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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 5, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
DEBORAH LAUFER,
Plaintiff - Appellant,
v. No. 21-1031
RANDALL J. LOOPER; CYNTHIA C.
LOOPER, d/b/a Elk Run Inn,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:20-CV-02475-NYW)
_________________________________
Thomas B. Bacon, Thomas B. Bacon Law Office, Mount Dora, Florida, for PlaintiffAppellant.
Stephen B. Rotter (Jennifer L. Gokenbach, with him on the brief), The Workplace
Counsel, Denver, Colorado, for Defendant-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Deborah Laufer is qualified as disabled under the Americans with Disabilities
Act (“ADA”) and is a self-described ADA “tester.” In that capacity, she visited the
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Elk Run Inn’s online reservation system (“ORS”) to determine whether it complied
with the ADA, though she has no intention to stay there.
Ms. Laufer sued Randall and Cynthia Looper, the owners of the Elk Run Inn,
alleging that the ORS lacked information about accessibility in violation of an ADA
regulation. The district court dismissed Ms. Laufer’s complaint without prejudice for
lack of Article III standing because she failed to allege that she had suffered a
concrete and particularized injury. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
I. BACKGROUND
A. ADA Title III
Title III of the ADA “generally prohibits public accommodations from
discriminating against individuals on the basis of disability.” Levorsen v.
Octapharma Plasma, Inc., 828 F.3d 1227, 1229 (10th Cir. 2016). It provides that
“[n]o individual shall be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.”
42
U.S.C. § 12182(a).
The Department of Justice promulgated a regulation under Title III stating that
a place of public accommodation (“PPA”) operating a “place of lodging” shall, “with
respect to reservations made by any means,” “[i]dentify and describe accessible
features in the hotels and guest rooms offered through its reservations service in
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enough detail to reasonably permit individuals with disabilities to assess
independently whether a given hotel or guest room meets his or her accessibility
needs.” 28 C.F.R. § 36.302(e)(1)(ii) (the “ORS Regulation”).
B. Ms. Laufer’s Allegations
Ms. Laufer, a resident of Pasco County, Florida, uses a wheelchair and
requires accommodations due to her disability. In her complaint, she described
herself as an “advocate of the rights of similarly situated disabled persons” and a
“‘tester’ for the purpose of asserting her civil rights and monitoring, ensuring, and
determining whether places of public accommodation and their websites are in
compliance with the ADA.” App. at 10.
The Loopers own the Elk Run Inn, a hotel in Craig, Colorado. Ms. Laufer
alleged that the Elk Run Inn is a PPA.1 She averred that the Loopers used an ORS
for the Elk Run Inn “so that members of the public may reserve guest
accommodations and review information pertaining to the goods, services, features,
facilities, benefits, advantages, and accommodations of the Property.” Id. at 12.
Ms. Laufer “visited the ORS for the purpose of reviewing and assessing the
accessible features at the Property and ascertain[ing] whether it meets the
requirements of 28 C.F.R. Section 36.302(e) and her accessibility needs.” Id. She
alleged that she was “unable to do so because Defendant failed to comply with the
1
For purposes of this appeal, we assume that the Elk Run Inn satisfies the
ADA’s definition of “place of public accommodation.” See 42
U.S.C. § 12181(7)(A).
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requirements” of that regulation. Id. Specifically, Ms. Laufer said the Elk Run Inn’s
ORS “did not identify accessible rooms, did not allow for booking of accessible
rooms and provided insufficient information as to whether the rooms or features at
the hotel are accessible.”
Id. at 13.
These violations, Ms. Laufer claimed, infringed her “right to travel free of
discrimination and deprive her of the information required to make meaningful
choices for travel.” Id. at 14–15. Because the ORS did not identify accessible
rooms, “it is thereby more difficult to book a room at the hotel or make an informed
decision as to whether the facilities at the hotel are accessible.”
Id. at 15.
Ms. Laufer further alleged that “[i]n the near future” she “intends to revisit
Defendants’ ORS in order to test it for compliance with 28 C.F.R. Section 36.302(e)
and/or to utilize the system to reserve a guest room and otherwise avail herself of the
goods, services, features, facilities, benefits, advantages, and accommodations of the
Property.” Id. at 14.
