a simple reason: there is no basis in the amended complaint to assume that [the plaintiff s] sole motivation, in visiting any McDonald s restaurant, was to test the Defendants ADA compliance. ); Colorado Cross Disability Coal. v. Hermanson Family, Nos. Civ.A. 96-WY AJ, 1997 WL , at *6 (D. Colo. Aug. 5, 1997) ( It is not necessary that plaintiff have specific plans to shop at any of the four shops at any specific date. His averments that he intends and plans to shop in Larimer Square are sufficient for purposes of this motion to support a determination that plaintiff has standing. The presence of the stairs demonstrates that the buildings are not readily accessible to those in wheelchairs, a group that includes plaintiff all of the time in all circumstances. The Court finds that the legislative purposes underlying the enactment of the ADA will be fulfilled if the plaintiff is permitted to pursue this cause of action. ).

17 334 Virginia Journal of Social Policy & the Law [Vol. 19:2 marginal success in federal courts. In fact, organizations have had varying success in suits to enforce the FHA, Title VII, and the ADA, though courts have generally applied the same analysis to each. In the ADA context, organizations can be granted standing two ways: the organization itself may claim an economic injury by the civil rights violations, or it may sue on behalf of its members. In Hunt v. Washington State Apple Advertising Commission, the Supreme Court stated that an organization could bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. 67 Generally the first two elements of Hunt are not a challenge to civil rights organizations, while the third element has proven problematic. Of the organizations that were found to have standing, many did so by satisfying, in the court s opinion, the Hunt requirements for filing suit on behalf of their members, and not because they had suffered an injury in their own rights. 68 Many courts denied standing by determining that the plaintiff organization had failed to specifically claim any injury to the organization itself. 69 In some cases, this was due to a failure on the part U.S. 333, 343 (1977) (emphasis added). 68 See, e.g., Disabled Patriots of Am., Inc., v. Lane Toledo, Inc., 325 F. Supp. 2d 837, 841 (N.D. Ohio 2004) (holding that the association had standing, based on the Hunt requirements, but only for those injuries actually suffered by its members); Access for the Disabled, Inc. v. Pohlmann, No. 2:06-cv-178-FtM- 99SPC, 2007 WL , at *3 (M.D. Fla. Feb. 2, 2007) (holding that, because individual members have standing to sue, the association had standing under the Hunt requirements). The only case in which an organization was found to have suffered an injury in its own right was Equal Rights Center v. Equity Residential, where the organization conducted investigations to prove that defendant s properties were in violation of both the FHA and the ADA, and the Court chose to award standing under FHA, and withhold judgment under the ADA. 483 F. Supp. 2d 482, 487 (D. Md. 2007) ( Moreover, the very fact that plaintiff undertook a nationwide investigation of defendants' violations is proof positive of plaintiff's concrete injury; the resources devoted to the two-year investigation were clearly diverted. Nothing more is required. ). 69 See, e.g., Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, (D.C. Cir. 2011) (holding that the evidence provided by plaintiff organization to show an injury did not set forth specific facts demonstrating an injury-in-fact due to the lateness of filing and ambiguity of the evidence); Small v. Gen. Nutrition Co., 388 F. Supp. 2d 83, 95 (E.D.N.Y. 2005) (holding that plaintiff organization did not have standing in its own right because plaintiff only alleged a de minimis amount of costs as a result to the particular defendant s discrimination);

18 Spring 2012] Abusive ADA Litigation 335 of the organization to allege any injury, while in others the court seemed to express distaste for the ambiguity of the organization s allegations. Notably, however, many courts were particularly harsh towards organizations whose primary purpose is to bring ADA lawsuits. For instance, in Goldstein v. Costco Wholesale Corp., the court found that a disability rights organization did not have standing to bring suit where the organization s primary source of revenue was ADA litigation. 70 Similarly, in Clark v. Burger King Corp., the court denied standing to an organization whose primary purpose was to bring lawsuits under the ADA. 71 Unfortunately, tester organizations are often no more successful than their individual members are in filing suit in the ADA context due to a skepticism by the courts of the motivations of the organizations. The Supreme Court has held that an organization may have standing on its own if the organization has suffered a concrete and demonstrable injury to the organization s activities, one that constituted far more than simply a setback to the organization s abstract social interests. 72 As a result, the fate of civil rights tester organizations and individual testers often depends on the nature of the civil right being enforced. In ADA Belevender v. Magi Enters., Inc., No. 3:06 CV 1595, 2007 WL , at *5 (N.D. Ohio Feb 28, 2007) (holding that the plaintiff association had failed to satisfy the Hunt requirements, and did not allege an injury-in-fact because it merely repeated its plaintiff member s claims); Equal Access For All, Inc., v. Hughes Resorts, Inc., No. 504CV178MCR, 2005 WL , at *7 (N.D. Fla. Aug 10, 2005) (holding that plaintiff organization had not satisfied the Hunt requirements, and that the organization had not presented allegations which satisfy the constitutional standing requirements which apply to claims for injunctive relief ); Ass n for Disabled Ams., Inc. v. Claypool Holdings, L.L.C., No. IP C-T/G, 2001 WL , at *14 (S.D. Ind. Aug. 06, 2001) (holding that plaintiff association did not have standing because it failed to produce evidence that it had been injured by defendant s violations). Other courts, however, have denied standing based on a failure to meet the Hunt requirements. See, e.g., Ass n for Disabled Ams., Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, (S.D. Fla. 2001) (holding that the association did not have standing to maintain a separate claim on behalf of its members because any finding of an ADA violation requires proof as to each individual claimant. ) (quoting Concerned Parents to Save Dreher Park Ctr. v. City of W. Palm Beach, 884 F. Supp. 487, 488 (S.D. Fla. 1994)) F. Supp. 2d 766, (E.D. Va. 2003) F. Supp. 2d 334, (D.N.J. 2003); see also Clark v. McDonald's Corp., 213 F.R.D. 198, (D.N.J. 2003) (holding that nonprofit association that sought to increase awareness of accessibility issues under Title III of the ADA was subject to prudential standing requirements; allowing association to sue in its own right would thwart judicial restraint and lead to ruling on abstract grievances); Claypool Holdings, L.L.C., 2001 WL , at *14, *15 (holding that the plaintiff association did not have standing because the association s primary purpose was to file ADA lawsuits, and did not have any counseling or referral services). 72 Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).