{"id":1465,"date":"2023-12-14T00:00:00","date_gmt":"2023-12-14T04:00:00","guid":{"rendered":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/?p=1465"},"modified":"2024-10-31T16:39:49","modified_gmt":"2024-10-31T20:39:49","slug":"lots-to-talk-about-in-supreme-courts-laufer-non-decision","status":"publish","type":"post","link":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/2023\/12\/14\/lots-to-talk-about-in-supreme-courts-laufer-non-decision\/","title":{"rendered":"Lots to Talk About in Supreme Court’s Laufer Non-Decision"},"content":{"rendered":"\n

Last week the United States Supreme Court issued the first decision in an argued case for the 2023 Term, Acheson Hotels, LLC v. Laufer<\/em> (docket listing<\/a> | argument audio<\/a> | argument transcript<\/a> | opinions<\/a>). The substantive merits of the case were never before the Court. The Court agreed to hear the case to decide a preliminary jurisdictional question (standing1<\/a><\/sup>), but instead vacated the decision below and ordered the case dismissed on another procedural ground, mootness.<\/p>\n\n\n\n

Under regulations implementing the Americans with Disabilities Act of 1990 (ADA), P.L. 101-336, 104 Stat. 327<\/a>, 42 U. S. C. \u00a712101 et seq<\/em>.<\/a>, hotels are required to post information on their websites regarding whether accessible accommodations are provided. The regulations have been held to create a private right of action under which a plaintiff can obtain an injunction requiring a hotel to comply with the regulation and obtain an award of attorney fees.<\/p>\n\n\n\n

The plaintiff in the case, Deborah Laufer, a self-described “tester,” scours the internet to find noncompliant hotels and then sues them, over 600 to date. Laufer has no intent to stay at any of the hotels; the most charitable view of her activities is that she is a true believer seeking to enforce the mandate of the ADA.2<\/a><\/sup> The defendant in this case did not settle and won at the district court level on the basis that Laufer lacked standing to bring the case as her lack of intention to stay at the hotel regardless of its disability accommodations (or lack thereof) meant that she did not suffer a concrete injury and lacked standing. The court of appeals, however, reversed. The Supreme Court granted certiorari<\/em> to resolve the split between circuits.3<\/a><\/sup><\/p>\n\n\n\n

However, between the grant of certiorari <\/em>and argument in the case, Laufer dismissed the underlying complaint with prejudice and has stated that she will file no more such cases. Her stated reason for doing so was a disciplinary action taken against an attorney who represented her in some of the cases.4<\/a><\/sup> Her attorney then filed a “suggestion of mootness,” urging the Supreme Court to dismiss the appeal (and incidentally keep the First Circuit’s decision effective as precedent.)<\/p>\n\n\n\n

The Supreme Court did not immediately dismiss the appeal but said it would consider the issue at oral argument. Ultimately both standing and mootness implicate whether federal courts have subject matter jurisdiction, and the Court can decide the questions in either order.<\/p>\n\n\n\n

Ultimately, seven justices voted to dismiss the appeal on mootness grounds. Justice Barrett’s opinion for the Court indicated that the Court was not convinced that Laufer’s actions were taken to evade Supreme Court review but warned that the Court might exercise its discretion differently in a future case. It was not all tears for the defendant, however. The Court also vacated the judgment of the Court of appeals (called Munsingwear<\/em> vacatur), removing the binding (in the First Circuit) effect of its decision.<\/p>\n\n\n\n

Two of the justices did not join the opinion but concurred in the judgment. Justice Thomas would have decided the standing question first and would have found that Laufer lacked it. Justice Jackson, as she has in prior opinions, questioned the use of Munsingwear<\/em> vacatur.<\/p>\n\n\n\n

The Laufer <\/em>decision is of course instructive on the relationship between mootness and standing, and Justice Jackson’s discussion of Munsingwear<\/em> vacatur is thoughtful.<\/p>\n\n\n\n

