Appeal: 11-1191 Document: 12 Date Filed: 05/03/2011 Page: 1 of 60bbi.syr.edu/drba/docs/legal_bank/nfb_appeal_daniels... · 2013-03-05 · §§ 1331 and 1343, as the civil rights claim

NO. 11-1191

______________________________________________

In the United States Court of Appeals for the Fourth Circuit

_______________________________________________

Gilroy J. Daniels, Sr.,

Appellant,

v.

Arcade, L.P.,

Appellee.

On Appeal from the United States District Court for the District of Maryland

_____________________________________________

Brief of Appellant

_____________________________________________

Brien Penn Jessica Weber The Law Office of Brien Penn, LLC Francis D. Murnaghan 3060 Washington Road, Suite 260 Appellate Advocacy Fellow Glenwood, MD 21738 Public Justice Center (410) 914-7366 1 N. Charles St., Suite 200

Baltimore, MD 21201 Co-Counsel for Appellant (410) 625-9409

Co-Counsel for Appellant

May 3, 2011

Appeal: 11-1191 Document: 12 Date Filed: 05/03/2011 Page: 1 of 60

TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF ISSUES .......................................................................................1 STATEMENT OF THE CASE..................................................................................2 STATEMENT OF FACTS ........................................................................................3 SUMMARY OF THE ARGUMENT ........................................................................4 STANDARD OF REVIEW .......................................................................................5 ARGUMENT .............................................................................................................7 I. THE DISTRICT COURT ERRED IN ASSESSING STANDING UNDER

AN INAPPROPRIATELY RIGOROUS ANALYSIS....................................7 A. The Article III Standing Doctrine ..............................................................8

B. Mr. Daniels’s Factual Allegations Are Sufficient to Establish Article III

Standing at the Pleadings Stage................................................................10

C. The Factors Relied Upon by the District Court in Assessing the Credibility of Mr. Daniels’s Factual Allegations Establishing Standing Are Antithetical to the Language and Purpose of the ADA.....................21

1. ADA Litigants’ History of Past Patronage, Definitiveness of

Plans to Return, and Frequency of Travel to Inaccessible Public Accommodations Should Not Affect Their Standing to Bring Suit................................................................................23

2. Individuals with Disabilities Should Not Be Penalized for

Enforcing the ADA and Promoting Increased Accessibility by Filing Multiple Lawsuits ........................................................27

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3. Consideration of an ADA Plaintiff’s Proximity to an Inaccessible Public Accommodation Is Contrary to the Language and Purpose of the ADA........................................36

II. EVEN IF THE DISTRICT COURT’S STANDING INQUIRY WERE

CORRECT, MR. DANIELS SATISFIED THE VARIOUS FACTORS ARTICULATED BY THE LOWER COURT..............................................41

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT MR.

DANIELS’S ALLEGED INJURY WAS NOT FAIRLY TRACEABLE TO ARCADE BECAUSE THE FACTUAL QUESTION OF WHO OWNS OR LEASES LEXINGTON MARKET IS DISPUTED .....................................45 A. The Parties to this Lawsuit Dispute the Material Factual Issue of Whether

Arcade Owns or Leases Part, if Not All, of Lexington Market ...............46 B. If, as Mr. Daniels Alleges, Arcade Owns or Leases Lexington Market,

His Injury will be Fairly Traceable to Arcade..........................................48 CONCLUSION........................................................................................................50 REQUEST FOR ORAL ARGUMENT ...................................................................50 CERTIFICATE OF COMPLIANCE.......................................................................52 CERTIFICATE OF SERVICE ................................................................................52

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TABLE OF AUTHORITIES

CASES America v. Preston, 468 F. Supp. 2d 118 (D.D.C. 2006) ........................................34 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................12 Betancourt v. Federated Dep’t Stores, 732 F. Supp. 2d 693 (2010) .................16, 25 Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009) .................................................6, 10 Bonds v. Leavitt, 629 F.3d 369 (4th Cir. 2011) .....................................................6, 7 Bragdon v. Abbott, 524 U.S. 624 (1998) .................................................................49 Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health and Human Res., 532 U.S. 598 (2001)...........................30 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........................................... passim Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003) .............................16, 25 Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010)....................6 Day v. McDonough, 547 U.S. 198 (2006) ...............................................................43 Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir. 2003) ...................15, 25, 42 Equal Rights Center v. Post Props., – F.3d –, No. 09-5359, 2011 WL 781061 (D.C. Cir. March 8, 2011) ..........................................................11 Evans v. B.F. Perkins Co., 166 F.3d 642 (4th Cir. 1999)..........................................6 Evers v. Dyer, 358 U.S. 202 (1958)...................................................................26, 33 Equity in Athletics, Inc. v. Dep’t of Educ., No. 10-1259, 2011 WL 790055 (4th Cir. Mar. 8, 2011)....................................................10, 14, 50

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Finlator v. Powers, 902 F.2d 1158 (4th Cir. 1990) ...................................................9 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).......................................................................................9, 16, 17 Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008)...............................................6 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)....................................33, 34 Honig v. Doe, 484 U.S. 305 (1988) .........................................................................18 Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp. 698 (D. Or. 1997) ............................................................................................................26 Judy v. Arcade, L.P., No. 10-607, 2011 WL 345867 (D. Md. Feb. 2, 2011).................................................................................................2 Kyles v. J.K Guardian Sec. Servs., Inc., 222 F.3d 289 (7th Cir. 2000) ...................34 Linda R.S. v. Richard D., 410 U.S. 614 (1973) .......................................................12 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................... passim Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007) .............. passim New York v. United States, 505 U.S. 144 (1992).....................................................40 Northeastern Fla. Chapter of the Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993) ................................15 Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065 (D. Haw. 2000) .....................25 Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002)..................15 Pittston Co. v. United States, 199 F.3d 694 (4th Cir. 1999)....................................43 Saenz v. Roe, 526 U.S. 489 (1999) ..........................................................................41 Shapiro v. Thompson, 394 U.S. 618 (1969).............................................................40

iv


Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003).................................33, 35 Simmons v. United Mortgage & Loan Inv., LLC, 634 F.3d 754 (4th Cir. 2011)............................................................................................................6 Sledge v. J.P. Stevens & Co., 585 F.2d 625 (4th Cir. 1978)....................................34 Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004)..................34, 35 Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000) ..............................................25 Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) ......................................33 Tcherepnin v. Knight, 389 U.S. 332 (1967).............................................................42 Teamsters v. United States, 431 U.S. 324 (1977) ....................................................24 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) ........................10, 29 United States v. Guest, 383 U.S. 745 (1966) ...........................................................40 United States v. Lopez, 514 U.S. 549 (1995)...........................................................39 Warth v. Seldin, 422 U.S. 490 (1975) ............................................................9, 11, 43 Watts v. Boyd Props., Inc., 758 F.2d 1482 (11th Cir. 1985) ...................................34 Williams v. United States, 50 F.3d 299 (4th Cir. 1995).............................................6 Wilson v. Pier 1 Imports (US), Inc., 411 F. Supp. 2d 1196 (E.D. Cal. 2006) .........36

STATUTES AND REGULATIONS 28 U.S.C. § 1331........................................................................................................1 28 U.S.C. § 1343........................................................................................................1 28 U.S.C. § 1291........................................................................................................1

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42 U.S.C. § 12101........................................................................................22, 37, 39 42 U.S.C. § 12181 ......................................................................................................1 42 U.S.C. § 12182........................................................................................12, 13, 48 42 U.S.C. § 12188............................................................................................ passim Fed. R. Civ. P. 12 ..............................................................................................2, 5, 6 Fed. R. Civ. P. 15 .....................................................................................................43 U.S. Const. art. 1, § 8, cl. 3 ......................................................................................40

OTHER AUTHORITIES

136 Cong. Rec. E1913-01(daily ed. May 22, 1990) ................................................24 American Heritage Dictionary 1521 (3d ed. 1996) .................................................42 Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1 (2006) .........30, 31, 32 Ruth Colker, ADA Title III: A Fragile Compromise, 21 Berkeley J. Emp. & Lab. L. 377 (2000) .............................................................27 H.R. Rep. 101-485 (1990)................................................................................ passim Kelly Johnson, Note, Testers Standing Up for Title III of the ADA, 59 Case W. Res. L. Rev. 683 (2009) .......................................................................29 Remarks of President George Bush at the Signing of the Americans with Disabilities Act, available at http://www.eeoc.gov/eeoc/history/35th/videos/ ada_signing_text.html (last visited Apr. 25, 2011)..................................................38 U.S. Dep’t of Justice, Additional Information on the Certification Process, available at http://www.ada.gov/certinfo.htm (last visited Apr. 24, 2011) ............31

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vii

U.S. Dep’t of Justice, Civil Rights Division, The Americans with Disabilities Act: Title III Technical Assistance Manual § III-1.2000 (1993)..........49 Michael Waterstone, The Untold Story of the Rest of the Americans with Disabilities Act, 58 Vand. L. Rev. 1807 (2005) ..........................................28, 30, 32


STATEMENT OF JURISDICTION

The United States District Court for the District of Maryland (“District

Court”) had subject matter jurisdiction over this civil action pursuant to 28 U.S.C.

