631 F.3d 939 (9th Cir. 2011), 07-16326, Chapman v. Pier 1 Imports (U.S.) Inc.

Docket Nº:07-16326.
Citation:631 F.3d 939
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:Byron CHAPMAN, Plaintiff-Appellee, v. PIER 1 IMPORTS (U.S.) INC., dba Pier 1 Imports # 1132, Defendant-Appellant.
Attorney:Laura M. Franze (argued) and Richard Cortez, Jr., Hunton & Williams LLP, Dallas, TX, and Roland M. Juarez, Hunton & Williams LLP, Los Angeles, CA, for the appellant. Lynn Hubbard III (argued) and Scottlynn J. Hubbard IV (argued) of the Law Offices of Lynn Hubbard (Chico, CA), for the appellee. Th...
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, KIM McLANE WARDLAW, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges. Opinion by Judge WARDLAW; Concurrence by Judge N...
Case Date:January 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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631 F.3d 939 (9th Cir. 2011)

Byron CHAPMAN, Plaintiff-Appellee,

v.

PIER 1 IMPORTS (U.S.) INC., dba Pier 1 Imports # 1132, Defendant-Appellant.

No. 07-16326.

United States Court of Appeals, Ninth Circuit.

January 7, 2011

Argued and Submitted March 23, 2010.

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Laura M. Franze (argued) and Richard Cortez, Jr., Hunton & Williams LLP, Dallas, TX, and Roland M. Juarez, Hunton & Williams LLP, Los Angeles, CA, for the appellant.

Lynn Hubbard III (argued) and Scottlynn J. Hubbard IV (argued) of the Law Offices of Lynn Hubbard (Chico, CA), for the appellee.

Thomas E. Perez, Samuel Bagenstos (argued), Jessica Dunsay Silver, and Marie K. McElderry of the United States Department of Justice (Washington, D.C.), for amicus the United States.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding. D.C. No. CV-04-01339-LKK.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, KIM McLANE WARDLAW, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge N.R. SMITH.

OPINION

WARDLAW, Circuit Judge:

Byron Chapman is unable to walk unassisted, and he requires the use of a motorized wheelchair when traveling in public. In July 2004, Chapman sued a Pier 1 Imports store (" Pier One" or " Store" ) in Vacaville, California, alleging that some of the Store's architectural features denied him full and equal enjoyment of the premises in violation of the Americans with Disabilities Act (" ADA" ). Chapman requested an injunction requiring the Store to remove the barriers he personally encountered during his visits to the Store that deprived him of full and equal enjoyment because of his wheelchair confinement, as well as barriers that he did not personally encounter but that might impede his access during future visits due to his disability. Chapman also requested monetary damages pursuant to provisions of California law. During discovery, Chapman testified that he was not deterred by the alleged ADA violations; rather, Chapman freely acknowledged that he actually intends to return to the Store, which is located near his home and offers products he finds desirable.

Chapman's complaint provided a list of the architectural barriers existing at the Store, " to the extent known" to him, some of which he alleged that he had personally encountered.1 More than one year after the complaint was filed, and two months before the close of discovery, Chapman submitted an additional report compiled by his expert, Joe Card. The Card Report identified thirty alleged ADA and CBC violations at the Store, some of which were listed in the complaint, others of which

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were new. The parties cross-moved for summary judgment. Chapman's motion papers sought judgment as to only eleven of the alleged barriers, some of which had been listed in his complaint and some of which were identified only in the Card Report. The Store moved for summary judgment on the grounds that Chapman lacks standing and that the asserted barriers were not barriers as a matter of law or had been remedied.

The district court granted Pier One's motion as to numerous challenged barriers, concluding either that Chapman had failed to cite any applicable ADA regulation or that the barrier Chapman identified no longer existed. The court considered each of Chapman's eleven claims, including some that were raised only in the Card Report, finding that Chapman disclosed the violations in sufficient time to permit Pier One to address them in the context of its summary judgment motion. The court granted summary judgment to Chapman as to seven of the barriers listed solely in the Card Report. The parties later jointly stipulated to entry of final judgment, subject to Pier One's reservation of the right to appeal the grant of summary judgment to Chapman and the denial of its motion to strike the Card Report.