C. Procedural History
Ms. Laufer sued the Loopers in federal district court, claiming violations of
Title III of the ADA and its Colorado state law counterpart. The Loopers moved to
dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
arguing that Ms. Laufer lacked standing and, alternatively, that she had failed to state
a claim.
In response to the motion, Ms. Laufer submitted a sworn declaration. It
largely repeated the allegations of her complaint, but added that her niece lives in
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Colorado, she visits her there approximately once a year, and she “plans to travel . . .
there as soon as the Covid crisis is over and it is safe to travel.” Id. at 123. When
she goes to Colorado, she “intend[s] to travel all throughout the State.”
Id.
The district court dismissed the complaint under Rule 12(b)(1) for lack of
Article III standing, concluding that Ms. Laufer’s alleged injury was neither concrete
nor particularized. The court said Ms. Laufer had not alleged an intent to use the
ORS to “book an accessible room for [her] actual use.” Id. at 442. Absent such an
intent, Ms. Laufer could not establish a concrete injury based solely on her accessing
the noncompliant ORS.
II. DISCUSSION
A. Standard of Review
A party filing a 12(b)(1) motion may challenge the court’s subject-matter
jurisdiction through a facial or factual attack. Baker v. USD 229 Blue Valley, 979
F.3d 866, 872 (10th Cir. 2020). “A facial attack assumes the allegations in the
complaint are true and argues they fail to establish jurisdiction. A factual attack goes
beyond the allegations in the complaint and adduces evidence to contest jurisdiction.”
Id. (citations omitted).
The district court noted it was “not clear whether Defendants assert a facial or
factual challenge to the court’s subject matter jurisdiction.” App. at 435 n.2. It
analyzed the motion to dismiss “as asserting both a facial and a factual challenge.”
Id. Because the Loopers have not adduced any evidence outside the pleadings to
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contest jurisdiction, we address this issue as a facial challenge and review de novo.
Collins v. Daniels, 916 F.3d 1302, 1311 (10th Cir. 2019).
B. Legal Background
The following describes (1) the general legal framework for Article III
standing and (2) recent Supreme Court decisions explaining the difference between
statutory violations and concrete injuries in fact.
Article III Standing
Article III of the Constitution permits federal courts to decide only “Cases” or
“Controversies.” U.S. Const. art. III, § 2. “To establish a case or controversy, a
plaintiff must possess standing to sue.” S. Furniture Leasing, Inc. v. YRC, Inc., 989
F.3d 1141, 1145 (10th Cir. 2021). For Article III standing, a plaintiff must have (1)
“suffered an injury in fact,” (2) that is “fairly traceable to the challenged action of the
defendant,” and (3) that is likely to be “redressed by a favorable decision.” Lujan v.
Defs. of Wildlife,
504 U.S. 555, 560–61 (1992) (quotations and alterations omitted).
These requirements ensure that “the plaintiff has alleged such a personal stake in the
outcome of the controversy as to warrant his invocation of federal-court jurisdiction.”
Summers v. Earth Island Inst.,
555 U.S. 488, 493 (2009) (quotations omitted).
This appeal turns on injury in fact—“an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (quotations and citations omitted). For an
injury to be particularized, it “must affect the plaintiff in a personal and individual
way.”
Id. at 560 n.1. To be “concrete,” an injury must be “real” rather than
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“abstract.” Lupia v. Medicredit, Inc., 8 F.4th 1184, 1190 (10th Cir. 2021). But
“‘concrete’ is not necessarily synonymous with ‘tangible.’”
Id. at 1191 (quotations
and alterations omitted). An alleged future injury is sufficiently imminent “if the
threatened injury is certainly impending, or there is a substantial risk that the harm
will occur.” Susan B. Anthony List v. Driehaus,
573 U.S. 149, 158 (2014)
(quotations omitted).
Recent Developments
In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and TransUnion, LLC v.
Ramirez,
141 S. Ct. 2190 (2021), the Supreme Court explained that a statutory
violation does not necessarily establish injury in fact.
a. Spokeo
In Spokeo, the Court explained that “Article III standing requires a concrete
injury even in the context of a statutory violation.” 136 S. Ct. at 1549. The plaintiff
alleged that the defendant’s website contained inaccurate biographical information
about him in violation of the Fair Credit Reporting Act (“FCRA”).2
Id. at 1546. On
appeal, the Ninth Circuit had concluded the plaintiff had standing because “Spokeo
violated his statutory rights, not just the statutory rights of other people.”