§§ 1331 and 1343, as the civil rights claim arose under the laws of the United

States, specifically Title III of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12181 et seq.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 to hear this appeal

from the District Court’s final decision and order entered on February 1, 2011,

granting the Appellee’s motion to dismiss. On February 28, 2011, Appellant timely

filed a notice of appeal with the Clerk of the District Court.

This appeal is from a final judgment that disposes of all of Appellant’s

claims.

STATEMENT OF ISSUES

I. Did the District Court err in concluding that Appellant Gilroy J. Daniels,

Sr. lacked standing to enforce his rights under the ADA because he

lacked a concrete and particularized, actual or imminent injury, despite

his allegations that he has a disability, Lexington Market is not accessible

to him, and that he intends to return to the market?

II. Did the District Court err in concluding that Mr. Daniels lacked standing

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to enforce his rights under the ADA because he did not adequately allege

that his injury was fairly traceable to Arcade, L.P. (“Arcade”), when the

factual question of whether Arcade owns or leases part, if not all, of

Lexington Market is disputed?

STATEMENT OF THE CASE

On March 10, 2010, Jeffrey Joel Judy filed suit in the U.S. District Court for

the District of Maryland against Arcade alleging a violation of Title III of the

Americans with Disabilities Act (“ADA”). On July 23, 2010, Arcade moved to

dismiss the original complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

An amended complaint was filed on August 9, 2010, in which Mr. Daniels joined

as an additional plaintiff. Arcade moved to dismiss the amended complaint on

August 27, 2010, again pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Holding

that neither Mr. Judy nor Mr. Daniels had standing to enforce their rights under

Title III of the ADA, the District Court dismissed the action on February 1, 2011.

See Judy v. Arcade, L.P., No. 10-607, 2011 WL 345867 (D. Md. Feb. 2, 2011). Mr.

Daniels now appeals the District Court’s order dismissing his action against

Arcade.

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STATEMENT OF FACTS Following a stroke, Mr. Daniels lost the ability to use his lower limbs to

walk. J.A. 12. He now uses a wheelchair for mobility. J.A. 12. Mr. Daniels is a

resident of Pasadena, Maryland and shops regularly at Lexington Market, which is

a twenty-minute drive from his home. J.A. 13-14, 34. Lexington Market is a

historic public market that sells fish, produce, and baked goods, among other

items, and is located in downtown Baltimore, Maryland. J.A. 52. The market is one

of Baltimore’s major tourist attractions and has been a “focal point of the

community and visitors from afar for almost 225 years.” J.A. 49. Lexington

Market encompasses several city blocks and includes the properties located at 400,

403, 421, and 423 West Lexington Street. J.A. 28. Arcade concedes that it owns

403, 421, and 423 West Lexington Street. J.A. 24. Appellant thus alleged that

Arcade owns, leases, and/or operates part, if not all, of Lexington Market. J.A. 12.

Although Mr. Daniels shops regularly at Lexington Market and would like

to continue to do so, the market remains largely inaccessible to him. J.A. 13-14.

Examples of some of the architectural barriers that exclude wheelchair users such

as Mr. Daniels from enjoying the market include an inaccessible route to the

entrance, inaccessible ramps throughout the facility due to excessive slopes and

lack of handrails, inaccessible restrooms due to high urinals, and inaccessible

3


counters due to excessive height and placement of amenities out of reach for

wheelchair users. J.A. 14. As alleged in the complaint, correcting these barriers to

allow Mr. Daniels and other wheelchair users to enjoy Lexington Market would be

readily achievable, reasonably feasible, and easily accomplishable and would not

place an undue burden on Arcade. J.A. 14. Although Mr. Daniels continues to rely

on a wheelchair for mobility and Lexington Market remains inaccessible to him,

Mr. Daniels intends to return to Lexington Market, both to shop and to test whether

the market is in compliance with the ADA’s accessibility requirements. J.A. 14.

SUMMARY OF THE ARGUMENT

The district court erroneously dismissed Mr. Daniels’s lawsuit for lack of

standing. Mr. Daniels satisfied the Article III standing requirements by alleging

that, as an individual with a disability, he was denied access to Lexington Market

because of architectural barriers and thus suffers an immediate and ongoing injury.

To the extent that Mr. Daniels also needed to demonstrate the likelihood of future

injury through repeated visits to Lexington Market, the court was required to

accept his allegations of intent to return to the market as true in ruling on a motion

to dismiss. Yet the court failed to do so and improperly questioned the credibility

of Mr. Daniels’s allegations by analyzing several factors designed to unearth what

it considered to be Mr. Daniels’s true intentions. In addition to their improper

4


function, these factors dangerously undermine both the language and purpose of

the ADA, severely restricting Congress’s grant of a broad remedial cause of action

to individuals with disabilities. Even if this Court concludes that application of

these factors was appropriate, Mr. Daniels alleged sufficient facts to satisfy each

one.

Furthermore, the district court erred in dismissing Mr. Daniels’s complaint

for lack of standing because of the existence of a material factual dispute directly

bearing on the question of whether Mr. Daniels’s injury is traceable to Arcade. Mr.

Daniels alleged that Arcade owned, leased, or operated Lexington Market and, in

response, Arcade admitted that it owns properties located within the building Mr.

Daniels contends is a significant portion of Lexington Market. Whether Lexington

Market, which encompasses multiple city blocks, occupies those portions of the

building owned by Arcade remains factually disputed. This factual dispute is

material because, if Arcade either owns or rents part of Lexington Market, it could

be found liable under Title III of the ADA and Mr. Daniels’s injury would thus be

directly traceable to Arcade. Therefore, Mr. Daniels respectfully asks this Court to

reverse the dismissal of his lawsuit.

STANDARD OF REVIEW

This Court reviews de novo a district court's decision granting a motion to

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dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) or

failure to state a claim upon which relief can be granted under Fed. R. Civ. P.

12(b)(6). See Simmons v. United Mortgage & Loan Inv., LLC, 634 F.3d 754, 762

(4th Cir. 2011); see also Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (“We

review a district court’s dismissal for lack of standing de novo”). Although the

party asserting jurisdiction bears the burden of proving subject matter jurisdiction

in response to a Rule 12(b)(1) motion to dismiss, this Court may affirm a dismissal

for lack of subject matter jurisdiction “only if the material jurisdictional facts are

not in dispute and the moving party is entitled to prevail as a matter of law.” Evans

v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks

and citation omitted); Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).

In reviewing a dismissal based on failure to state a claim upon which relief

can be granted, this Court must “accept as true all of the factual allegations

contained in the complaint” and “focus only on the legal sufficiency of the

complaint.” Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011); Giarratano v.

Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “A complaint ‘need only give the

defendant fair notice of what the claim is and the grounds upon which it rests.’”

Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)

(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A complaint

6


should survive dismissal if it contains “enough facts to state a claim to relief that is

plausible on its face.” Bonds, 629 F.3d at 385 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

ARGUMENT

I. THE DISTRICT COURT ERRED IN ASSESSING STANDING

UNDER AN INAPPROPRIATELY RIGOROUS ANALYSIS.

In dismissing Mr. Daniels’s cause of action against Arcade, the district court

held that Mr. Daniels lacked standing to enforce his right to accessible public

accommodations under the ADA. Although Mr. Daniels alleged that he was

injured by being denied access to goods and services throughout Lexington

Market, in violation of the ADA, the court concluded that Mr. Daniels had failed to

adequately allege the “concrete and particularized” and “actual or imminent” injury

necessary to establish standing under Article III of the United States Constitution.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In so holding, the

district court misconstrued the requirements of Article III standing, subjecting Mr.

Daniels to an unduly restrictive standing analysis.

In addition to misinterpreting the standing doctrine in a manner that renders

it exceedingly difficult for civil rights litigants such as Mr. Daniels to enforce their

statutory rights, the district court erroneously refused to accept Mr. Daniels’s

7


factual allegations regarding his standing to bring suit as true. Instead, the court

below improperly second-guessed Mr. Daniels’s allegations regarding his intention

to return to Lexington Market by assessing several factors designed to evaluate the

credibility of Mr. Daniels’s stated intentions. At the motion to dismiss stage,

however, the court must accept the plaintiff’s well-pleaded allegations regarding

standing as true, rather than undertake its own determination of credibility. See id.

at 561. Thus, the district court erred in discounting Mr. Daniels’s allegations

regarding his intention to return to Lexington Market in the future.

Furthermore, the criteria upon which the district court relied in assessing the

veracity of Mr. Daniels’s allegations are inappropriate in the context of evaluating

standing to enforce one’s rights under the ADA. Factors such as a plaintiff’s

proximity to and prior patronage of a discriminatory public accommodation or

history of previous litigation under the ADA are irrelevant to the Article III

standing analysis. Indeed, such criteria are antithetical to the ADA’s purpose of

ending the isolation and segregation of individuals with disabilities by enhancing

the accessibility of public accommodations throughout the United States.

A. The Article III Standing Doctrine.

The doctrine of standing serves to identify those disputes that can properly

be considered “cases” or “controversies” under Article III of the United States

8


Constitution, and thus, are appropriate for judicial review. See Lujan, 504 U.S. at

560. At the core of the constitutional standing requirement is whether “the plaintiff

has alleged such a personal stake in the outcome of the controversy as to warrant

his invocation of federal-court jurisdiction and to justify exercise of the court’s

remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975)

(internal quotation marks omitted).

