Chapman v. Pier 1 Imports (U.S.) Inc.

Opinion by Judge WARDLAW; Concurrence by Judge N.R. SMITH.

OPINION

Byron Chapman is unable to walk unassisted, and he requires the use of a motorized wheelchair when traveling in public. In July 2004, Chapman sued a Pier 1 Imports store (“Pier One” or “Store”) in Vacaville, California, alleging that some of the Store’s architectural features denied him full and equal enjoyment of the premises in violation of the Americans with Disabilities Act (“ADA”). Chapman requested an injunction requiring the Store to remove the barriers he personally encountered during his visits to the Store that deprived him of full and equal enjoyment because of his wheelchair confinement, as well as barriers that he did not personally encounter but that might impede his access during future visits due to his disability. Chapman also requested monetary damages pursuant to provisions of California law. During discovery, Chapman testified that he was not deterred by the alleged ADA violations; rather, Chapman freely acknowledged that he actually intends to return to the Store, which is located near his home and offers products he finds desirable.

Chapman’s complaint provided a list of the architectural barriers existing at the Store, “to the extent known” to him, some of which he alleged that he had personally encountered.1 More than one year after the complaint was filed, and two months before the close of discovery, Chapman submitted an additional report compiled by his expert, Joe Card. The Card Report identified thirty alleged ADA and CBC violations at the Store, some of which were listed in the complaint, others of which *944were new. The parties cross-moved for summary judgment. Chapman’s motion papers sought judgment as to only eleven of the alleged barriers, some of which had been listed in his complaint and some of which were identified only in the Card Report. The Store moved for summary judgment on the grounds that Chapman lacks standing and that the asserted barriers were not barriers as a matter of law or had been remedied.

The district court granted Pier One’s motion as to numerous challenged barriers, concluding either that Chapman had failed to cite any applicable ADA regulation or that the barrier Chapman identified no longer existed. The court considered each of Chapman’s eleven claims, including some that were raised only in the Card Report, finding that Chapman disclosed the violations in sufficient time to permit Pier One to address them in the context of its summary judgment motion. The court granted summary judgment to Chapman as to seven of the barriers listed solely in the Card Report. The parties later jointly stipulated to entry of final judgment, subject to Pier One’s reservation of the right to appeal the grant of summary judgment to Chapman and the denial of its motion to strike the Card Report.

Pier One timely appealed, challenging, among other things, the district court’s conclusion that Chapman had standing to seek an injunction as to barriers he did not personally encounter. A three-judge panel of our court agreed with Pier One, concluding that Chapman lacked Article III standing as to barriers he had not personally encountered, because they did not deter him from returning to the Store. See Chapman v. Pier 1 Imports (U.S.), Inc., 571 F.3d 853 (9th Cir.2009) (withdrawn). We vacated the panel’s decision after a majority of our court’s non-recused active judges voted to rehear the appeal en banc to examine the Article III standing doctrine in the context of actions for injunctive relief under the ADA.

We now clarify that when an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for injunctive relief as to that barrier and other barriers related to his disability, even if he is not deterred from returning to the public accommodation at issue. First, we hold that an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility. Second, we hold that an ADA plaintiff who establishes standing as to encountered barriers may also sue for injunctive relief as to unencountered barriers related to his disability. Here, however, Chapman has failed to allege and prove the required elements of Article III standing to support his claim for injunctive relief under the ADA. Specifically, he has not alleged or proven that he personally suffered discrimination as defined by the ADA as to encountered barriers on account of his disability. We therefore vacate the district court’s grant of summary judgment, and remand with instructions to dismiss Chapman’s ADA claim for lack of jurisdiction and for further proceedings consistent with this opinion.

I.

The ADA was enacted “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Its passage was premised on Congress’s finding that discrimination against the disabled is “most often the product, not of invidious animus, but rather of thoughtlessness and indiffer*945ence,” of “benign neglect,” and of “apathetic attitudes rather than affirmative animus.”2 Alexander v. Choate, 469 U.S. 287, 295-96, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). The concept of “discrimination” under the ADA does not extend only to obviously exclusionary conduct— such as a sign stating that persons with disabilities are unwelcome or an obstacle course leading to a store’s entrance. Rather, the ADA proscribes more subtle forms of discrimination — such as difficult-to-navigate restrooms and hard-to-open doors — that interfere with disabled individuals’ “full and equal enjoyment” of places of public accommodation. 42 U.S.C. § 12182(a); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001); Alexander, 469 U.S. at 295, 105 S.Ct. 712 (noting Congress’s conclusion that “we can no longer tolerate the invisibility of the handicapped in America” (quoting 118 Cong. Rec. 525-26 (1972))).