Id. at 1546
2
The FCRA requires covered entities to “follow reasonable procedures to
assure maximum possible accuracy of” consumer reports, to “notify providers and
users of consumer information of their responsibilities under the Act,” to “limit the
circumstances in which such agencies provide consumer reports ‘for employment
purposes,’” and to “post toll-free numbers for consumers to request reports.” Id. at
1545 (citing 15 U.S.C. §§ 1681e(b)(d), 1681b(b)(1), 1681j(a)).
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(quoting Robins v. Spokeo, Inc., 742 F.3d 409, 413 (9th Cir. 2014)). But that
analysis, the Supreme Court said, did not consider “whether the particular procedural
violations alleged in this case entail a degree of risk sufficient to meet the
concreteness requirement.” Id. at 1550. In other words, the circuit court addressed
“particularity” but ignored “concreteness.” Id.
The Court explained that, “[i]n determining whether an intangible harm
constitutes injury in fact, both history and the judgment of Congress play important
roles.” Id. at 1549. First, “it is instructive to consider whether an alleged intangible
harm has a close relationship to a harm that has traditionally been regarded as
providing a basis for a lawsuit in English or American courts.” Id. Second, “because
Congress is well positioned to identify intangible harms that meet minimum Article
III requirements, its judgment is also instructive and important.” Id. Thus,
“Congress may elevate to the status of legally cognizable injuries concrete, de facto
injuries that were previously inadequate in law.” Id. (quotations and alteration
omitted). But the Court cautioned that “Congress’ role in identifying and elevating
intangible harms does not mean that a plaintiff automatically satisfies the injury-in-
fact requirement whenever a statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right.” Id.
b. TransUnion
The Supreme Court expanded upon these principles in TransUnion.
TransUnion, like Spokeo, involved an alleged violation of the FCRA. The plaintiff
could not purchase a car because, according to his TransUnion credit report, his name
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matched that of an individual on the Treasury Department’s Office of Foreign Asset
Control (“OFAC”) list. TransUnion, 141 S. Ct. at 2201. He brought a class action
under the FCRA, alleging that TransUnion failed (1) to follow reasonable procedures
to ensure the accuracy of information in his credit file, (2) to provide him with all the
information in his credit file upon request, and (3) provide him with a required
“summary of rights” “with each written disclosure.”
Id. at 2202.
The Court, building on its Spokeo analysis, emphasized that “Congress’s
creation of a statutory prohibition or obligation and a cause of action does not relieve
courts of their responsibility to independently decide whether a plaintiff has suffered
a concrete harm under Article III.” Id. at 2205. “For standing purposes, therefore, an
important difference exists between (i) a plaintiff’s statutory cause of action to sue a
defendant over the defendant’s violation of federal law, and (ii) a plaintiff’s suffering
concrete harm because of the defendant’s violation of federal law.”
Id. In other
words, “under Article III, an injury in law is not an injury in fact.”
Id. “Article III
grants federal courts the power to redress harms that defendants cause plaintiffs, not
a freewheeling power to hold defendants accountable for legal infractions.”
Id.
(quotations omitted). Thus, “[o]nly those plaintiffs who have been concretely
harmed by a defendant’s statutory violation may sue that private defendant over that
violation in federal court.”
Id.
C. Analysis
The following discussion concludes that Ms. Laufer’s complaint fails to
establish injury in fact under Spokeo and TransUnion. It also concludes that the
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cases Ms. Laufer relies upon for standing are distinguishable and fail to rescue her
complaint from dismissal for lack of Article III jurisdiction. We therefore affirm the
district court.
No Injury in Fact under Spokeo and TransUnion
Ms. Laufer lacks Article III standing to pursue her claims against the Loopers
because she has not suffered a concrete injury in fact. She contends that the ORS
failed to provide the information she needed as a disabled person to access the Elk
Run Inn.3 Ms. Laufer has conceded, however, that she has no concrete plans to visit
Craig, Colorado, or to book a room at the Elk Run Inn. She therefore has not alleged
any concrete harm resulting from the Loopers’ alleged violation of the ORS
Regulation.4
Ms. Laufer counters that she suffered harm when she visited the Elk Run Inn’s
ORS and discovered it was non-compliant with the ORS Regulation. But a violation
3
She has not alleged that she was unable to fully access the ORS itself.