To establish standing, “a plaintiff must show (1) [he] has suffered an ‘injury

in fact’ that is (a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly traceable to the challenged

action of the defendant; and 3) it is likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000). These three requirements are

generally referred to as “injury-in-fact, causation, and redressability, and they are

central to any discussion of standing.” Finlator v. Powers, 902 F.2d 1158, 1160

(4th Cir. 1990). An injury is “particularized” if it affects the plaintiff in “a personal

and individual way.” Lujan, 504 U.S. at 560 n.1.

In the context of civil rights litigation, the Supreme Court has held that

where private enforcement suits “are the primary method of obtaining compliance

with the Act” and where Congress has defined discrimination broadly, Article III

9


standing should be construed as widely as possible. Trafficante v. Metropolitan

Life Ins. Co., 409 U.S. 205, 212 (1972) (noting that vitality can be given to the

Civil Rights Act of 1968 “only by a generous construction” of standing). This

broad doctrine of standing in civil rights cases has been applied to plaintiffs

seeking both monetary and injunctive relief. Id. at 209. In addition, a court should

“assume[] the merits of a dispute will be resolved in favor of the party invoking

[the court’s] jurisdiction in assessing standing.” Equity in Athletics, Inc. v. Dep’t of

Educ., -- F.3d --, No. 10-1259, 2011 WL 790055, at *4 (4th Cir. Mar. 8, 2011).1

B. Mr. Daniels’s Factual Allegations Are Sufficient to Establish Article III

Standing at the Pleadings Stage. Mr. Daniels’s allegations in the amended complaint demonstrate that he has

adequately pleaded an injury in fact that is concrete and particularized, as well as

actual or imminent. Mr. Daniels alleges that he is “a qualified individual with a

disability under the ADA” because of his mobility impairment. J.A. 12. He alleges

that he has “visited [Lexington Market] and plan[s] to return to the [market] in the

10

1 Appellant does not analyze prudential standing limitations because such concerns were not addressed by the district court. Nevertheless, as an individual with a disability asserting that he was personally discriminated against by Arcade, Mr. Daniels easily satisfies the three common prudential constraints: (1) the asserted harm in this case is personal, rather than a “generalized grievance”; (2) Mr. Daniels asserts his own legal rights through this lawsuit, not the rights of third parties; and (3) Mr. Daniels’s claim falls within the “zone of interests” Congress intended to protect through the ADA. See Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009).


near future.” J.A. 13. Further, Mr. Daniels alleges, he has “experienced serious

difficulty accessing the goods and utilizing the services [within Lexington Market]

due to . . . architectural barriers.” J.A. 13. According to Mr. Daniels’s complaint,

he “continue[s] to desire to visit the [market], but continue[s] to experience serious

difficulty due to the barriers . . . .” J.A. 13. Thus, he alleges, Arcade “has

discriminated and continues to discriminate” against him by denying him the

benefits of Lexington Market’s goods and services because of architectural barriers

to accessibility. J.A. 13-14. In addition, Mr. Daniels alleges that he intends to

return to Lexington Market as both a patron and an ADA tester. J.A. 13-14.

The district court should have accepted these allegations as true when

considering Arcade’s motion to dismiss on the basis of standing. See Warth v.

Seldin, 422 U.S. 490, 502 (1975) (“For purposes of ruling on a motion to dismiss

for want of standing, both the trial and reviewing courts must accept as true all

material allegations of the complaint, and must construe the complaint in favor of

the complaining party.”). “At the pleading stage, general factual allegations of

injury resulting from the defendant's conduct may suffice, for on a motion to

dismiss [the court] presum[es] that general allegations embrace those specific facts

that are necessary to support the claim.” Lujan, 504 U.S. at 561 (internal quotation

marks omitted); see Equal Rights Center v. Post Props., – F.3d –, No. 09-5359,

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2011 WL 781061, at *3 n.3 (D.C. Cir. March 8, 2011) (noting that in analyzing

standing, “the burden imposed on a plaintiff at the pleading stage is not onerous”);

see also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed

even if it strikes a savvy judge that actual proof of those facts is improbable . . . .”).

Based upon Mr. Daniels’s well-pleaded complaint, therefore, the district

court should have held that Mr. Daniels adequately alleged that he suffers an

ongoing injury sufficient to confer standing because his statutory right not to be

“discriminated against on the basis of disability in the full and equal enjoyment” of

Lexington Market has been violated. 42 U.S.C. § 12182(a). As the Supreme Court

has held, Congress is empowered to “enact statutes creating legal rights, the

invasion of which creates standing, even though no injury would exist without the

statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); see also Lujan,

504 U.S. at 578 (citing Linda R.S. and noting that Congress may elevate “to the

status of legally cognizable injuries concrete, de facto injuries that were previously

inadequate in law”). In his concurrence in Lujan, Justice Kennedy observed that

where Congress articulates a new injury giving rise to a cause of action, it “must at

the very least identify the injury it seeks to vindicate and relate the injury to the

class of persons entitled to bring suit.” Id. at 580 (Kennedy, J., concurring). The

ADA does just this.

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Title III of the ADA identifies the injury to be remedied as the denial of

equal opportunity to individuals with disabilities. See 42 U.S.C. § 12182(a), (b)

(prohibiting places of public accommodation from “subject[ing] an individual on

the basis of disability . . . to a denial of the opportunity of the individual or class to

participate in or benefit from the goods, services, facilities, privileges, advantages,

or accommodations of an entity”) (emphasis added). The ADA’s focus on equality

of opportunity is further evidenced by the title Congress gave to Chapter 126 of

Title 42 of the United States Code, which contains Titles I to III and V of the

ADA: “Equal Opportunity for Individuals with Disabilities.” Mr. Daniels’s injury,

the denial of his opportunity to fully access Lexington Market, is precisely the type

of harm that Congress intended to redress through passage of the ADA.

Furthermore, Title III of the ADA broadly grants statutory standing by authorizing

a court to award an injunction to “any person who is being subjected to

discrimination.” 42 U.S.C. § 12188(a)(1). Thus, plaintiffs asserting claims under

Title III of the ADA need not establish more than is constitutionally required to

assert standing. See Lujan, 504 U.S. at 578 (noting that nothing in the Court’s

decision “contradicts the principle that [t]he . . . injury required by Art. III may

exist solely by virtue of statutes creating legal rights, the invasion of which creates

standing”) (internal quotation marks omitted) (alterations in original).

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Although “[p]ast 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,” the denial of equal opportunity constitutes

an ongoing injury to Mr. Daniels. City of Los Angeles v. Lyons, 461 U.S. 95, 102

(1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). So long as

Lexington Market is not in compliance with the ADA, as alleged, Mr. Daniels

suffers the injury of being denied the opportunity to access and enjoy the market to

the same extent as individuals without mobility impairments. The continuing

nature of Mr. Daniels’s injury, therefore, does not require repeated visits to

Lexington Market to experience further discrete instances of discrimination.

This Court’s recent decision in a case brought under Title IX of the

Education Amendments of 1972 is instructive. See Equity in Athletics, Inc., 2011

WL 790055. In Equity in Athletics, Inc., the Court held that an organizational

plaintiff had standing to seek injunctive and declaratory relief under Title IX

because the defendant’s conduct resulted in a denial of “participation opportunities

for athletes” who were members of the plaintiff organization. Id. at *5. The Court

did not assess the likelihood of these athletes participating in sports teams in the

future; the denial of equal opportunity itself constituted an ongoing injury

sufficient to establish standing. See id.

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Similarly, in cases brought under the Equal Protection Clause of the

Fourteenth Amendment, the Supreme Court has held that the injury in fact “is the

denial of equal treatment resulting from the imposition of the barrier, not the

ultimate inability to obtain benefits.” Northeastern Fla. Chapter of the Associated

Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993). Thus,

equal protection plaintiffs need not demonstrate the likelihood of unequal

treatment causing them some future harm; rather, the injury produced by the

unequal treatment establishes standing independently.

Courts have applied the same reasoning in holding that plaintiffs have the

requisite injury in fact to establish standing in cases brought under Title III of the

ADA by virtue of the continued existence of unequal opportunity or access. See

Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003) (noting that the

discriminatory effect of a policy or practice should be gauged by “the degree to

which that policy or practice denies access to a disabled individual, not merely by

the specific instances in which the policy or practice frustrates the individual”). In

particular, courts considering standing under Title III of the ADA have focused on

the continuing injury flowing from the manner in which inaccessible public

accommodations deter individuals with disabilities from enjoying the facility’s

goods or services. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137

15


(9th Cir. 2002) (“So long as the discriminatory conditions continue, and so long as

a plaintiff is aware of them and remains deterred, the injury under the ADA

continues.”); Betancourt v. Federated Dep’t Stores, 732 F. Supp. 2d 693, 708

(2010) (“The fact that the disabled person is being deterred from visiting an

establishment they would otherwise visit, even if infrequently, is an ongoing,

present injury.”); Clark v. McDonald’s Corp., 213 F.R.D. 198, 229 (D.N.J. 2003)

(holding that when an individual with a disability is deterred from patronizing the

defendant’s inaccessible facility, “such discouragement constitutes an actual and

existing injury from which any perceived absence of imminent future harm cannot

detract”).

