Informational Injury, Standing, and the Missed Opportunity in Acheson Hotels v. Laufer (2023)
Acheson Hotels, LLC v. Deborah Laufer (2023), the first case decided in the Supreme Court’s 2023–2024 term, may seem uninteresting: the Court ruled unanimously for Petitioner on grounds of mootness after Respondent withdrew her claims. Respondent is a disabled woman suing hotels for noncompliance with the Americans with Disabilities Act of 1990 (“ADA”) despite never intending to visit the hotels herself [1]. Rather than resolving the split circuit regarding whether Laufer had Article III standing, the Court saved the issue for another day, should it ever arise again.
The question of standing for so-called “testers,” those who sue primarily to expose injustice or violation of the law rather than to receive compensation for harm done to themselves, is not new for the Court. A closely connected case, Havens Realty Corp. v. Coleman (1982), found that testers had standing to sue when provided with false information under the Fair Housing Act of 1968 (“FHA”). Clearly, testers may be champions for civil rights. Laufer portrays herself as one, claiming that “very few have ever complied with the ADA voluntarily” [2]. But it is unclear whether testers have or should have standing under particular circumstances and whether more recent cases have affected Havens Realty. However, distinctions between Havens Realty and Acheson provide insight into a decision like Justice Thomas’ that is consistent with Havens Realty and more recent cases and that affords Article III standing only to testers in cases where their work is truly beneficial.
Laufer’s argument for standing relies on the enforcement clause of the ADA and a relevant regulation. The enforcement clause provides remedies “to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter” [3]. Since by her own admission Laufer did not intend to stay at the accommodation, she relies on the Reservation Rule requiring lodging accommodations, among other things, to “[i]dentify and describe accessible features in the hotels and guest rooms offered through its reservations service” [4].
Laufer supports her claim with Supreme Court cases including Havens Realty and TransUnion LLC v. Ramirez (2021). In the former case, Coleman, the black tester, received false information about available housing while the white tester received truthful information. Coleman sued for violation of the FHA, and the Court found that she had standing [5]. To some, the situations in Havens Realty and Acheson may seem so similar that they see no substantive difference between them. Indeed, such was the reasoning of the First Circuit [6]. Nonetheless, both Petitioner and the First Circuit suggest that there is “tension between Havens Realty and modern standing cases like TransUnion” [7]. But there is no more than can be resolved. TransUnion held that “[o]nly plaintiffs concretely harmed by a defendant’s statutory violation have Article III standing to seek damages against that private defendant in federal court” [8]. Acheson notes how “TransUnion stated that when there were ‘no downstream consequences from failing to receive the required information,’ an ‘asserted informational injury that causes no adverse effects cannot satisfy Article III’” [9]. This newer case may seem to weaken Laufer’s case, but Laufer seizes upon its finding that “Courts must afford due respect to Congress’s decision to impose a statutory prohibition or obligation on a defendant, and to grant a plaintiff a cause of action to sue over the defendant’s violation of that statutory prohibition or obligation” [10]. Laufer contends there are indeed “adverse effects” of Acheson’s failure, noting that in 42 U.S.C. §12101 Congress identified as “real world harms [. . .] disabled persons’: preclusion from fully participating in all aspects of society; isolation; segregation; relegation to lesser services or opportunities; inferior status; lack of equality of opportunity and full participation; and that this includes areas of communication” [11]. Yet which of these or other “downstream consequences” Laufer suffered as a tester is uncertain.
Laufer’s case undoubtedly resembles Havens Realty, but the cases are not identical, and Laufer does not meet the requirements for Article III standing. Lujan v. Defenders of Wildlife (1992) identified three elements required for standing: an “injury in fact,” causal connection between the defendant’s actions and said injury, and a “likely” possibility “that the injury will be ‘redressed by a favorable decision’” [12]. Justice Thomas, who concurred in the judgment though he would have decided the case for lack of standing, refers to this case in his opinion [13]. Laufer, he argues, has not shown any injury done to her. Where there is no injury there lies no action. Further, Thomas notes a statutory difference between the FHA and the ADA. The former “explicitly prohibits ‘represent[ing] to any person because of race . . . that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact available,’” which Thomas argues creates a right to information [14]. The ADA has no such provision, and Thomas doubts whether a regulation could give Laufer the right to information [15]. In 2016, the Court noted that in Lujan it recognized the right of Congress to “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate at law” [16]. As a regulation, the Reservation Rule is not passed by Congress but written by an agency, hence it is unclear it could create such a “legally cognizable injury.” Regardless, Thomas notes that “Laufer asserts no violation of her own rights with respect to that information” and hence lacks standing [17].