4
The district court rejected Ms. Laufer’s contention that she “need not allege
an intent to visit the physical PPA to suffer an injury in fact and has suffered an
injury in fact based solely on the use of the noncompliant [ORS].” App. at 440. On
appeal, she argues the district court “completely ignored the rules of statutory
construction, the plain and unambiguous language of the statute and Regulation, and
instead improperly imposed the additional requirement of ‘intent’ into the governing
statutory language, where Congress had omitted it.” Aplt. Br. at 12. But Ms. Laufer
misapprehends the district court’s Article III analysis as statutory interpretation.
After the district court noted that Ms. Laufer did not intend to stay at the Elk Run
Inn, it concluded that Ms. Laufer lacked Article III standing because she had not
suffered a concrete and particularized injury in fact. The court was addressing a
constitutional question and was not interpreting the statute or the ORS Regulation.
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of a legal entitlement alone is insufficient under Spokeo and TransUnion to establish
that Ms. Laufer suffered a concrete injury. “Article III standing requires a concrete
injury even in the context of a statutory violation.” Spokeo, 136 S. Ct. at 1549. And
that concrete injury “must affect the plaintiff in a personal and individual way.”
Id.
at 1548 (quotations omitted). Ms. Laufer did not suffer a concrete injury. The
district court properly dismissed her action for lack of Article III jurisdiction.
Ms. Laufer’s Arguments
Ms. Laufer relies primarily on three Supreme Court cases and two Tenth
Circuit cases to argue she suffered an injury in fact and therefore has standing under
Article III. Her reliance is misplaced because each of these cases is distinguishable.
We address them below.
a. Fair Housing Act Testers
Ms. Laufer argues that she has been injured in much the same way as the Fair
Housing Act (“FHA”) “tester” in Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982). But the FHA tester in that case was given false information based on
discrimination and, as we explain below, Ms. Laufer has made no comparable
allegations here.
Havens Realty
In Havens Realty, the Supreme Court held that a “tester” could sue under the
FHA. 455 U.S. at 374. The Court described “testers” as “individuals who, without
an intent to rent or purchase a home or apartment, pose as renters or purchasers for
the purpose of collecting evidence of unlawful steering practices.”
Id. at 373.
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Two “testers”—one Black and one White—sued Havens Realty after its agent
falsely represented to the Black tester—but not the White tester—that no housing
units were available. Id. at 368. They sued under the FHA, which made it unlawful
for a covered individual or firm “to represent to any person because of race, color,
religion, sex, or national origin that any dwelling is not available for inspection, sale,
or rental when such dwelling is in fact so available.”
Id. at 373 (quoting
42 U.S.C.
§ 3604(d)) (alteration omitted). The statute also created an explicit cause of action.
Id.;
42 U.S.C. § 3612(a).
Ms. Coleman, the Black tester, argued that she had suffered a “distinct and
palpable injury.” Id. at 372 (quoting Warth v. Seldin,
422 U.S. 490, 501 (1975)).
The Court agreed—she was given untruthful information about the availability of
housing for discriminatory reasons. Id. at 374. She had standing to sue because she
had “alleged injury to her statutorily created right to truthful housing information.”
455 U.S. at 374. The White tester, Mr. Willis, did not have standing as a tester
because the agent gave him accurate information about the availability of housing.
Id. at 375.
The Court observed that the FHA confers on “all ‘persons’” an “enforceable
right to truthful information concerning the availability of housing.” Id. at 373.
Thus,
[a] tester who has been the object of a misrepresentation
made unlawful under [the FHA] has suffered injury in
precisely the form the statute was intended to guard
against, and therefore has standing to maintain a claim for
damages under the Act’s provisions. That the tester may
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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 § 804(d).
Id. at 373–74.
Ms. Laufer’s argument
Ms. Laufer argues that she has standing under Havens Realty because she is a
“tester.” But testers, like any other plaintiff, must satisfy the constitutional
requirements of Article III. Ms. Laufer’s status as a tester alone is insufficient to
confer standing. Havens Realty is distinguishable because the plaintiff, Ms.