The Supreme Court relied on the same logic of deterrence as a continuing

injury in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).

In Laidlaw, the plaintiffs brought suit against the defendant for its violations of the

Clean Water Act, claiming that this conduct kept them from engaging in activities

such as fishing, swimming, and hiking near a river for fear of pollutants in the

water. Id. at 181-83. The Court held that the continued harm to the plaintiffs from

abstaining from these recreational activities was sufficient to establish standing and

was not too speculative an injury. Id. at 184-85. Likewise, the harm Mr. Daniels’s

complaint alleges he has suffered as a result of not being able to equally access

16


Lexington Market constitutes a sufficient claim of an ongoing, non-speculative

injury in fact. Just as the plaintiffs in Laidlaw were not required to swim in the

polluted river and subsequently fall ill to have standing, Mr. Daniels need not

allege that he will repeatedly subject himself to the inconvenience, burden, and

humiliation of Lexington Market’s architectural barriers to demonstrate standing to

enforce his rights under the ADA.

Mr. Daniels’s allegation of a continuing denial of equal access to Lexington

Market thus satisfies the injury in fact requirement as articulated in Lyons and

Lujan. To the extent that Lyons and Lujan require a heightened showing of

standing, however, these two cases are readily distinguishable from the present

case. In Lyons, the Court held that the plaintiff did not have standing to challenge

police officers’ use of chokeholds because of the unlikelihood that he would again

be stopped by the police for an offense and unlawfully choked into

unconsciousness without provocation or resistance. Lyons, 461 U.S. at 105.

Although Lyons’s past harm may have provided him standing to sue for damages,

the Court held that Lyons lacked a continuing or future harm that would establish

standing to sue for injunctive relief. Id.

The possibility that Lyons would again be stopped by the police for violating

the law and subjected to a chokehold, however, was much more speculative than

17


the possibility that Mr. Daniels will find Lexington Market inaccessible if he

returns in the future, given that Mr. Daniels’s mobility remains impaired and

architectural barriers remain in place at the market. Indeed, although Lyons alleged

that he “feared he would be choked in any future encounter with the police,” he did

not, nor could he, allege such an occurrence was likely. See id. at 105-06, 107 n.8.

In Honig v. Doe, 484 U.S. 305 (1988), the Supreme Court distinguished between

the type of future harm absent in Lyons and the ongoing discrimination to which

individuals with disabilities are subject. The Court recognized that while it has

been “unwilling to assume that [a] party [like Lyons] seeking relief will repeat the

type of misconduct that would once again place him or her at risk of injury,” it is

not reluctant to recognize repeat injury where it is a plaintiff’s “very inability to

conform his conduct to socially acceptable norms that renders him ‘handicapped’

within the meaning of the [Education for All Handicapped Children Act].” Id. at

320. Thus, the permanency of a plaintiff’s disability, in the face of continued

discrimination, creates a significantly more certain prospect of continuing injury

than existed in Lyons.

Lyons is also distinguishable from the present case in that Lyons retained the

possibility of recovering damages from the defendant. See Lyons, 461 U.S. at 113.

The Court reasoned that “withholding injunctive relief does not mean that the

18


federal law will exercise no deterrent effect in these circumstances.” Id. at 112-13

(internal quotation marks omitted). Under Title III of the ADA, however,

injunctive relief is the only remedy available to plaintiffs and therefore constitutes

the sole form of deterrence. See 42 U.S.C. § 12188(a)(1) (incorporating by

reference the remedial provisions governing Title II of the Civil Rights Act of

1964, 42 U.S.C. § 2000a-3(a), which authorizes injunctive relief, but not damages).

Thus, one of the Court’s rationales in denying Lyons standing to pursue injunctive

relief simply does not apply in the context of Title III of the ADA.

Mr. Daniels’s lawsuit is also distinguishable from the facts of Lujan. In

Lujan, the Court held that plaintiffs challenging a regulation promulgated under the

Endangered Species Act, which limited the geographical scope of the Act, lacked

standing. 504 U.S. at 557-58, 562. The plaintiffs had asserted that they were

injured because they had previously traveled to locations not covered by the

regulation to observe endangered species, and one affiant claimed that he intended

to return in the future. Id. at 563-64. The Court was skeptical of these “some day”

intentions to return, which it found to be lacking in concreteness. Id. at 564. Yet

the Court required a particularly strong showing of concreteness because the

lawsuit was brought against the federal government. Id. at 580. The fact that the

government was the defendant triggered concerns over separation of powers. Id. at

19


577. To avoid usurping executive authority, the Court applied the standing inquiry

more rigorously than it otherwise would have. Id. As Mr. Daniels does not assert

his claim against the government, however, such separation-of-powers issues do

not arise and a heightened standing analysis is inappropriate.

Furthermore, whereas endangered animals bore the direct injury in Lujan,

Mr. Daniels alleges that he is himself directly injured by the denial of access to

Lexington Market. The Court in Lujan recognized that standing is typically a given

in cases in which the plaintiff is the direct subject of the contested activity. See id.

at 561-62 (noting that where “the plaintiff is himself an object of the action (or

foregone action) at issue . . . there is ordinarily little question that the action or

inaction has caused him injury, and that a judgment preventing or requiring the

action will redress it”). Conversely, “much more is needed” to establish standing in

cases in which the “plaintiff’s alleged injury arises from the government’s

allegedly unlawful regulation (or lack of regulation) of someone else.” Id. at 562

(emphasis in original). Thus the injury in the present case is significantly more

concrete and particular than the injury alleged in Lujan, as Mr. Daniels alleges that

he has been directly injured by Arcade’s failure to comply with the ADA.

Accordingly, to the extent that the Supreme Court employed a heightened standing

requirement in Lujan and Lyons, this Court should not apply this more rigorous

20


analysis to a case involving discrimination on the basis of disability in public

accommodations.

C. The Factors Relied Upon by the District Court in Assessing the

Credibility of Mr. Daniels’s Factual Allegations Establishing Standing Are Antithetical to the Language and Purpose of the ADA.

In evaluating Arcade’s motion to dismiss, the district court was obligated to

accept as true Mr. Daniels’s allegations that he is an individual with a disability,

that Arcade continues to discriminate against him by maintaining architectural

barriers at Lexington Market, and that he intends to return to the market as both a

patron and to test compliance with the ADA. Instead, the district court undertook a

separate analysis seemingly to evaluate the veracity of Mr. Daniels’s stated

intention to return to the market. Given the continuing nature of Mr. Daniels’s

injury, as discussed above, Mr. Daniels did not need to allege his intention to

return to Lexington Market to state an injury sufficient to establish standing to

pursue injunctive relief. Nevertheless, to the extent that such an allegation is

required to establish standing in this case, the court erred in questioning the

credibility of Mr. Daniels’s allegation at the pleadings stage.

Furthermore, the factors relied upon by the district court in evaluating the

sincerity of Mr. Daniels’s stated intention to return to Lexington Market run

contrary to the purposes of the ADA. The district court weighed factors that would

21


require an ADA plaintiff to have a lengthy history of visiting an inaccessible

location, definitive plans to encounter the discrimination again by returning to the

inaccessible location in the very near future, and a record of past frequent travel to

the inaccessible location in order to have standing to require the facility to comply

with the ADA. These factors not only contradict the ADA’s explicit language

regarding the unnecessariness of futile gestures, they also undermine the ADA’s

goal of remediating discriminatory barriers to accessibility by forcing plaintiffs to

repeatedly expose themselves to discrimination in order to challenge it.

The district court also considered Mr. Daniels’s history of litigation under

the ADA to discredit his alleged intention to return to Lexington Market. This

factor threatens to restrict the private right of action necessary to enforce the

ADA’s goals of “equality of opportunity” and “full participation” for individuals

with disabilities. 42 U.S.C. § 12101(a)(7). Finally, the district court’s reliance on

the proximity factor, which weighs the distance of a plaintiff’s residence from the

defendant’s non-ADA-compliant facility against his attempt to establish standing,

is equally misplaced.2 The proximity factor directly undermines the ADA’s goal of

enabling individuals with disabilities the freedom and independence to travel, and

22

2 The district court found that the proximity factor “weighs in favor of finding that Daniels will return to Lexington Market.” J.A. 57. Nevertheless, Mr. Daniels challenges the lower court’s reliance on the proximity factor as part of its improper, overall approach to standing. Mr. Daniels, therefore, accepts the district court’s finding that he lives in close proximity to Lexington Market, but contends that his standing under the ADA cannot be limited to locations nearby his home.


also runs afoul of the ADA’s constitutional underpinnings in the Commerce

Clause. To honor the remedial purpose of the ADA, therefore, these factors which

restrict or second-guess a plaintiff’s intention or ability to enforce his rights under

the ADA, must firmly be rejected.

1. ADA Litigants’ History of Past Patronage, Definitiveness of Plans

to Return, and Frequency of Travel to Inaccessible Public Accommodations Should Not Affect Their Standing to Bring Suit.

