Metropolitan News-Enterprise


Monday, January 10, 2011


Page 1


En Banc Court Tosses ADA Action Against Pier 1 Imports


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday threw out a disabled man’s lawsuit against Pier 1 Imports, ruling that he lacked standing to sue the retailer over alleged architectural features which denied him full access to its Vacaville store.

An en banc panel clarified that a plaintiff asserting violations of the Americans with Disabilities Act can assert a cause of action based on accessibility barriers he did not personally encounter and which would not deter him from returning to that store, but explained that Byron Chapman’s claims were not cognizable because he failed to assert

how the alleged violations impeded his use and enjoyment of the facility.

All 11 judges agreed that Chapman lacked standing, although only two disagreed with the majority as to the standard to be applied.

Chapman, who is unable to walk unassisted and requires the use of a motorized wheelchair, filed suit against Pier 1 in 2004 seeking removal of various architectural features, as well as monetary damages.

His complaint included a list of alleged accessibility barriers which he claimed to have personally encountered or be aware of within the store. Chapman also submitted a report compiled by his expert, which identified several purported violations of the ADA and building code not included in Chapman’s complaint.

Both parties filed motions for summary judgment, and U.S. District Judge Lawrence K. Karlton of the Eastern District of California granted judgment in favor of Chapman on seven barriers listed only in the expert report.

A three-judge panel of the Ninth Circuit reversed, concluding that Chapman only had standing to sue for injunctive relief as to the barriers he claimed to have encountered. The panel said he could not demonstrate a sufficient likelihood of future harm to establish

standing to sue for an injunction as to the other alleged ADA violations because he had admitted that he was not deterred from patronizing the store despite his purportedly limited use of it.

This decision was vacated after a majority of the court’s non-recused judges voted to rehear the appeal.

Writing for the en banc panel, Judge Kim McLane Wardlaw explained that “an intent to return to a noncompliant accommodation is but one way for an injured plaintiff to establish Article III standing to pursue injunctive relief.”

She reasoned that a plaintiff can suffer from a cognizable “ongoing injury” caused by the lack of access to a noncompliant accommodation if that person is deterred from returning to that facility because of those barriers or from an “imminent injury” caused by the threat of discrimination posed by a noncompliant accommodation the person wishes to visit in the future.

Wardlaw further opined that the ADA does not require a disabled individual personally encounter each architectural barrier as a predicate to seeking its removal since it dictates that “injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.”

The jurist construed this language as meaning any plaintiff who has Article III standing as a result of at least one barrier at a place of public accommodation may challenge all the barriers that are related to his specific disability in one action, even if he has not personally encountered all of them, reaffirming the Ninth Circuit’s 2008 decision in Doran v. 7-Eleven, Inc., 524 F.3d 1034.

Chapman, however, failed to assert a cognizable injury-in-fact, Wardlaw said, because he did not connect the alleged ADA violations to his disability by demonstrating how these barriers denied him full and equal access to the store.

A list of alleged violations “does nothing more than ‘perform a wholesale audit of the defendant’s premises,’ ” and “cannot substitute for the factual allegations required in the complaint to satisfy Article III’s requirement of an injury-in-fact,” she concluded.

Wardlaw was joined by Chief Judge Alex Kozinski, Judges Mary M. Schroeder, Barry G. Silverman, Richard A. Paez, Marsha S. Berzon, Richard R. Clifton and Milan D. Smith Jr., and Senior Judge Andrew J. Kleinfeld.

Judge N. Randy Smith, joined by Judge Johnnie B. Rawlinson, wrote separately, contending the analysis employed by Wardlaw “expands standing for ADA plaintiffs beyond the constitutional confines of Article III.”

Smith argued that allowing “a simple encounter with a barrier” should not be enough to confer standing. “Rather than merely pointing to a violation…a plaintiff must also point to some type of personalized injury, whether the injury is objective (physical or economic)1 or subjective (emotional or aesthetic),” Smith said.

He also suggested that “there can be no standing to challenge unencountered barriers” if a plaintiff is not deterred from returning to a noncompliant facility because such a plaintiff has not been adversely affected by the barriers he did encounter.

The case is Chapman v. Pier 1 Imports (U.S.) Inc., 07-16326.


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