As defined by the ADA, unlawful “discrimination” occurs when features of an accommodation

subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.

42 U.S.C. § 12182(b)(l)(A)(i). In the context of existing facilities, discrimination includes “a failure to remove architectural barriers ... where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). In the case of newly constructed facilities, compliance with the ADA’s antidiscrimination mandate requires that facilities be “readily accessible to and usable by individuals with disabilities.” Id. § 12183(a)(1).

Whether a facility is “readily accessible” is defined, in part, by the ADA Accessibility Guidelines (“ADAAG”). See 28 C.F.R. § 36.406(a); 28 C.F.R. pt. 36, app. A; Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1024-25 (9th Cir.2008) (describing the ADA’s regulatory framework), cert. denied, — U.S. -, 129 S.Ct. 1349, 173 L.Ed.2d 648 (2009). Promulgated by the Attorney General to “carry out the provisions” of the ADA, 42 U.S.C. § 12186(b), these guidelines “lay out the technical structural requirements of places of public accommodation.” Fortyune v. Am. MultiCinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir.2004); see also Indep. Living Res. v. Or. Arena Corp., 982 F.Supp. 698, 714 (D.Or.1997) (“The regulations establish a national standard for minimum levels of accessibility in all new facilities.”). The ADAAG provides the objective contours of the standard that architectural features must not impede disabled individuals’ full and equal enjoyment of accommodations. See Pascuiti v. N.Y. Yankees, 87 F.Supp.2d 221, 225 (S.D.N.Y.1999) (quoting a letter in which the Department of Justice stated that it “considered] any element in a facility that does not meet or exceed the requirements set forth in the [ADAAG] to be a barrier to access”). We have held that “obedience to the spirit of the ADA” does not excuse noncompliance with the ADAAG’s requirements. See Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir.2001). The ADAAG’s requirements are as precise as they are thorough, *946and the difference between compliance and noncompliance with the standard of full and equal enjoyment established by the ADA is often a matter of inches. E.g., ADAAG § 4.16.4 (requiring grab bar behind water closets to be at least thirty-six inches long); id. § 4.19.6 (“Mirrors shall be mounted with the bottom edge of the reflecting surface no higher than 40 in (1015 mm) above the finish floor....”).

Though its purpose is “sweeping,” PGA Tour, 532 U.S. at 675, 121 S.Ct. 1879, and its mandate “comprehensive,” 42 U.S.C. § 12101(b)(1), the ADA’s reach is not unlimited. Rather, as with other civil rights statutes, to invoke the jurisdiction of the federal courts, a disabled individual claiming discrimination must satisfy the case or controversy requirement of Article III by demonstrating his standing to sue at each stage of the litigation. See U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Fortyune, 364 F.3d at 1081 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). As the Supreme Court has stated, “It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirements imposed by Article III of the Constitution by alleging an actual case or controversy.” Lyons, 461 U.S. at 101, 103 S.Ct. 1660; see also D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir.2008) (“A party invoking federal jurisdiction has the burden of establishing that it has satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution; standing is a ‘core component’ of that requirement.” (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130)). Given these principles, we are also mindful that the “Supreme Court has instructed us to take a broad view of constitutional standing in civil rights cases, especially where, as under the ADA, private enforcement suits ‘are the primary method of obtaining compliance with the Act.’ ” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir.2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)).

II.

Under the oft-repeated standing formulation, Chapman must demonstrate that he has suffered an injury-in-fact, that the injury is traceable to the Store’s actions, and that the injury can be redressed by a favorable decision. See Fortyune, 364 F.3d at 1081. In addition, to establish standing to pursue injunctive relief, which is the only relief available to private plaintiffs under the ADA,3 he must demonstrate a “real and immediate threat of repeated injury” in the future. Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). As the three-judge panel observed, the causation and redressability elements of standing are not at issue in this appeal. Chapman, 571 F.3d at 857. Therefore, our standing inquiry focuses on the legal standards governing whether Chapman has suffered an injury-in-fact and whether he has demonstrated a likelihood of future injury sufficient to support injunctive relief. The original panel concluded that Chapman did not suffer an injury-in-fact as to unencountered accessibility barriers because the barriers he did encounter did not deter him from returning to the Store. Id. at 854. This conclusion was a misapplication *947of the deterrent effect doctrine and reflected a misapprehension of its relationship to fundamental standing principles.

A.

