Laufer v. Arpan LLC

• Citation: 29 F.4th 1268
• Decision Date: 29 March 2022
• Docket Number: No. 20-14846,20-14846
• Parties: Deborah LAUFER, Plaintiff-Appellant, v. ARPAN LLC, d.b.a. America's Best Value Inn, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

29 F.4th 1268

Deborah LAUFER, Plaintiff-Appellant,

v.ARPAN LLC, d.b.a. America's Best Value Inn, Defendant-Appellee.

No. 20-14846

United States Court of Appeals, Eleventh Circuit.

Filed: March 29, 2022

Thomas B. Bacon, Thomas B. Bacon, PA, Orlando, FL, Philip Michael Cullen, III, Philip Michael Cullen, III, Chartered, Fort Lauderdale, FL, for Plaintiff-Appellant.

Jason L. Harr, The Harr Law Firm, Daytona Beach, FL, for Defendant-Appellee.

Before Jordan, Newsom, and Ed Carnes, Circuit Judges.

Newsom, Circuit Judge:

Another day, another standing case. In this iteration, we have to decide whether an ADA plaintiff suffered a "concrete" injury when she viewed a hotel's website that omitted accessibility-related information required by federal regulations and as a result, she says, experienced "frustration and humiliation"—even though she admits that she had (and has) no intention to personally visit the hotel. Today's case raises difficult questions about how to apply sometimes dissonant standing precedents. But in the final analysis, our recent decision in Sierra v. City of Hallandale Beach , 996 F.3d 1110 (11th Cir. 2021) —which, in turn, relied on the Supreme Court's decisions in Heckler v. Mathews , 465 U.S. 728, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984), and Allen v. Wright , 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) —requires us to hold, at this stage of the proceedings, that our plaintiff has at least alleged an Article-III-qualifying "stigmatic" injury.

I

Deborah Laufer is "disab[led]" within the meaning of the Americans with Disabilities Act: She has trouble walking without assistive devices, can't use her hands normally, and is visually impaired. See 42 U.S.C. § 12102(1)(A). She is a self-described advocate for disabled people's rights and a "tester" who monitors whether places of public accommodation and their websites comply with the ADA. In 2019, in the Northern District of Florida alone, Laufer filed more than 50 ADA lawsuits against hotel owners. Arpan, LLC, the owner of America's Best Value Inn in Marianna, Florida, maintains an online reservation system that Laufer says violates the ADA and its implementing regulations.

In pertinent part, the ADA states 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." 42 U.S.C. § 12182(a). In particular, the Act prohibits affording disabled persons an unequal ability to participate in or benefit from a service or accommodation, id. § 12182(b)(1)(A)(ii), and failing to make "reasonable modifications in policies, practices, or procedures" when "necessary" to ensure such participation, id. § 12182(b)(2)(A)(ii). The ADA provides a cause of action for any person "aggrieved" by a violation of the statute, see id. §§ 2000a-3(a), 12188(a)(1) (noting that § 2000a-3(a) applies to those "being subjected to discrimination on the basis of disability" or who have "reasonable grounds for believing" that they are "about to be subjected to discrimination"), and directs the Attorney General to promulgate regulations to carry out the Act's provisions, id. § 12186(b).

One of those regulations applies to hotel owners and operators, and governs "reservations made by any means, including by telephone, in-person, or through a third party." 28 C.F.R. § 36.302(e). As particularly relevant here, the regulation requires hotels to "[m]odify [their] policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms ... in the same manner as individuals who do not need accessible rooms." Id. § 36.302(e)(1)(i). More particularly still, it requires hotel owners to "[i]dentify and describe accessible features in the hotels and guest rooms offered through [their] reservations service[s] in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs." Id. § 36.302(e)(1)(ii). Like the ADA itself, the Act's implementing regulations provide (or at least purport to provide) a private cause of action for anyone subjected to discrimination in violation of one of their provisions. Id. § 36.501(a).