The district court held that Mr. Daniels was not entitled to standing, in part,

because he failed to demonstrate sufficient past patronage of Lexington Market,

definitive plans to return to the market, and frequent travel to the market. J.A. 58-

59. The district court erred in considering these factors. First, these factors

improperly second-guess the credibility of Mr. Daniels’s stated intention to return

to the market. As previously discussed, the court must accept a plaintiff’s well-

pleaded allegations as true at the pleadings stage. See Lujan, 504 U.S. at 561.

Secondly, they undermine the explicit language and purpose of the ADA by

requiring plaintiffs to undertake futile gestures and by severely restricting the

ability of persons with disabilities to enforce their rights.

In broadly granting a cause of action to individuals with disabilities who

experience discrimination, Congress was careful to note that “nothing shall require

a person with a disability to engage in a futile gesture if such a person has actual

23


notice that a person or organization covered by this subchapter does not intend to

comply with its provisions.” 42 U.S.C. § 12188(a)(1). Representative Steny Hoyer

explained this “futile gesture” provision by giving the example of a theatre that has

already turned away six people with cerebral palsy. 136 Cong. Rec. E1913-01,

E1920 (daily ed. May 22, 1990). In that situation, he explained, “a person with

cerebral palsy can bring suit without first subjecting himself or herself to the

humiliation of being turned away by the theatre.” Id.

The futility doctrine originates from the Supreme Court’s decision in

Teamsters v. United States, in which it held that plaintiffs who had not actually

applied for promotions could nevertheless challenge the employer’s racially

discriminatory seniority system under Title VII based upon a showing that they

would have applied to the jobs but for the employer’s discriminatory practices. 431

U.S. 324, 366-68 (1977). The Court reasoned that “[w]hen a person’s desire for a

job is not translated into a formal application solely because of his unwillingness to

engage in a futile gesture he is as much a victim of discrimination as is he who

goes through the motions of submitting an application.” Id. at 365-66.

Courts have interpreted the ADA’s “futile gesture” language as providing

that a plaintiff need not allege an intention to return to a non-ADA-compliant

public accommodation when he or she knows that the location is non-compliant.

24


See Dudley, 333 F.3d at 305 (observing that the proposition “that a disabled person

must subject himself to repeated instances of discrimination in order to invoke the

remedial framework of Title III of the ADA . . . turns the language of section

12188(a)(1) on its head”); Betancourt, 732 F. Supp. 2d at 708 (holding that “a

plaintiff need not engage in the futile gesture of visiting an accommodation she

knows to be discriminating against her in order to establish standing”); Clark v.

McDonald’s Corp., 213 F.R.D. 198, 229 (D.N.J. 2003) (“If the ‘futile gesture’

language of Title III is to mean anything, it means that those in [the plaintiff]'s

position may sue to bring into compliance with the ADA places of public

accommodation that they know are non-complaint, without having to allege an

intention to return to such places before their lawsuits can have the effect of

forcing compliance”).

While not explicitly referencing the ADA’s “futile gesture” language,

several courts have similarly held that a plaintiff need not repeatedly visit a

discriminatory facility or have concrete plans to visit the location in the future in

order to have standing to enforce the ADA. See e.g., Steger v. Franco, Inc., 228

F.3d 889, 893 (8th Cir. 2000) (holding that a blind plaintiff who had only

attempted to enter the defendant’s building once, had standing to bring suit under

the ADA); Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1081 (D. Haw.

25


2000) (“Plaintiff should not be required to encounter every barrier seriatim within

[the defendant’s restaurant] to obtain effective relief.”); Indep. Living Res. v.

Oregon Arena Corp., 982 F. Supp. 698, 762 (D. Or. 1997) (noting that it is

“reluctant to embrace a rule of standing that would allow an alleged wrongdoer to

evade the court’s jurisdiction so long as he does not injure the same person twice”).

These decisions are consistent with the Supreme Court’s holding in Evers v.

Dyer, 358 U.S. 202 (1958). In Evers, an African-American plaintiff brought suit

after he was threatened with arrest for sitting in the front of a Memphis public bus.

Id. at 203-04. Even though the plaintiff had only ridden the Memphis public buses

on the one occasion giving rise to the lawsuit, the Court held that the case was

justiciable. See id. at 204. The Court reasoned that, “[a] resident of a municipality

who cannot use transportation facilities therein without being subjected by statute

to special disabilities necessarily has, we think, a substantial, immediate, and real

interest in the validity of the statute which imposes the disability.” Id. The Court

gave no consideration to the plaintiff’s past use of the public buses or definitive

plans for future use. The plaintiff’s single experience of discrimination was

sufficient to establish standing.

This line of cases allowing plaintiffs to proceed on the basis of a single

incident of discrimination follows common sense. A plaintiff who has experienced

26


exclusion as a result of his or her disability or race is not likely to voluntarily

repeat or plan to repeat the experience with great frequency. See Ruth Colker, ADA

Title III: A Fragile Compromise, 21 Berkeley J. Emp. & Lab. L. 377, 398 (2000)

(noting, in the context of personal services, that “it is unlikely that anyone would

engage the services of a provider again after the provider had engaged in blatant

discrimination, since other providers are usually available”). As the House

Committee on Education and Labor noted in its report summarizing congressional

hearings on the ADA, “[d]iscrimination produces fear and reluctance to participate

on the part of people with disabilities.” H.R. Rep. 101-485, pt. 2, at 42 (1990).

Thus, requiring plaintiffs to demonstrate a history of participation in the face of the

same discriminatory policy or barrier they wish to challenge would likely prevent

the majority of individuals with disabilities from being able to enforce Title III of

the ADA.

2. Individuals with Disabilities Should Not Be Penalized for

Enforcing the ADA and Promoting Increased Accessibility by Filing Multiple Lawsuits.

In analyzing Mr. Daniels’s standing to sue, the district court reasoned that

although Mr. Daniels’s litigation history is “not outcome determinative, it is

relevant to this case and undermines . . . Daniel[s]’s already vague statements

regarding [his] intentions of returning to Lexington Market.” Yet such

27


consideration of a plaintiff’s litigation history improperly punishes that individual

for enforcing his statutory rights. As recognized by Congress, “the rights

guaranteed by the ADA are meaningless without effective enforcement

provisions.” H.R. Rep. No. 101-485, pt. 2, at 40 (1990). For this reason, Congress

granted individuals with disabilities a private right of action with which to combat

unlawful discrimination. Individuals who use this right of action breathe life into

Congress’s attempt to remediate widespread discrimination against individuals

with disabilities and should not be penalized for doing so.

Serial litigation is common, and indeed necessary, under the ADA given that

enforcement of the statute remains weak. Although the United States Attorney

General is empowered to enforce the ADA under 42 U.S.C. § 12188(b)(1)(B)3, the

United States Department of Justice initiates only a very limited number of cases

and tends to focus more on achieving settlements. See Michael Waterstone, The

Untold Story of the Rest of the Americans with Disabilities Act, 58 Vand. L. Rev.

3 42 U.S.C. § 12188(b)(1)(B) provides:

If the Attorney General has reasonable cause to the believe that—

(i) any person or group of persons is engaged in a pattern or practice of discrimination under this subchapter; or (ii) any person or group of persons has been discriminated against under this subchapter and such discrimination raises an issue of general public importance,

the Attorney General may commence a civil action in any appropriate United States district court.

28


1807, 1874 (2005). “The emphasis on settlement creates less public law that

businesses will pay attention to when creating accessibility policies.” Id. Thus,

“private suits by necessity represent the main tool for ensuring compliance with

Congress’s intent in passing the ADA.” Kelly Johnson, Note, Testers Standing Up

for Title III of the ADA, 59 Case W. Res. L. Rev. 683, 710 (2009); see also

Trafficante, 409 U.S. at 210-211 (noting that because government enforcement of

the portion of the Civil Rights Act of 1968 prohibiting housing discrimination is

limited, “the main generating force must be private suits in which … the

complainants act not only on their behalf but also as private attorneys general in

vindicating a policy that Congress considered to be of the highest priority”)

(internal quotation marks omitted).

Among private litigants, however, several factors create powerful

disincentives for bringing lawsuits under the ADA. First, Title III of the ADA

provides only for injunctive, non-monetary, remedies. 42 U.S.C. § 12188(a)(1).

Thus, plaintiffs cannot expect to recover any damages under Title III of the ADA,

a form of relief that provides a strong incentive for enforcement. The United States

Court of Appeals for the Ninth Circuit has observed that the “unavailability of

damages reduces or removes the incentive for most disabled persons who are

injured by inaccessible places of public accommodation to bring suit under the

29


ADA.” See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir.

2007). Consequently, “most ADA suits are brought by a small number of private

plaintiffs who view themselves as champions of the disabled.” Id.

In addition, given the unavailability of damages, attorneys representing

plaintiffs cannot hope to recover for their time and effort in litigating Title III

lawsuits based upon a contingency fee arrangement. Although attorneys can seek

fees for meritorious claims under the ADA, the right to attorneys’ fees has been

sharply curtailed in recent years. See, e.g., Buckhannon Bd. & Care Home, Inc. v.

West Va. Dep’t of Health and Human Res., 532 U.S. 598, 600 (2001) (prohibiting

attorneys from recovering fees in cases where defendants voluntarily abandon

challenged practices). Thus private attorneys risk not being paid for their work if

they lose a case or win too easily (by bringing about the defendant’s voluntary

compliance with the statute). See Samuel R. Bagenstos, The Perversity of Limited

Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev.