The existence of federal standing “often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Accordingly, our standing analysis must focus on the nature and source of Chapman’s claim — discrimination as defined by the ADA. Under the ADA, when a disabled person encounters an accessibility barrier violating its provisions, it is not necessary for standing purposes that the barrier completely preclude the plaintiff from entering or from using a facility in any way. See Doran, 524 F.3d at 1041 n. 4 (stating that the ADA “does not limit its antidiscrimination mandate to barriers that completely prohibit access”). Rather, the barrier need only interfere with the plaintiffs “full and equal enjoyment” of the facility. 42 U.S.C. § 12182(a). As we stated in Doran,

Once a disabled individual has encountered or become aware of alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts, and so he possesses standing under Article III....

Doran, 524 F.3d at 1042 n. 5.

Of course, a “barrier” will only amount to such interference if it affects the plaintiffs full and equal enjoyment of the facility on account of his particular disability. Because the ADAAG establishes the technical standards required for “full and equal enjoyment,” if a barrier violating these standards relates to a plaintiffs disability, it will impair the plaintiffs full and equal access, which constitutes “discrimination” under the ADA. That discrimination satisfies the “injury-in-fact” element of Lujan. As we have held, once a disabled plaintiff has encountered a barrier violating the ADA, “that plaintiff will have a ‘personal stake in the outcome of the controversy’ so long as his or her suit is limited to barriers related to that person’s particular disability.”4 Id. at 1044.

Following this principle, the original three-judge panel recognized that Chapman’s initial encounter with accessibility barriers at the Store constituted an injury-*948in-fact.5 6 The now withdrawn panel opinion stated, “It is clear that Chapman had standing to sue Pier 1 Imports for not complying with the ADA with respect to the ... barriers he claimed to have encountered.” Chapman, 571 F.3d at 857. Although encounters with the noncompliant barriers related to one’s disability are sufficient to demonstrate an injury-in-fact for standing purposes, a plaintiff seeking injunctive relief must additionally demonstrate “a sufficient likelihood that he will again be wronged in a similar way.” Lyons, 461 U.S. at 111, 103 S.Ct. 1660. That is, he must establish a “real and immediate threat of repeated injury.” Id. at 102, 103 S.Ct. 1660 (quoting O’Shea, 414 U.S. at 496, 94 S.Ct. 669). For instance, in Fortyune, a quadriplegic plaintiff sued to enjoin a movie theater’s ongoing seating policy that failed to ensure that wheelchair-bound patrons could sit next to their companions or aides during sold-out shows. Fortyune, 364 F.3d at 1078-79.

Fortyune required both a wheelchair and an aide to attend movies at the theater. Thus, to have full and equal access to the movie theater he needed to have available a “companion seat” for his aide (in his case, his wife) next to which he could situate his wheelchair. He suffered an injury-in-fact when he and his wife attempted to see an AMC movie, but were prevented from doing so, because the companion seats were occupied by nondisabled patrons whom the manager refused to move on the basis of a company-wide policy governing the use of wheelchair companion seats at sold-out screenings. We noted that, while “past wrongs do not in themselves amount to [a] real and immediate threat of injury necessary to make out a case or controversy, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.” Id. at 1081 (internal quotation marks and citation omitted) (alteration in original). Because Fortyune attended three or four movies per week with a companion, id. at 1079, and the theater’s discriminatory seating policy was ongoing, we concluded that Fortyune established “a ‘real and immediate threat’ that the injury will be repeated” sufficient to permit him to pursue injunctive relief. Id. at 1081; see also id. at 1082 (“[T]he possibility of his injury recurring cannot be said to be so remote as to preclude standing.”); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir.2002) (“[A] plaintiff who is threatened with harm in the future because of existing ... noncompliance with the ADA suffers ‘imminent injury.’ ”).

Other circuits also recognize that an ADA plaintiff demonstrates a sufficient likelihood of future harm to establish standing to sue for an injunction when he intends to return to a noncompliant place of public accommodation where he will likely suffer repeated injury. In Disabled Americans for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60 (1st Cir.2005), a wheelchair-bound individual *949sued the operator of a cruise ship, alleging that he was subjected to discrimination and was likely to suffer discrimination in the future because accessibility barriers on the defendant’s vessel denied him full and equal enjoyment of its goods, services, and other privileges. Id. at 62-63. The First Circuit concluded that the plaintiff had standing to pursue injunctive relief, noting that the plaintiff alleged an intent to return to the vessel notwithstanding its noncompliance with the ADA, and that unless the barriers were removed, his ability to use the accommodations would be compromised and his safety would be endangered. Id. at 64-65.

Similarly, in Camarillo v. Carrols Corp., 518 F.3d 153 (2d Cir.2008), a blind woman sued the owner of several fast-food restaurants, alleging that she was subjected to unlawful discrimination under the ADA when the restaurants failed to communicate their menu items to her effectively. Id. at 154, 156. The Second Circuit held that Camarillo had standing to sue for injunctive relief because “(1) she has alleged past injury under the ADA (namely, defendants’ discriminatory failure to ensure effective communication of their menu items); (2) it is reasonable to infer from her complaint that this discriminatory treatment will continue; and (3) it is also reasonable to infer, based on the past frequency of her visits and the proximity of defendants’ restaurants to her home, that Camarillo intends to return to these restaurants in the future.” Id. at 158.