Coleman, had suffered a concrete and particularized injury in fact.
Ms. Laufer further argues she suffered informational harm. She compares
herself to Ms. Coleman, who had no intention of renting a home at the defendants’
property but had standing under the FHA to sue for a violation of her “statutorily
created right to truthful housing information.” Id. at 374. Ms. Laufer argues that she
similarly has standing under the ADA to sue for a violation of her legal entitlement to
information even though she has no intention of booking a room at the Elk Run Inn.
We disagree.
Ms. Coleman was not just denied information. On four separate occasions, she
asked about housing availability and was given false information because of her race.
Ms. Laufer has not alleged that the Loopers gave her false information. Nor has she
alleged they denied her information because of her disability. All individuals,
whether or not disabled, had access to the same information on the Elk Run Inn’s
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ORS. Ms. Laufer’s alleged injury—her discovery that the ORS lacked certain
information—is thus distinct from the injury suffered in Havens Realty, which was
grounded in misrepresentation and racial animus. See Trichell v. Midland Credit
Mgmt., Inc., 964 F.3d 990, 1005 (11th Cir. 2020) (“[T]he Fair Housing Act does not
seek to vindicate some amorphous interest in receiving unusable housing
information. Instead, it protects the weighty interest in not being subjected to racial
discrimination, which can inflict a concrete injury on anyone who personally
experiences it.” (quotations omitted)); Ragin v. Harry Macklowe Real Estate Co.,
6 F.3d 898, 904 (2d Cir. 1993) (“There is no significant difference between the
statutorily recognized injury suffered by the tester in Havens Realty and the injury
suffered by [plaintiffs] who were confronted by advertisements indicating a
preference based on race.”).
b. Informational Injury – Public Citizen and Akins
In addition to Havens Realty, Ms. Laufer cites two other Supreme Court
decisions to support her informational harm theory of injury in fact.
Public Citizen
In Public Citizen v. Department of Justice, 491 U.S. 440 (1989), the plaintiffs
argued that the American Bar Association’s Standing Committee on the Federal
Judiciary (“ABA Committee”), which the Department consulted to evaluate potential
judicial nominees, should be subject to the notice requirements of the Federal
Advisory Committee Act (“FACA”).
Id. at 449. The plaintiffs sought “access to the
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ABA Committee’s meetings and records in order to monitor its workings and
participate more effectively in the judicial selection process.” Id.
Analogizing to Freedom of Information Act cases, the Court held that “refusal
to permit appellants to scrutinize the ABA Committee’s activities to the extent FACA
allows constitutes a sufficiently distinct injury to provide standing to sue.” Id. It
noted that “decisions interpreting the Freedom of Information Act have never
suggested that those requesting information under it need show more than that they
sought and were denied specific agency records.”
Id.
Akins
In FEC v. Akins, 524 U.S. 11 (1998), a group of voters sought to compel the
Federal Election Commission to designate the American Israel Public Affairs
Committee (“AIPAC”) as a “political committee” under the Federal Election
Campaign Act of 1971. Doing so would require AIPAC to publicly disclose certain
financial information. The Court explained, “[t]he ‘injury in fact’ that respondents
have suffered consists of their inability to obtain information—lists of AIPAC donors
. . . , and campaign-related contributions and expenditures—that, on respondents’
view of the law, the statute requires that AIPAC make public.”
Id. at 21.
The Court found “no reason to doubt [the plaintiffs’] claim that the
information would help them (and others to whom they would communicate it) to
evaluate candidates for public office, especially candidates who received assistance
from AIPAC, and to evaluate the role that AIPAC’s financial assistance might play in
a specific election.” Id. It concluded that “the informational injury at issue here,
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directly related to voting, the most basic of political rights, is sufficiently concrete
and specific such that the fact that it is widely shared does not deprive Congress of
constitutional power to authorize its vindication in the federal courts.” Id. at 24–25.
Ms. Laufer’s argument
Ms. Laufer argues she has suffered an “informational injury” of the sort
recognized in Public Citizen and Akins—that is, she has been deprived of information
to which she is legally entitled. Aplt. Br. at 27–40. The Supreme Court’s recent
decision in TransUnion shows why this argument fails. In that case the United
States, participating as amicus, argued that the plaintiffs had suffered an
“informational injury” under Public Citizen and Akins when TransUnion allegedly
failed to provide them with required disclosures in a specified format under the
FCRA. The Court rejected this argument in part because “the plaintiffs have
identified no ‘downstream consequences’ from failing to receive the required
information.” TransUnion, 141 S. Ct. at 2214 (quoting Trichell, 964 F.3d at 1004).