1, 13 (2006). Consequently, individuals with disabilities face greater difficulty

finding an attorney to represent them in cases involving public accommodations.

Given these disincentives to enforcement, the number of Title III cases filed

remains comparatively low. See Waterstone, supra, at 1853 (finding that only 82

Title III ADA cases were decided by appellate courts between 1991 and 2004, in

30


comparison to 720 Title I ADA cases decided by appellate courts between 1991

and 2001). Attorneys who are willing to represent individuals with disabilities in

Title III cases often do so because they have either found a way to make ADA

litigation cost effective or they are ideologically motivated. See Bagenstos, supra,

at 14. These characteristics make it more likely that individuals with disabilities

will bring serial lawsuits. Id. Given that serial lawsuits are, in part, a response to

disincentives to enforcement, a standing doctrine that would limit serial ADA

litigants from accessing the courts would strike a further, major blow to

enforcement of the ADA. See id. at 6-7 (noting that “[s]erial litigation is a natural

result of the limitations on remedies under the [ADA’s] public accommodations

title” and “is probably essential” to enforcement).

Serial litigation is also common, however, because of the great prevalence of

non-ADA-compliant places of public accommodations. As of 2006, “many if not

most businesses remain[ed] inaccessible, even in circumstances where it would be

easy to remove barriers.” Id. at 4. In addition, the fact that only five states have had

their accessibility requirements ADA-certified by the Department of Justice

suggests that many state building codes are not in compliance with the ADA. See

U.S. Dep’t of Justice, Additional Information on the Certification Process,

http://www.ada.gov/certinfo.htm (last visited Apr. 24, 2011).

31


Compliance with Title III of the ADA can also be measured in terms of how

well individuals with disabilities are faring in our society. According to a 2004

national survey, “people with disabilities still lag behind people without disabilities

on most quality of life factors covered by Titles II and III of the ADA.”

Waterstone, supra, at 1832 (citing Nat’l Organization on Disability, 2004

N.O.D./Harris Survey of Americans with Disabilities (2004)). Thus, the need for

aggressive enforcement of the ADA persists.

As Samuel R. Bagenstos, current Principal Deputy Assistant Attorney

General in the United States Department of Justice Civil Rights Division, has

asked, “[i]f fifty hotels in a city had a ‘whites only’ policy, would an African

American be required to sue only one such hotel, leaving it to a separate plaintiff to

sue each of the others? If not, there is no reason why public accommodations suits

under the ADA should be any different.” Bagenstos, supra, at 28-29. Thus, “[f]or

the ADA to yield its promise of equal access for the disabled, it may indeed be

necessary and desirable for committed individuals to bring serial litigation

advancing the time when public accommodations will be compliant with the

ADA.” Molski, 500 F. 3d at 1062.

Accordingly, some individuals with disabilities choose to visit places of

public accommodation as ADA “testers,” or for the sole purpose of assessing a

32


location’s compliance with the ADA. To the extent that the district court was

particularly inquisitive of Mr. Daniels’s litigation history because of his stated

intent to return to Lexington Market as an ADA tester, see J.A. 14, Mr. Daniels’s

status as a tester should not have weighed against his standing to sue.

Supreme Court precedent dictates that testers, or individuals who visit

locations for the sole purpose of assessing their compliance with civil rights law,

are entitled to standing so long as they suffer the injury of discrimination. See

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (holding that the possibility

that the plaintiff housing discrimination tester “may have approached the real

estate agent fully expecting that he would receive false information, and without

any intention of buying or renting a home does not negate the simple fact of injury

within the meaning of [the statute]”); Evers, 358 U.S. at 204 (noting, after finding

that the plaintiff had standing to sue, that the fact “[t]hat the appellant may have

boarded this particular bus for the purpose of instituting this litigation is not

significant”).

Several circuit courts have applied the Court’s holdings in Havens Realty

and Evers in the context of other civil rights laws. Tandy v. City of Wichita, 380

F.3d 1277, 1286 (10th Cir. 2004) (holding that “tester standing exists under Title II

of the ADA” and “under the Rehabilitation Act”); Shaver v. Indep. Stave Co., 350

33


F.3d 716, 724 (8th Cir. 2003) (relying on Havens Realty to conclude that allegedly

“manufactured” claims under the ADA are still actionable); Kyles v. J.K Guardian

Sec. Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000) (holding that an employment

discrimination tester has standing to sue “even if she has not been harmed apart

from the statutory violation—even if, for example, she was not genuinely

interested in the job she applied for and in that sense was not harmed by the

employer’s refusal to hire her”); Watts v. Boyd Props., Inc., 758 F.2d 1482, 1485

(11th Cir. 1985) (concluding that fair housing testers had standing to sue under 42

U.S.C. § 1982); America v. Preston, 468 F. Supp. 2d 118, 124 (D.D.C. 2006)

(noting that testers are not precluded from relief under Title VII).4

In Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004), the

United States Court of Appeals for the Ninth Circuit considered whether testers

with disabilities have standing to sue under provisions of the Fair Housing Act

prohibiting discrimination on the basis of disability. The court held that such

testers had standing to sue, despite the fact that they lacked the intent to actually

rent or purchase the housing they viewed. Id. at 1104. Requiring such an intent, the

34

4 Although this Court previously held in Sledge v. J.P. Stevens & Co., 585 F.2d 625, 641 (4th Cir. 1978) that employment discrimination testers do not have standing because they are not actually interested in pursuing the job for which they have applied, Sledge predates the Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). Given the weight of authority, as discussed above, in favor of tester standing among circuit courts post-Havens Realty, this Court’s contrary holding in Sledge should no longer be considered good law.


court reasoned, would “ignore[] that many overtly discriminatory conditions, for

example, lack of a ramped entryway, prohibit a disabled individual from forming

the requisite intent or actual interest in renting or buying for the very reason that

architectural barriers prevent them from viewing the whole property in the first

instance.” Id.

Furthermore, the court recognized the “dignitary harm to a disabled person”

that flows from “observing such overtly discriminatory conditions” Id. If testers

were not allowed to enforce their rights under the Fair Housing Act, the court

concluded, the statute’s specific intent, “which is to prevent disabled individuals

from feeling as if they are second-class citizens” would be undermined. Id.; see

also Shaver, 350 F.3d at 724 (observing “that Congress was trying to protect a

dignitary interest with the ADA” and thus, “the mere fact of discrimination offends

the dignitary interest the [ADA is] designed to protect”).

To be clear, serial litigants who bring non-frivolous lawsuits under the ADA

are distinct from abusive or vexatious litigants. Merely filing numerous complaints

under a statute does not automatically render a plaintiff vexatious. See id. at 1051.

In Molski, the Ninth Circuit held that a plaintiff who alleged identical injuries

occurring at multiple establishments on the same day in various complaints,

thereby fatally undermining the veracity of his allegations, was properly deemed

35


vexatious by the district court. Id. at 1061. The lower court, therefore, acted

appropriately in limiting the plaintiff’s ability to file future lawsuits. Id. The Ninth

Circuit emphasized, however, that “the simple fact that a plaintiff has filed a large

number of complaints, standing alone, is not a basis for designating a litigant as

‘vexatious.’” Id. Nor are textual and factual similarities in a plaintiff’s complaints a

proper basis, as “[a]ccessibility barriers can be, and often are, similar in different

places of public accommodation, and there is nothing inherently vexatious about

using prior complaints as a template.” Id.; see also Wilson v. Pier 1 Imports (US),

Inc., 411 F. Supp. 2d 1196, 1200-01 (E.D. Cal. 2006) (refusing to find ADA

plaintiffs who had filed multiple, virtually identical lawsuits against various

defendants vexatious because there is no reason “why uniform instances of

misconduct do not justify uniform pleadings” and the multitude of lawsuits filed

“reflect the failure of the defendants to comply with the law” rather than any

plaintiff misconduct).

3. Consideration of an ADA Plaintiff’s Proximity to an Inaccessible

Public Accommodation Is Contrary to the Language and Purpose of the ADA.

The closeness of a plaintiff’s residence to an inaccessible public

accommodation should not factor into the Article III standing analysis. To the

extent this proximity factor is used to test the sincerity of the plaintiff’s stated

36


intent to return to an inaccessible location, it is inappropriate at the pleadings stage,

as previously discussed. Perhaps more troubling, though, is that requiring a

plaintiff to live close to the defendant’s facility in order to enforce his rights under

the ADA undermines one of the key purposes of the statute: to “provide a clear and

comprehensive national mandate for the elimination of discrimination against

individuals with disabilities.” 42 U.S.C. § 12101(b)(1) (emphasis added). To be a

truly “national” mandate, plaintiffs must be able to assert their right to accessible

public accommodations across state lines and, indeed, all around the country.

