The Supreme Court on Wednesday takes up, again, an issue as old as the Constitution: who is allowed to file a lawsuit in federal courts? There are limits, and they are not always easy to satisfy.
Tomorrow’s hearing: Acheson Hotels v. Laufer Beginning at 10 a.m., the hearing is scheduled for one hour.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Background on Wednesday’s case: Americans have a reputation, and they certainly have earned it, of being very fond of suing someone in the courts. This litigious habit exists even though, at least in the federal courts, suing is not openly encouraged by the Constitution.
Article III, which created the federal courts, says that they may only rule on “cases or controversies,” and the Supreme Court declared as early as 1793 that this phrase means that those courts are open only for genuine legal controversies; those courts are not allowed to give legal advice in an abstract way. The Court took that position in a letter to President George Washington, refusing a request for legal advice about the nation’s neutrality when European nations were at war.
Out of that one incident (which, by the way, was itself a kind of advisory opinion; no lawsuit was involved) has grown a large body of law about what is called the “doctrine of standing.” That doctrine is popularly known as the “right to sue” in federal court. (State courts are not bound by that constitutional rule, but many follow it.)
It is not, in fact, a guaranteed right to sue. Anyone who files a federal court case is required, up front, to make a case on three points: (1) that they have been wronged – that is, they have factually been injured; (2) that the lawsuit is aimed at the person or entity that causes that harm, and (3) that there is a remedy that the court can apply if the lawsuit succeeds. Failure on any of those points ends a case, taking away entirely the court’s power to do anything further.
The current majority of the Supreme Court has drawn significant criticism in recent years for several decisions that, according to the critics, suggest that the Justices are lowering that Article III hurdle. One allowed a Colorado designer of wedding websites to refuse to provide services to same-sex couples even though no such couple had ever sought that service. Another allowed a high school football coach in Oregon to say prayers in the middle of the field after games, even though the coach had moved to Florida and seemed to have no genuine interest in getting his job back. And a third allowed a state agency in Missouri to challenge President Biden’s college student loan forgiveness plan, even though that agency was not directly affected by it.
What’s going on here? Some of the harshest critics have argued that the Court’s majority is so determined to advance its conservative agenda that it is willing to relax the “standing” requirement. There may be other explanations, but there does seem to be a distinct trend in the making.
The case the Court will hear on Wednesday will provide another test of the Court’s approach to this issue. It involves lawsuits under a federal civil rights law, the Americans with Disabilities Act, enacted in 1990 to protect persons with physical and mental handicaps from discrimination in access to public programs or facilities and private facilities that are open to the public.
The law gives the U.S. Attorney General authority to write rules for enforcing the ban on discrimination. At issue in this case is a rule that requires hotels, motels and similar facilities to identify and describe the arrangements that they provide to give disabled persons full access if they stay there. The description, on websites or elsewhere, must be clear enough that a disabled person can decide on their own whether their needs would be met there.
The facts of this case: A Florida woman, Deborah Laufer, is a disabled person who uses a wheelchair and has impaired vision. She apparently has filed more than 600 lawsuits in federal courts, challenging various companies that provide lodging, claiming that they do not adequately describe on their websites what facilities they have for disabled persons’ access.
Ms Laufer has filed those claims even though, probably in all of the cases, she has no intention of making reservations to stay at those facilities, and has not personally visited them. She has said she is most interested in checking up on ADA violations, and getting her legal fees paid; she does not ask for money damages. Similar lawsuits, the Court has been told, have been filed by others, in many hundreds of cases; often, they are against small businesses, which at least sometimes opt to settle to avoid the expense of court proceedings.
This case arose four years ago, when Laufer filed seven lawsuits under the ADA law in federal court in Maine. This specific case aimed at Acheson Hotels, which operated the Coast Village Inn and Cottages, located in Wells, a small resort town that attracts summer visitors. She also included in her lawsuit a challenge to booking sites not affiliated with Acheson, to check on what they said about the Acheson lodging. (New facts that might become significant as this case unfolds in the Court are, first, that Acheson Hotels no longer owns that property, and, second, Laufer’s lawyers have told the Court that she has dropped that case and is dropping similar cases in other courts. That could mean the case might end without a decision on her right to sue.)
The legal foundation of Laufer’s claim that she has “standing” is that she is a “tester,” using lawsuits to help enforce the ADA law and the government regulations implementing the law.