“An asserted informational injury that causes no adverse effects cannot satisfy
Article III.” Id. (quotations omitted).5
In Public Citizen and Akins, the plaintiffs identified such adverse effects.
They alleged an intent to use the information to participate in the judicial selection
5
Although this statement from TransUnion is arguably dicta, we are “bound
by Supreme Court dicta almost as firmly as by the Court’s outright holdings,
particularly when the dicta is recent and not enfeebled by later statements.” N. Mill
St., LLC v. City of Aspen, 6 F.4th 1216, 1228 n.11 (10th Cir. 2021) (quotations
omitted).
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and the political process, respectively. Thus, in both cases, the information the
plaintiffs sought had “some relevance” to them. See Griffin v. Dep’t of Labor Fed.
Credit Union, 912 F.3d 649, 654 (4th Cir. 2019).
Unlike the plaintiffs in Akins and Public Citizen, Ms. Laufer has not alleged
that she has any interest in using the information she obtained from the Elk Run Inn’s
ORS beyond bringing this lawsuit. She has no plans to visit Craig, Colorado. She
did not attempt to book a room at the Elk Run Inn and has no intent to do so. She
therefore has not suffered an injury of the type recognized in Public Citizen or
Akins.6
Although Ms. Laufer may have had a regulatory right to the information she
sought here, she has not demonstrated that the defendants’ failure to provide that
information caused her to suffer an injury in fact.
6
The Fifth Circuit recently said, to allege an informational injury, Ms. Laufer
“would need to allege at least that the information had ‘some relevance’ to her.”
Laufer v. Mann Hosp., LLC, 996 F.3d 269, 273 (5th Cir. 2021) (quotations omitted);
see also Griffin,
912 F.3d at 654 (“Inability to obtain information is sufficiently
concrete to constitute injury in fact only when the information has some relevance to
the litigant.”); Brintley v. Aeroquip Credit Union,
936 F.3d 489, 493 (6th Cir. 2019)
(same).
Ms. Laufer argues that, unlike the plaintiffs in Griffin, she is legally entitled to
the information she seeks. Aplt. Br. at 37-40. But, as the Court explained in Spokeo
and TransUnion, violation of a legal entitlement is not the same as an injury in fact.
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c. ADA Testers – Tandy and Colorado Cross Disability Coalition
Ms. Laufer also attempts to rely on Tenth Circuit cases holding that testers
may have standing to sue under both Title II7 and Title III of the ADA—Tandy v.
City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004) (Title II); Colo. Cross
Disability Coal. v. Abercrombie & Fitch Co.,
765 F.3d 1205, 1211 (10th Cir. 2014)
(Title III). These cases again are distinguishable.
Tandy
In Tandy, several ADA “testers” sued the City of Wichita alleging that its
“fixed-route bus system was intentionally inaccessible to and unusable by people
with disabilities.” 380 F.3d at 1280. Each plaintiff was disabled under the ADA.
Id. at 1280 n.2. Each “attempted to access Wichita Transit’s fixed-route buses in
order to test the system for accessibility.”
Id. at 1281.
After determining that “testers” could bring a cause of action under Title II of
the ADA, we separately analyzed whether each plaintiff had Article III standing. We
concluded that all but one had suffered an injury in fact because they had used or
intended to use the bus service alleged to be noncompliant with the ADA:
Plaintiff Goupil, who used a wheelchair, was “under a
real and immediate threat of experiencing a lift
malfunction” because he “averred that he intends to test
7
Title II of the ADA makes it illegal for a public entity to discriminate against
a qualified individual with a disability in the provision of government programs,
activities, and services. 42 U.S.C. § 12132; J.V. v. Albuquerque Pub. Schs.,
813 F.3d
1289, 1295 (10th Cir. 2016).
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Wichita Transit’s fixed-route services several times per
year.” 380 F.3d at 1287.
