Bad Eleventh Circuit ADA Title III Decision

Earlier this week, the Eleventh Circuit issued an unpublished opinion in Access for America, Inc. v. Associated Out-Door Clubs, Inc.. The plaintiffs, an organization and an individual with a disability, brought the case under ADA Title III to challenge various barriers to access at the defendant's greyhound race track. In its opinion, the Eleventh Circuit affirmed the district court's dismissal of the plaintiff's case on standing grounds. The Eleventh Circuit concluded that the individual plaintiff "lacked the requisite concrete and specific intent to return to the Track because he could not demonstrate that there was any reasonable chance of his revisiting the Track, other than 'someday,'" and that he therefore lacked standing under Lujan v. Defenders of Wildlife. Because the organizational plaintiff's standing was based on the individual plaintiff's standing, the two fell together.

This is a bad decision, one that, as Judge Barkett pointed out in dissent, went well beyond Lujan. Judge Barkett explained that there was nothing speculative about whether the individual plaintiff would return to the track; the only question was when:

Despite structural barriers allegedly in violation of the ADA, Wilder, who has muscular dystrophy and is confined to a wheelchair, nonetheless professes a desire to revisit Associated’s Tampa Greyhound Track. Wilder’s unrebutted testimony reflected that he traveled to the Track six or eight times per year for the last three years. Because these trips are usually “spontaneous,” “there [was] no set date” for his next visit when this case was before the district court. Even so, his interrogatory answers signaled an intent to visit the track over Christmas vacation, and in March, May, June, and July of 2005. Dis. Ct. DK. 54 interr. answers p. 4. Wilder testified that possible visits were also being contemplated for Father’s Day and Thanksgiving. Dis. Ct. DK. 39, T. 167 ¶¶3-10).

Even if Wilder had not expressed an intention to visit the track on Father’s Day or next Thanksgiving, there can be no question that he gave adequate “specification of when the ‘some day’ will be.” Id. Wilder’s professed intention to return to the Track in certain months and during certain vacations is clearly adequate to confer standing if, as the language above suggests, merely stating when “some day” might be could have conferred standing on the plaintiffs in Lujan.

Whereas the Lujan plaintiffs were one-time visitors to far-flung places, Wilder has visited the Track between 18 and 24 times in the past three years. Given this track record, so to speak, we cannot fathom how or why Wilder has failed to “allege[] facts giving rise to an inference that he will suffer future disability discrimination by the defendant.” Schotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2004). In the absence of a change in circumstance material to the plaintiff’s future attendance at a particular facility, such recent and consistent use of the facility, wholly uncontested by defendants as a factual matter, leaves practically no reason why Wilder should have had to provide a “set date” and “concrete plans” for his return. Wilder’s recent and frequent use of the Track makes his intent to return credible on that basis alone. As the Supreme Court has said, evidence of past wrongs bears strongly on “whether there is a real and immediate threat of repeated injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).

As Judge Barkett went on to argue, the majority's opinion eviscerates the ADA's public accommodations provisions. The whole point of Title III of the ADA is that people with disabilities should have the same choice of retail goods and services providers as do everyone else. And a huge number of the places of public accommodation to which Title III applies are places that people choose to attend spontaneously. (Think gas stations, restaurants, amusement parks, and on down the line.) I can't tell you when I'll go to the coffee shop in my neighborhood next, but I've gone there 20 times in the two years I've lived in my house, and I sure mean to go there again sometime. Does the fact that I can't tell you exactly when mean that I couldn't sue to challenge any barriers to access I found there? That would be an absurd result, but it's what the court's opinion seems to require. Judge Barkett again:

Especially in the disability context, a “specific-date/set-plans” standard would produce patently absurd results, and would almost certainly place plaintiffs in a Catch-22 so far as their credibility is concerned. To have standing under the ADA, is a wheelchair-bound individual who consistently but unpredictably frequents a particular Burger King required to predict the very day on which he will next crave a Whopper?

I don't know how often the Eleventh Circuit takes unpublished opinions en banc (I'd assume almost never), but this case cries out for that treatment.