Her lawyers have relied on prior Supreme Court rulings declaring that, sometimes, testers do have a right to sue if they have interests that are protected by those provisions. In a sense, they are helping the federal government enforce the ADA, acting in their own capacity as a kind of “private attorney general.”
The Biden Administration’s Justice Department, which does support some use of “testers” to help enforce federal law, has entered the case out of a fear that the coming decision might go too far to curtail that practice; it seeks a narrower final decision on that point. However, it does argue that Laufer had no right to sue in this case.
A federal trial judge ruled that she Laufer lacked “standing” because she could not show that she had been injured. It found that the absence of any information about accommodations at given lodgings did not affect a person who had no plan to visit such a facility.
A federal appeals court, however, ruled that Laufer was properly pursuing her challenge to Acheson Hotels. It did not matter, that court decided, that she had no plan to make a reservation or visit the facility, or that she sought information only for purposes of pursuing a lawsuit.
It found a right to sue in her “feelings of frustration, humiliation, and second-class citizenry,” which, it said, are “downstream consequences and adverse effects of the informational injury.” This is what, in technical legal terms, is called “stigmatic injury.”
The federal appeals courts are split on a “tester” right to sue, and the Supreme Court’s own prior rulings seem to conflict with each other. Those factors apparently led the Supreme Court to agree to sort out the dispute. The possibility that the case may come to naught, because of changed circumstances, did not arise until after the Court had granted review.
The question before the Court: Does an individual have a right to sue in federal court to enforce the federal ban on discrimination against disabled persons by operators of hotels, motels and inns, if that individual has no intention ever to visit that facility?
Significance: Injury – the first fact that must be credibly claimed in order to sue in federal court — can be quite hard to show. A mere bystander to an incident that causes harm to someone else, for example, cannot sue over that incident because nothing directly happened to the bystander other than, perhaps, a feeling of sympathy. But, once the person who seeks to sue has somewhat more at stake, it can become tricky to determine whether they have genuinely suffered an injury.
This has given rise to a legal concept: so-called “stigmatic injury,” which is a form of emotional distress that is said to be suffered by a person when they are the victims of discrimination, and seek to sue for a remedy under a law that bans such bias. That is the kind of injury that Deborah Laufer claimed when she sued lodgings about what she failed to find on their websites or promotional literature about access for the disabled.
The Supreme Court’s most significant ruling on that type of injury was decided in 1982, in the case of Havens Realty v. Coleman. The Court unanimously allowed a black person to sue a real estate company over racial discrimination in housing after an agent said no apartments were available while another “tester,” who was white, had been told that units were available. The Court ruled that the black individual could sue because the housing law guaranteed a right to “truthful information.” It was that right that the black “tester” was asserting, the Court said, and its denial was sufficient injury.
However, when the Court in 2021 decided the case of TransUnion v. Ramirez, a case more generally analyzing the “standing” doctrine, the Court split 5-to-4 as it appeared to be sharply narrowing the doctrine. That was a case in which thousands of individuals sued over what they claimed were false credit reports about them, suggesting that they might be drug traffickers or “terrorists.” The lawsuits claimed violations of a federal law that bars consumer credit reporting agencies from creating false reports, and gives individuals named in such reports a right to sue.
The majority ruled, however, that it was not enough to satisfy “standing” that there was a law creating a right to a fair report, along with a right to sue to enforce it. In order to sue, it said, each person had to show that they had suffered a “concrete” injury of a kind that had been recognized in legal tradition.
That case did not involve “testers,” but the ruling appeared to undercut the Court’s 1982 decision in the fair housing case that a “tester” could sue over not getting truthful information that a law gave them a right to receive and a right to sue if that had not happened. Some lower court judges have suggested that the 2021 and 1982 decisions cannot be reconciled.
The case being heard on Wednesday provides the Justices with an almost ideal situation for new guidance on a core constitutional question, one that has an important effect on private lawsuits that help the federal government enforce laws.
But hanging over the case is the very real possibility that, since Laufer has supposedly abandoned her busy campaign as a “tester” under the ADA, and the inn involved in this dispute has a new owner, there may be nothing left of this appeal. The Court will have to resolve that question before it would have the authority to deal with the doctrine of “standing.”
The Court will resume hearings next Tuesday; Monday is a legal holiday. On Tuesday, the Court will hear two cases: the first seeks to clarify a 2002 law that protects corporate employees from being fired for reporting illegal activity by their firm; the second involves a clash between federal maritime law and state law in a dispute over insurance coverage when a yacht runs aground and is damaged.