A standing analysis that prohibits plaintiffs from enforcing the ADA on a

national basis serves to further exclude individuals with disabilities from the fabric

of American society. In passing the ADA, Congress found that “historically,

society has tended to isolate and segregate individuals with disabilities” and that

such discrimination “continue[s] to be a serious and pervasive social problem.” 42

U.S.C. § 12101(a)(2). Limiting enforcement of the ADA to only those locations in

close proximity to the plaintiff would effectively confine individuals with

disabilities to the areas immediately surrounding their homes, thus reinforcing the

social isolation Congress sought to remedy through the ADA. See H.R. Rep. 101-

485, pt. 2, at 34 (1990) (explaining the need to make public accommodations

accessible to people with disabilities given survey results painting “a sobering

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picture of an isolated and secluded population of individuals with disabilities”);

H.R. Rep. 101-485, pt. 3, at 26 (1990) (concluding that the ADA promises “a

future of inclusion and integration, and the end of exclusion and segregation”).

Furthermore, upon signing the ADA into law, President George H.W. Bush

remarked that the ADA would “ensure that people with disabilities are given the

basic guarantees for which they have worked so long and so hard: independence,

freedom of choice, control of their lives, the opportunity to blend fully and equally

into the rich mosaic of the American mainstream.” Remarks of President George

Bush at the Signing of the Americans with Disabilities Act,

http://www.eeoc.gov/eeoc/history/35th/videos/ ada_signing_text.html (last visited

Apr. 25, 2011). Having the ability to access public accommodations in any state in

which one chooses to travel is critical to being independent. Individuals with

disabilities would have little of the freedom of choice promised by the ADA if they

were expected to confine their lives to their immediate geographical surroundings.

The proximity factor troublingly presumes that individuals with disabilities

should be satisfied with only being able to access their immediate surroundings.

The underlying assumption is that individuals with disabilities should not expect to

have equal opportunity wherever they travel, and possibly, that they should not

expect to be able to travel at all. The implicit understanding, although likely

38


subconscious, on which the proximity factor seemingly rests, therefore, invokes

“the ancient, now almost subconscious assumption that people with disabilities are

less than fully human and therefore are not fully eligible for the opportunities,

services, and support systems which are available to other people as a matter of

right.” H.R. Rep. No. 101-485, pt. 2, at 31 (1990).

It would be particularly perverse if individuals with disabilities were

prevented from enforcing the ADA across state lines given that Title III of the

ADA was enacted pursuant to Congress’s power to regulate interstate commerce

under Article 1, Section 8 of the United States Constitution. See U.S.C. §

12101(b)(4). Congress surely had the authority under the Commerce Clause to

grant individuals who have experienced discrimination on the basis of their

disability a private right of action that extends beyond the individual’s state of

residence. Indeed, the constitutionality of Title III would be suspect if Congress

had only authorized plaintiffs to bring lawsuits dealing purely with intrastate

commerce, or the denial of opportunity on the basis of disability by a public

accommodation located in Maryland to an individual residing in Maryland. See,

e.g., United States v. Lopez, 514 U.S. 549, 559 (1995) (holding that Congress

exceeded its authority in passing the Gun-Free School Zones Act because the

statute’s regulation of guns in local school zones did not “substantially affect[]

39


interstate commerce”) (internal quotation marks omitted). To circumscribe the

ADA’s private right of action through a proximity requirement would undermine

Congress’s goal of mandating accessibility in public accommodations “among the

several states.” U.S. Const. art. 1, § 8, cl. 3.

Furthermore, interpreting the Article III standing requirement to prohibit

individuals with disabilities from maintaining a cause of action against out-of-state

non-compliant facilities could also run afoul of the “constitutional right to travel

from one State to another.” United States v. Guest, 383 U.S. 745, 757 (1966). The

Supreme Court has long “recognized that the nature of our Federal Union and our

constitutional concepts of personal liberty unite to require that all citizens be free

to travel throughout the length and breadth of our land uninhibited by statutes,

rules, or regulations which unreasonably burden or restrict this movement.”

Shapiro v. Thompson, 394 U.S. 618, 629 (1969). Although the right to travel may

not grant plaintiffs such as Mr. Daniels the right to sue out-of-state inaccessible

facilities, it may inform this Court’s interpretation of Article III standing in ADA

cases. Constitutional rights and provisions, even when not directly controlling,

frequently shape judicial interpretation and decision making. See, e.g., New York v.

United States, 505 U.S. 144, 156-57 (1992) (discussing how federal legislation is

constrained by federalism concerns emanating from the Tenth Amendment, even

40


though the text of the Tenth Amendment “is essentially a tautology” and thus does

not restrict congressional authority on its own).

Restricting ADA plaintiffs’ standing based upon proximity sends a message

to individuals with disabilities that they should stay close to home and not

endeavor to travel to visit friends, family, or tourist destinations, such as Lexington

Market. An individual with a disability who wants to stay at a hotel or eat at a

restaurant while traveling should not expect to gain equal access to these locations.

The proximity test thus violates the spirit of the constitutionally protected right to

travel by treating individuals who travel out-of-state as “unfriendly alien[s]” rather

than “welcome visitors” and thereby discouraging individuals with disabilities

from traveling beyond their home states. Saenz v. Roe, 526 U.S. 489, 500 (1999).

Consideration of a plaintiff’s proximity to the defendant’s non-ADA-compliant

facility, therefore, is both constitutionally suspect and contrary to the purposes of

the ADA. Accordingly, the proximity factor should play no role in assessing

plaintiffs’ standing to enforce Title III of the ADA.

II. EVEN IF THE DISTRICT COURT’S STANDING INQUIRY

WERE CORRECT, MR. DANIELS SATISFIED THE VARIOUS FACTORS ARTICULATED BY THE LOWER COURT.

Mr. Daniels maintains that the district court erred in applying an

unnecessarily rigorous standing analysis and that the factors employed in this

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analysis were improper. Even under the district court’s flawed standing inquiry,

however, Mr. Daniels is entitled to enforce Title III of the ADA. As previously

mentioned, the district court properly found that the proximity factor weighed in

Mr. Daniels’s favor, given that Mr. Daniels resides in Pasadena, Maryland, just

twenty miles from Lexington Market. See J.A. 57.

As for the district court’s consideration of Mr. Daniels’s past patronage of

Lexington Market and the frequency of his visits to the market, Mr. Daniels’s

allegation that he “regularly visits” the market is sufficient to satisfy both factors.

Although the district court found the term “regularly” unclear and vague, see J.A.

58-59, “[g]iven the remedial purpose underlying the ADA, courts should resolve

doubts about questions in favor of disabled individuals.” Dudley, 333 F.3d at 307;

see also Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (noting that “remedial

legislation should be construed broadly to effectuate its purposes”). Furthermore,

the plain common sense meaning of “regularly visits” is that one visits a location

frequently. It is relatively uncommon, outside of a context of strained legal parsing,

to say that one “regularly visits” a place if the visits occur at very prolonged time

intervals. To this effect, the word “regular,” when used as a noun, is defined as “a

habitual customer.” American Heritage Dictionary 1521 (3d ed. 1996).

Nevertheless, the question of whether Mr. Daniels is entitled to enforce the

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ADA should not come down to a single word in the pleading that the district court

found to be vague. Given the remedial nature of the ADA, Mr. Daniels should have

at least been given the opportunity to amend his complaint to clarify his use of the

word “regularly.” See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave

[to amend a pleading] when justice so requires”); see also Day v. McDonough, 547

U.S. 198, 209 (2006) (citing Fed. R. Civ. P. 15(a) and noting that the lower court

judge “might have informed the State of its obvious computation error and

entertained an amendment to the State’s answer”); Pittston Co. v. United States,

199 F.3d 694, 705 (4th Cir. 1999) (holding that although “the grant or denial of an

opportunity to amend [a complaint] is within the discretion of the District Court . .

. outright refusal to grant the leave without any justifying reason appearing for the

denial is not an exercise of discretion; it is merely abuse of that discretion and

inconsistent with the spirit of the Federal Rules”).

With respect to the definitiveness of Mr. Daniels’s plans to return to

Lexington Market, the district court was obligated to accept as true Mr. Daniels’s

allegations that he “intends to continue to visit [Lexington Market] in the future for

his shopping needs” and, additionally, that he “intend[s] to return to [Lexington

Market] as [an] ADA tester[] to determine whether the barriers to access . . . have

been remedied.” J.A. 13-14; see Lujan, 504 U.S. at 561; Warth, 422 U.S. at 502.

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The district court held that these statements of intent were not sufficiently

“concrete and specific.” J.A. 58. Yet it is difficult to imagine the level of detail the

district court expected of Mr. Daniels. How many individuals have specific dates

planned for future shopping excursions? Mr. Daniels alleged that he regularly

shops at Lexington Market; the court below had no reason to assume that, given his

stated intention to continue patronizing the market, he would not return on a

regular basis as well. Therefore, the court erroneously determined that Mr. Daniels

had not adequately pleaded definitive plans to return to Lexington Market.

The district court also erred in holding that Mr. Daniels’s litigation history

undermined his statements regarding his intention to return to Lexington Market.

The district court identified only two other cases in which Mr. Daniels sought to

enforce Title III of the ADA. J.A. 60. The court found that Mr. Daniels’s co-

plaintiff below, Mr. Judy, however, had filed forty-nine federal ADA lawsuits over

the past five years. J.A. 60. Although this lengthy litigation history belonged only

to Mr. Judy, the district court seemed to have considered it in deciding that Mr.