Many commentators heaved a sigh of relief when the Court dodged the standing question and I’m sure that they will tell you that the Department of Justice just does not have the resources its needs to enforce the ADA as it should (or perhaps they will complain that the DOJ is mistakenly applying its resources to other, less important, priorities). But I am concerned about private parties using a regulation to assert a private right of action for the purpose of private enforcement of the law. It is a form of vigilante justice that is particularly problematic where the plaintiff personally suffers no injury. It is just another example of the government imposing on private parties the right or obligation to do its job, just like when business owners are sued because they did not supplement the police to prevent a criminal act or a university is supposed to act like a court to determine if one student sexually harassed or assaulted another.5<\/a><\/sup><\/p>\n\n\n\n

The opinions are not all that long and are all well worth reading.<\/p>\n\n\n\n

Jay Bohn<\/p>\n\n\n\n

December 14, 2023<\/p>\n\n\n\n

<\/p>\n\n\n

  1. I discussed the concept of “standing” in a bit of detail here<\/a>. \u21a9\ufe0e<\/a><\/li>
  2. Another motive could be money. Her attorneys do not give the hotels pre-litigation warning and a chance to come into compliance. The often file the lawsuit and then offer to settle, demanding a $10,000 attorney fee. Some of this money seems to have found its way to Laufer’s family. Slip op. at 2. \u21a9\ufe0e<\/a><\/li>
  3. For the most part federal appeals courts have geographic jurisdiction over decisions made by district courts in their respective circuits. Because the Supreme Court is the only tribunal that can review court of appeals decisions, a disagreement between circuits on a principle of law results in federal law being different in different parts of the country. As the Court’s opinion states: “Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it.” \u21a9\ufe0e<\/a><\/li>
  4. It could of course be that she was trying to leave the filed open for other testers to continue to file suits, at least in hospitable circuits. \u21a9\ufe0e<\/a><\/li>
  5. That is a whole other topic, especially when the government mandates that the university not afford the accused party rights to which a criminal or even civil defendant would be entitled. \u21a9\ufe0e<\/a><\/li><\/ol>","protected":false},"excerpt":{"rendered":"

    Last week the United States Supreme Court issued the first decision in an argued case for the 2023 Term, Acheson Hotels, LLC v. Laufer (docket listing | argument audio | argument transcript | opinions). The substantive merits of the case were never before the Court. The Court agreed to hear the case to decide a … Continue reading “Lots to Talk About in Supreme Court’s Laufer Non-Decision”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":"[{\"content\":\"I discussed the concept of \\\"standing\\\" in a bit of detail here<\/a>.\",\"id\":\"fc0e58ea-93cf-414a-bcd1-5ccb5592c16e\"},{\"content\":\"Another motive could be money. Her attorneys do not give the hotels pre-litigation warning and a chance to come into compliance. The often file the lawsuit and then offer to settle, demanding a $10,000 attorney fee. Some of this money seems to have found its way to Laufer's family. Slip op. at 2.\",\"id\":\"3212aa43-2e10-48d2-8d92-c045751752bb\"},{\"content\":\"For the most part federal appeals courts have geographic jurisdiction over decisions made by district courts in their respective circuits. Because the Supreme Court is the only tribunal that can review court of appeals decisions, a disagreement between circuits on a principle of law results in federal law being different in different parts of the country. As the Court's opinion states: \\\"Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it.\\\"\",\"id\":\"9a0d5220-996a-4fff-8b12-17c62196c9af\"},{\"content\":\"It could of course be that she was trying to leave the filed open for other testers to continue to file suits, at least in hospitable circuits.\",\"id\":\"54f678c8-d48d-42f1-873d-a183fdc09fb9\"},{\"content\":\"That is a whole other topic, especially when the government mandates that the university not afford the accused party rights to which a criminal or even civil defendant would be entitled.\",\"id\":\"e5cb992b-3fe9-46c9-83b8-5f9aa02dffc0\"}]"},"categories":[3],"tags":[],"class_list":["post-1465","post","type-post","status-publish","format-standard","hentry","category-judicial-decisions"],"_links":{"self":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/1465","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/comments?post=1465"}],"version-history":[{"count":16,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/1465\/revisions"}],"predecessor-version":[{"id":1697,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/1465\/revisions\/1697"}],"wp:attachment":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/media?parent=1465"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/categories?post=1465"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/tags?post=1465"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}