Contrary to one of Acheson’s arguments, Havens Realty may coexist with newer cases such as TransUnion. Thomas identifies two elements Laufer must show for an “injury in fact” as required by Lujan: a statutory right to information and a violation of the right. The tester in Havens Realty had an express statutory right which was violated when the defendant misrepresented information to her. Yet, contrary to the First Circuit’s opinion, Laufer had no such right violated. As the English legal historian S. F. C. Milsom once wrote, “in any system of law ‘not doing is no trespass’ (meaning wrong or tort) unless there was a duty to act” [18]. Coleman was intentionally deceived because of her race in violation of the FHA. The injury was active, and there is no doubt that there should be a remedy. This is substantially different from Acheson’s failure to comply with a regulation in which Laufer had no interest, “because she disclaimed any intent to visit the hotel” [19]. Finding that Laufer does not have standing does not jeopardize Havens Realty.
Thomas writes that “Laufer casts herself in the role of a private attorney general” [20]. Similarly, the Center for Constitutional Responsibility asserts in its amicus curiae brief that such “tester plaintiffs seek to enforce federal law without any supervision from the executive branch” and “in effect, act as unsupervised ‘Officers of the United States’” [21]. Such power is not in the hands of private citizens. Further, while Congress may give a remedy, it cannot create an injury where there is none. Laufer has suffered no injury.
While testers may sometimes provide invaluable advancement of civil rights, this is not always the case. Acheson alleged that “Laufer’s lawsuits typically target small hotels and bed-and-breakfasts” [22]. More importantly, as Acheson also notes, “[a] five-minute phone call [. . .] could have answered all of Laufer’s accessibility questions” [23]. If a disabled person wished to stay at the property, it would be simple to make the phone call. Ideally, Acheson would have the information on its website, but Laufer’s work as a tester provides relatively little utility to others. By contrast, in Havens Realty, an individual seeking housing might not have the luxury of filing a lawsuit to obtain accurate information. In this case, the tester’s work proves much more beneficial to others. Far from legislating from the bench, such a decision nevertheless provides a reasonable standard for standing of testers who would sue for informational injury.
Though Justice Barrett, joined by six other justices, did not believe “Laufer abandoned her case in an effort to evade [the Court’s] review,” she recognizes Petitioner’s point that “the circuit split is very much alive” [24]. Besides its failure to resolve the circuit split, Acheson Hotels, LLC v. Deborah Laufer presented an opportunity to highlight a thread of consistency from Havens Realty to TransUnion despite the perceived tension. Perhaps the Court will do so another day.
Sources:
[1] See Pet. App. 13a
[2] Respondent’s Brief in Opposition, 7
[3] 42 U.S.C. §12188(a)(1), quoted in Respondent’s Brief in Opposition, 17
[4] 28 C.F.R. §36.302(e)(1)(ii)
[5] Havens Realty Corp. v. Coleman, 455 U.S. 363, 364 (1982)
[6] Pet. App. 18a-19a, see Petition for Writ of Certiorari, 14–15
[7] Petition for Writ of Certiorari, 26, see Pet. App. 18a
[8] TransUnion LLC v. Ramirez, 594 U.S. ___ (2021)
[9] Petition for Writ of Certiorari, 14, quoting Havens Realty Corp v. Coleman, Pet. App. 15a-16a (internal quotation marks omitted)
[10] 594 U.S. ___ (2021), quoted in Respondent’s Brief in Opposition, 12
[11] Respondent’s Brief in Opposition, 15
[12] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
[13] Acheson Hotels, LLC v. Laufer, 601 U.S. ___ (2023) (Thomas, J., concurring)
[14] 601 U.S. ___ (2023) (Thomas, J., concurring), quoting 42 U.S.C. §3604(d)
[15] Ibid.
[16] 504 U.S. 555, 578, quoted in Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)
[17] 601 U.S. ___ (2023) (Thomas, J., concurring)
[18] S. F. C. Milsom, “Not Doing is No Trespass,” The Cambridge Law Journal 12, no. 2 (April 1954): 108.
[19] 601 U.S. ___ (2023) (Thomas, J., concurring)
[20] Ibid.
[21] Brief of Amicus Curiae Center for Constitutional Responsibility in Support of Petitioner, 12–13
[22] Petition for Writ of Certiorari, 4
[23] Ibid.
[24] 601 U.S. ___ (2023)