Daniels’s litigation history weighed against his ability to bring suit against Arcade.

Because Mr. Daniels joined Mr. Judy as a fellow plaintiff in Mr. Daniels’s two

prior ADA cases, the district court may have assumed that Mr. Daniels would

continue to join Mr. Judy in enforcing the ADA, thereby becoming a serial ADA

44


litigant in his own right. Such an assumption is unfair, however, given that Mr.

Daniels has never stated his intention to continue filing suits under Title III of the

ADA. Furthermore, Mr. Daniels’s relatively short litigation history should not have

been lumped together with Mr. Judy’s far more extensive history.5 Thus, even if

the district court properly analyzed standing, it erred in holding that Mr. Daniels

did not satisfy each of the factors it employed.

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT MR.

DANIELS’S ALLEGED INJURY WAS NOT FAIRLY TRACEABLE TO ARCADE BECAUSE THE FACTUAL QUESTION OF WHO OWNS OR LEASES LEXINGTON MARKET IS DISPUTED.

The district court concluded that Mr. Daniels also lacked standing because

he had not “shown an imminent or traceable injury.” J.A. 60. The court reasoned

that based on an affidavit submitted by John M. Prugh, President of Brown-

Arcade, Inc., Arcade’s general partner, Arcade was in no way responsible for

Lexington Market’s alleged architectural barriers. J.A. 61. Therefore, the court

determined, Mr. Daniels’s alleged injury was not traceable to Arcade, thus

defeating standing. J.A. 61. The court erred, however, in determining, at this stage

of the litigation, that Arcade could not be held legally liable for Lexington

45

5 As previously argued, Mr. Daniels maintains that serial Title III litigants, like Mr. Judy, should not be penalized for enforcing their rights under the ADA. Thus, although the district court erroneously grouped Mr. Daniels’s litigation history with Mr. Judy’s, an extensive litigation history should not weigh against standing.


Market’s non-compliance with the ADA. A careful review of Mr. Prugh’s

affidavit, as well as the allegations in Mr. Daniels’s complaint, reveals that the

material issue of Arcade’s control over Lexington Market remains factually

disputed. If, as Mr. Daniels contends, Arcade owns or leases at least a portion of

Lexington Market, it may be held liable under the ADA for any architectural

barriers existing in that portion. Therefore, Mr. Daniels should be allowed to

proceed to discovery to ascertain further evidence of the nature of Arcade’s

property interest in Lexington Market and liability under the ADA.

A. The Parties to this Lawsuit Dispute the Material Factual Issue of

Whether Arcade Owns or Leases Part, if Not All, of Lexington Market.

Mr. Daniels alleged in his complaint that Arcade is the “owner, lessee,

and/or operator” of Lexington Market, “whose main entrance is located at 400

West Lexington Street, Baltimore, MD 21201, but whose property is located

between N. Eutaw St., Marion St., W. Lexington St., N. Greene St., and W.

Saratoga St.” J.A. 12. Mr. Daniels further explained in his response to Arcade’s

motion to dismiss that the building located at 400 W. Lexington Street “is a large

building which straddles the north and south sides of W. Lexington Street [and] . . .

includes 403, 421, and 423 W. Lexington Street.” J.A. 32. Thus, Mr. Daniels

contends that Lexington Market is a large facility that includes multiple addresses

46


all located within the market’s main building.

Arcade’s response to this allegation is that it “owns the building located at

403, 421, and 423 West Lexington Street, Baltimore, MD 21201” and that it “does

not own or lease 400 West Lexington Street.” J.A. 24-25. Arcade also contends

that it is not responsible for operating “the property commonly known as

Lexington Market.” J.A. 25. This statement appears artfully worded, however, so

as not to disclaim ownership of Lexington Market, or of the addresses which

comprise the large market.

Therefore, although both parties agree that Arcade owns 403, 421, and 423

West Lexington Street, a material factual dispute exists as to whether these

addresses may properly be considered part of the Lexington Market complex. This

dispute can only be resolved through discovery, through which Mr. Daniels would

have the opportunity to review property records and depose and send

interrogatories to relevant individuals with knowledge of the property contours of

the Lexington Market complex. The district court assumed too much when it

summarized Mr. Daniels’s allegations as “contend[ing] only that the building that

houses Lexington Market also houses other properties at different addresses that

Arcade admits owning.” J.A. 61. To the contrary, Mr. Daniels contends that the

addresses that Arcade admits owning do not merely share a building with

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Lexington Market, but are part of Lexington Market. Furthermore, although

Arcade disclaims ownership of 400 West Lexington Street, this contention is also

disputed, as Mr. Daniels alleged in his complaint that the front entrance to

Lexington Market is located at this address and that Arcade owns, leases, or

operates the market. J.A. 12. Thus, the district court erroneously determined that

Arcade did not own part, if not all, of Lexington Market, despite the presence of

material factual disputes as to whether Lexington Market includes the properties

Arcade admits owning and whether Arcade owns, leases, or operates 400 West

Lexington Street.

B. If, as Mr. Daniels Alleges, Arcade Owns or Leases Lexington

Market, His Injury will be Fairly Traceable to Arcade.

The dispute over whether Arcade owns, leases, or operates all or part of

Lexington Market is material because, if Mr. Daniels’s assertions are correct,

Arcade will be liable for the alleged ADA violations. Accordingly, Mr. Daniels’s

injury would then be traceable to Arcade.

Title III of the ADA prohibits discrimination on the basis of disability “by

any person who owns, leases (or leases to), or operates a place of public

accommodation” 42 U.S.C. § 12182(a) (emphasis added). The United States

Department of Justice has explained the respective liability of landlords and

48


tenants of public accommodations in its Technical Assistance Manual:

Do both a landlord who leases space in a building to a tenant and the tenant who operates a place of public accommodation have responsibilities under the ADA? Both the landlord and the tenant are

public accommodations and have full responsibility for complying with all ADA title III requirements applicable to that place of public accommodation. The title III regulation permits the landlord and the tenant to allocate responsibility, in the lease, for complying with particular provisions of the regulation. However, any allocation made in a lease or other contract is only effective as between the parties, and

both landlord and tenant remain fully liable for compliance with all provisions of the ADA relating to that place of public accommodation.

ILLUSTRATION: ABC Company leases space in a shopping center it owns to XYZ Boutique. In their lease, the parties have allocated to XYZ Boutique the responsibility for complying with the barrier removal requirements of title III within that store. In this situation, if XYZ Boutique fails to remove barriers, both ABC Company (the landlord) and XYZ Boutique (the tenant) would be liable for violating the ADA and could be sued by an XYZ customer. Of course, in the lease, ABC could require XYZ to indemnify it against all losses caused by XYZ's failure to comply with its obligations under the lease, but again, such matters would be between the parties and would

not affect their liability under the ADA.

U.S. Dep’t of Justice, Civil Rights Division, The Americans with Disabilities Act:

Title III Technical Assistance Manual § III-1.2000 (1993) (emphasis added)6; see

Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (citing the Technical Assistance

6 Available at http://www.ada.gov/taman3.html.

49


Manual as authority under the ADA and noting that the Justice Department’s views

are entitled to deference).

If Mr. Daniels has correctly alleged in his complaint that Arcade either owns

or leases at least part of Lexington Market, therefore, Arcade will be liable for any

barriers to accessibility located in the part of Lexington Market that it owns or

leases. Consequently, Mr. Daniels’s injury, the denial of access, would be directly

traceable to Arcade’s conduct as an owner or tenant. Thus, the district court erred

in dismissing Mr. Daniels’s lawsuit based on lack of standing given the existence

of a material factual dispute relating to traceability. See Equity in Athletics, Inc.,

2011 WL 790055, at *4 (noting that courts must presume the plaintiff will prevail

on the merits when assessing standing).

CONCLUSION

For the reasons stated, Plaintiff respectfully requests that this Court reverse

the decision below and remand for further proceedings.

REQUEST FOR ORAL ARGUMENT

Plaintiff’s counsel respectfully requests the opportunity to present oral

argument in order to aid in the resolution of this case. The scope of standing to

enforce Title III of the ADA is an important issue of access to justice for persons

50


with disabilities.

Respectfully submitted,

/s/

Jessica Weber Francis D. Murnaghan Appellate Advocacy Fellow Public Justice Center 1 North Charles St., Suite 200 Baltimore, Maryland 21201

Brien Penn The Law Office of Brien Penn, LLC 3060 Washington Rd., Suite 260 Glenwood, MD 21738

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52

CERTIFICATE OF COMPLIANCE

1. This brief contains 11,741 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 33(a)(6)

because this brief has been prepared in a proportionally-spaced typeface

using Microsoft Office 2003 in Times New Roman 14-point font.

3. In making this certification, I have relied on the word count feature of

the word-processing program used to prepare this brief.

CERTIFICATE OF SERVICE

I hereby certify this 3rd day of May 2011, the foregoing Brief of Appellant

was served on all counsel by the Court’s electronic filing system.

/s/ Jessica Weber


Documents

Appeal: 11-1191 Document: 12 Date Filed: 05/03/2011 Page: 1 of 60bbi.syr.edu/drba/docs/legal_bank/nfb_appeal_daniels... · 2013-03-05 · §§ 1331 and 1343, as the civil rights claim