Pier One timely appealed, challenging, among other things, the district court's conclusion that Chapman had standing to seek an injunction as to barriers he did not personally encounter. A three-judge panel of our court agreed with Pier One, concluding that Chapman lacked Article III standing as to barriers he had not personally encountered, because they did not deter him from returning to the Store. See Chapman v. Pier 1 Imports (U.S.), Inc., 571 F.3d 853 (9th Cir.2009) (withdrawn). We vacated the panel's decision after a majority of our court's non-recused active judges voted to rehear the appeal en banc to examine the Article III standing doctrine in the context of actions for injunctive relief under the ADA.

We now clarify that when an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for injunctive relief as to that barrier and other barriers related to his disability, even if he is not deterred from returning to the public accommodation at issue. First, we hold that an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility. Second, we hold that an ADA plaintiff who establishes standing as to encountered barriers may also sue for injunctive relief as to unencountered barriers related to his disability. Here, however, Chapman has failed to allege and prove the required elements of Article III standing to support his claim for injunctive relief under the ADA. Specifically, he has not alleged or proven that he personally suffered discrimination as defined by the ADA as to encountered barriers on account of his disability. We therefore vacate the district court's grant of summary judgment, and remand with instructions to dismiss Chapman's ADA claim for lack of jurisdiction and for further proceedings consistent with this opinion.

I.

The ADA was enacted " to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(2). Its passage was premised on Congress's finding that discrimination against the disabled is " most often the product, not of invidious animus, but rather of thoughtlessness and indifference,"

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of " benign neglect," and of " apathetic attitudes rather than affirmative animus." 2 Alexander v. Choate, 469 U.S. 287, 295-96, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). The concept of " discrimination" under the ADA does not extend only to obviously exclusionary conduct-such as a sign stating that persons with disabilities are unwelcome or an obstacle course leading to a store's entrance. Rather, the ADA proscribes more subtle forms of discrimination-such as difficult-to-navigate restrooms and hard-to-open doors-that interfere with disabled individuals' " full and equal enjoyment" of places of public accommodation. 42 U.S.C. § 12182(a); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001); Alexander, 469 U.S. at 295, 105 S.Ct. 712 (noting Congress's conclusion that " we can no longer tolerate the invisibility of the handicapped in America" (quoting 118 Cong. Rec. 525-26 (1972))).

As defined by the ADA, unlawful " discrimination" occurs when features of an accommodation

subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, 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.

42 U.S.C. § 12182(b)(1)(A)(i). In the context of existing facilities, discrimination includes " a failure to remove architectural barriers ... where such removal is readily achievable." Id. § 12182(b)(2)(A)(iv). In the case of newly constructed facilities, compliance with the ADA's antidiscrimination mandate requires that facilities be " readily accessible to and usable by individuals with disabilities." Id. § 12183(a)(1).

Whether a facility is " readily accessible" is defined, in part, by the ADA Accessibility Guidelines (" ADAAG" ). See 28 C.F.R. § 36.406(a); 28 C.F.R. pt. 36, app. A; Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1024-25 (9th Cir.2008) (describing the ADA's regulatory framework), cert. denied, __ U.S. __, 129 S.Ct. 1349, 173 L.Ed.2d 648 (2009). Promulgated by the Attorney General to " carry out the provisions" of the ADA, 42 U.S.C. § 12186(b), these guidelines " lay out the technical structural requirements of places of public accommodation." Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir.2004); see also Indep. Living Res. v. Or. Arena Corp., 982 F.Supp. 698, 714 (D.Or.1997) (" The regulations establish a national standard for minimum levels of accessibility in all new facilities." ). The ADAAG provides the objective contours of the standard that architectural features must not impede disabled individuals' full and equal enjoyment of accommodations. See Pascuiti v. N.Y. Yankees, 87 F.Supp.2d 221, 225 (S.D.N.Y.1999) (quoting a letter in which the Department of Justice stated that it " consider[ed] any element in a facility that does not meet or exceed the requirements set forth in the [ADAAG] to be a barrier to access" ). We have held that " obedience to the spirit of the ADA" does not excuse...

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