Laufer alleges that the Value Inn's website and its listings on third-party sites violated ADA regulations. Specifically, she says, the sites didn't mention or provide the option of booking accessible rooms, nor did they provide information about rooms’ accessibility features (accessible showers, compliant furniture, etc.). Laufer visited these websites to test them for compliance with the regulations and to assess the hotel's accessibility features. She alleges that she has suffered and continues to suffer "frustration and humiliation as the result of the discriminatory conditions present" on the websites, and that the sites contribute to her "sense of isolation and segregation." Laufer insists that she intends to view the websites in the future, but she admits that she has no intention to visit the Value Inn or the area in which it's located.¹

Laufer filed a complaint seeking a declaratory judgment, injunctive relief, and attorneys’ fees. Arpan argued, among other things, that Laufer lacked Article III standing to sue. After limited discovery, Laufer moved for summary judgment. The district court denied summary judgment and instead dismissed the case for want of jurisdiction on the ground that Laufer lacked standing. Laufer, the court held, hadn't suffered a "concrete" injury because the information omitted from the websites "would be useless to her" given that she never intended to visit the Value Inn, and because she couldn't show any constitutionally cognizable stigmatic harm. The court further found that her injury wasn't sufficiently "particularized" because any harm that she experienced was "the same harm every other website visitor would suffer."

The only issue on appeal is whether the district court correctly concluded that Laufer suffered no concrete and particularized injury and therefore lacked standing to sue. Our precedents compel us to vacate and remand.²

II

A plaintiff has Article III standing if she can establish (1) an injury in fact (2) that is fairly traceable to the defendant's conduct and (3) that is redressable by a favorable decision. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "To establish an injury in fact" at step one, "the plaintiff must demonstrate that [s]he suffered ‘an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.’ " Sierra , 996 F.3d at 1113 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). A "concrete" injury must be "real, and not abstract," but can be either "tangible" or "intangible." Spokeo, Inc. v. Robins , 578 U.S. 330, 340, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (quotation marks omitted). A "particularized" injury is one that "affect[s] the plaintiff in a personal and individual way." Lujan , 504 U.S. at 560 n.1, 112 S.Ct. 2130.

The principal question before us is whether Laufer has suffered a concrete intangible injury of the sort that suffices for Article III. The Supreme Court has directed us to determine an intangible harm's concreteness as follows: We first assess whether the alleged injury bears a "close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts." TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2204, 210 L.Ed.2d 568 (2021) ; see also Spokeo , 578 U.S. at 341, 136 S.Ct. 1540 (similar, but looking to both "English [and] American courts"). Separately, "because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important." Spokeo , 578 U.S. at 341, 136 S.Ct. 1540 ; see also TransUnion , 141 S. Ct. at 2204–05. But regardless of Congress's judgment—regardless of whether an alleged injury results from the violation of a right that Congress has recognized and made individually enforceable through a private cause of action—a reviewing court must "independently decide whether a plaintiff has suffered a concrete harm under Article III" because Congress cannot "us[e] its lawmaking power to transform something that is not remotely harmful into something that is." TransUnion , 141 S. Ct. at 2205 (quotation marks omitted).

First things first: Laufer's alleged injury—her inability to access certain information on a hotel's website and her resulting emotional disquiet—bears no "close relationship" to any traditional common-law cause of action. To be sure, Laufer alleges "frustration and humiliation." But neither intentional nor negligent infliction of emotional distress is a sufficiently close analogue. No one contends that Laufer was subject to the kind of "extreme and outrageous" intentional or reckless conduct that intentional infliction entails. See Bartholomew v. AGL Res., Inc. , 361 F.3d 1333, 1339 (11th Cir. 2004). Nor was she subject to physical contact or within the zone of physical danger, as negligent infliction requires. See Chaparro v. Carnival Corp. , 693 F.3d 1333, 1337–38 (11th Cir. 2012).

Despite the absence of a close common-law comparator, we conclude that under existing precedent—both our own and the Supreme Court's—Laufer has alleged a concrete intangible injury. In Sierra , we held that a deaf plaintiff suffered a concrete "stigmatic" injury when he watched, but could not hear and thus understand, videos that a city posted on its official website and for which it refused to provide closed captioning. 996 F.3d at 1114. Relying on the Supreme Court's decision in Allen v. Wright , 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), we held that "[a]n individual who suffers an intangible injury from discrimination can...