Plaintiff Donnell, who was vision impaired, “averred
that she intends to test Wichita Transit’s fixed-route
buses several times per year,” and “Wichita Transit’s
transit centers did not house any Braille materials and
had limited Braille signage.” Id. at 1288.
Plaintiff Jeffries, who was hearing impaired, “averred
that Wichita Transit’s [Telecommunications Device for
the Deaf (“TDD”)] line never worked when she called
it several times in the past,” and “testified that she
intends to call the TDD line once per month in the
future.” Id. at 1289.
We held that each of these plaintiffs had standing to pursue a Title II claim.8
Each had attempted to access a service—either the actual bus service or the TDD
information line—and was unable to do so because of a disability. Pointing to
Havens Realty, we concluded that the plaintiffs had standing to sue even though their
“sole purpose” was “to determine whether defendant engaged in unlawful practices.”
Id. at 1285.
Colorado Cross Disability Coalition
In Colorado Cross Disability Coalition, a tester sued the owners of a retail
store under Title III, alleging that their stores were inaccessible to individuals who
use wheelchairs. Extending Tandy to Title III, we held that “anyone who has
8
By contrast, plaintiff Garnett did not have standing to seek prospective relief.
He had “merely alleged, in the complaint, that he ‘desires’ to use Wichita Transit’s
fixed-route bus system.” Id. at 1288. He “submitted no affidavit stating an intent to
utilize Wichita Transit’s fixed-route buses in the future.”
Id.
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suffered an invasion of the legal interest protected by Title III may have standing,
regardless of his or her motivation in encountering that invasion.” 765 F.3d at 1211.
But we also emphasized that “the fact that ‘tester standing’ exists under Title III does
not displace the general requirements of standing.”
Id.
We concluded that the tester had Article III standing because she averred that
she intended to return to the defendants’ store at least six times per year. Id. This
was enough to “suggest[] a concrete, present plan to return” to the store.
Id. The
tester therefore demonstrated “that she suffers a real and imminent threat of
encountering the alleged accessibility barrier . . . in the future.”
Id. at 1212. Ms.
Laufer, by contrast, has not alleged she will encounter any accessibility barriers
because she has no intention of attempting to access the Elk Run Inn.
Ms. Laufer’s argument
Citing these cases, Ms. Laufer again argues that “anyone,” including a tester,
“who has suffered an invasion of the legal interest protected by Title III may have
standing, regardless of his or her motivation in encountering that invasion.” Id.
at 1211. But testers still must “satisfy the constitutional requirements of Article III.”
Tandy,
380 F.3d at 1287. “Like any plaintiff, a tester must demonstrate that she has
indeed suffered a cognizable injury in fact that will be redressed by the relief
sought.” Colo. Cross Disability Coal.,
765 F.3d at 1211. Ms. Laufer’s “assumed
status as an ‘ADA tester’ does not absolve her of the need to show an injury in fact
for standing purposes.” Mann Hosp.,
996 F.3d at 273. In short, Ms. Laufer’s status
as a tester does not defeat standing, but nor does it automatically confer standing.
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Ms. Laufer argues that her “encounter with discrimination” is “substantially
similar” to that of Ms. Jeffries in Tandy. Aplt. Br. at 42. But Ms. Jeffries averred
that she had attempted to access the TDD line—and planned to do so again in the
future—and was unable to access the information she sought because the line itself
was inaccessible to hearing impaired persons. Tandy, 380 F.3d at 1289. Here, on the
other hand, Ms. Laufer has not alleged that she was prevented from accessing the
ORS because of her disability. And her alleged intent to access the ORS again to test
its compliance with the ADA does not suffice to establish a concrete injury.9
…
Ms. Laufer has disclaimed any interest in booking a room at the Elk Run Inn.
She therefore has no concrete interest in the information required by the ORS
Regulation, and has not suffered an injury in fact. Although testers may have
standing under the ADA regardless of their motivations for encountering a violation,
they still must satisfy the constitutional requirements of Article III. Because she has
failed to do so, Ms. Laufer lacks standing to pursue her claims against the Loopers.
III. CONCLUSION
We affirm the judgment of the district court.
9
Ms. Laufer’s brief does not present the “stigmatic” or “dignitary” harm
theory of standing that the district court rejected below. See App. at 444–45. We
therefore decline to address that theory of injury.
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