NELF Urges US Supreme Court Review of Tester Standing
ARGUING THAT THE UNITED STATES SUPREME COURT SHOULD GRANT CERTIORARI TO DECIDE WHETHER A “TESTER” UNDER THE AMERICANS WITH DISABILITIES ACT, WHO VISITS PLACES OF PUBLIC ACCOMMODATION MERELY TO IDENTIFY POTENTIAL ADA VIOLATIONS, CAN ESTABLISH THE NECESSARY CONCRETE INJURY UNDER ARTICLE III OF THE UNITED STATES CONSTITUTION.
Kiser et al. v. Langer (United States Supreme Court, on certiorari)
NELF has filed an amicus brief in support of certiorari in this case. In Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023), the Supreme Court was poised to decide whether an individual has Article III standing to sue a place of public accommodation for alleged noncompliance with the ADA, when she has no intention to visit that place as a patron. However, an unanticipated turn of events rendered that case moot. This case now before the Court presents the same issue of ADA tester standing. Accordingly, certiorari should be granted to decide that issue.
In Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023), the Court was poised to decide whether an individual has Article III standing to sue a place of public accommodation for alleged noncompliance with the ADA, when she has no intention to visit that place as a patron. However, an unanticipated turn of events rendered that case moot. This case now before the Court presents the same issue of ADA tester standing. Accordingly, certiorari should be granted to decide that issue.
The District Court in this case conducted a bench trial and made detailed, first-hand findings from which it rejected the credibility of the respondent’s testimony that he intended to visit the petitioners’ commercial property as a customer. The court concluded that the respondent’s sole motivation, all along, was to visit the petitioners’ property as an ADA tester.
In a split decision, a panel of the Ninth Circuit erred when it rejected the trial court’s findings as “clearly erroneous,” under Fed. R. Civ. P. 52. Based on this erroneous ruling, the panel majority wrongly concluded that the respondent was a thwarted customer of the petitioners’ property who established Article III standing.
In the alternative, the panel majority also held that the respondent established Article III standing as an ADA tester. The court concluded that the respondent’s motivation in returning to the petitioners’ property was irrelevant under Article III, according to Ninth Circuit precedent interpreting Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
Therefore, this case is a strong vehicle for deciding whether an ADA tester has Article III standing. The District Court reached the unassailable conclusion that the respondent only intended to visit the petitioners’ property as a tester, and the Ninth Circuit held that the respondent had Article III standing as a tester.
It is difficult to see how an ADA tester could establish a concrete harm required under Article III, let alone state a claim recognized under the ADA. Unlike an individual with disabilities who is a thwarted customer–Congress’s area of concern–a tester does not seek to gain access to a place of public accommodation to enjoy the benefits of the goods or services offered there. A tester is not personally harmed by any unlawful structural barriers to entry. His own ADA rights are not violated. He is not personally denied equal treatment by the defendant’s alleged discriminatory conduct.
Instead, a tester is essentially a concerned but unharmed observer seeking to enforce the ADA rights of others. An uninjured tester’s attempted private enforcement of the law exceeds Article III’s jurisdictional limits.
Such private enforcement of the law would also intrude upon the Department of Justice’s exclusive, and politically accountable, power to enforce the ADA on behalf of the general public, under Article II. In this case, for example, rather than suing the petitioners, a Government official could have simply engaged them in a productive dialogue to make any necessary changes to their parking lot.