These opinions reflect first principles: It is well settled that a plaintiff need not “await the consummation of threatened injury to obtain prospective relief.” Farmer v. Brennan, 511 U.S. 825, 845, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923)); see also Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“It is the role of courts to provide relief to claimants ... who have suffered, or will imminently suffer, actual harm.... ”). Rather than contending with discriminatory barriers due to his related disability when he returns to a public accommodation, a plaintiff may seek a judicial order requiring their removal. Article III, however, requires a sufficient showing of likely injury in the future related to the plaintiffs disability to ensure that injunctive relief will vindicate the rights of the particular plaintiff rather than the rights of third parties.6

B.

Demonstrating 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. A disabled individual also suffers a cognizable injury if he is deterred from visiting a noncompliant public accommodation because he has encountered barriers related to his disability there.

We first recognized that the “deterrent effect doctrine” may confer standing in Pickem. There, the plaintiff had encountered accessibility barriers on past visits to the Paradise market, which deterred him from returning to the market even though he preferred to shop there. Pickern, 293 *950F.3d at 1135. Because the plaintiffs initial encounter with the barriers had occurred outside the relevant statute of limitations, the injury inflicted by that encounter did not confer standing to sue. We nevertheless concluded that the plaintiff had Aticle III standing because “a disabled individual who is currently deterred from patronizing a public accommodation due to a defendant’s failure to comply with the ADA has suffered ‘actual injury’ ” for standing purposes. Id. at 1138. Athough the plaintiff was unlikely to return to the market while the barriers remained, given that he “would shop at the Paradise market if it were accessible,” the threat of injury was sufficiently “imminent” to permit him to sue for injunctive relief. Id.

We reaffirmed the deterrent effect doctrine in Doran. In Doran, the plaintiff

alleged that he had visited the 7-Eleven store on ten to twenty prior occasions, that he is currently deterred from visiting the store because of its accessibility barriers, that the store is conveniently located near his favorite fast food restaurant in Aaheim, and that he plan[ned] to visit Aaheim at least once a year on his annual trips to Disneyland.

Doran, 524 F.3d at 1040. Because the plaintiff was deterred from visiting the store, we concluded that there was “an actual or imminent threat that, during his planned future visits to Aaheim, [he] will suffer harm as a result of the alleged barriers,” and we found standing to pursue injunctive relief. Id. at 1041.

Thus, an ADA plaintiff can show a likelihood of future injury when he intends to return to a noncompliant accommodation and is therefore likely to reencounter a discriminatory architectural barrier. Aternatively, a plaintiff can demonstrate sufficient injury to pursue injunctive relief when discriminatory architectural barriers deter him from returning to a noncompliant accommodation. Just as a disabled individual who intends to return to a non-compliant facility suffers an imminent injury from the facility’s “existing or imminently threatened noncompliance with the ADA,” a plaintiff who is deterred from patronizing a store suffers the ongoing “actual injury” of lack of access to the store. Pickern, 293 F.3d at 1138. That is, an ADA plaintiff suffers an injury-in-fact either because discriminatory architectural barriers deter him from returning to a facility or because they “otherwise interfere with his access to” the facility. Do-ran, 524 F.3d at 1042 n. 5. Thus, we have Aticle III jurisdiction to entertain requests for injunctive relief both to halt the deterrent effect of a noncompliant accommodation and to prevent imminent “discrimination,” as defined by the ADA, against a disabled individual who plans to visit a noncompliant accommodation in the future.

III.

Once a plaintiff establishes Aticle III standing, there remains the question of the scope of his standing. See Doran, 524 F.3d at 1042. A we have explained, “This question requires us to consider the precise nature and scope of the injury that [Chapman] and similarly situated plaintiffs have suffered when they encounter ... architectural barriers violative of the ADA.” Id. Because the parties dispute the legal rule governing this question, we address it here.

We have held that “[a]n ADA plaintiff who has Aticle III standing as a result of at least one barrier at a place of public accommodation may, in one suit, permissibly challenge all barriers in that public accommodation that are related to *951his or her specific disability.” Id. at 1047.7 Under Doran, Chapman need not have personally encountered all the barriers that impede his access to the Store in order to seek an injunction to remove those barriers. See Pickern, 293 F.3d at 1138. If Chapman has standing to pursue injunctive relief as to some of the barriers that he actually encountered, then he has standing to seek an order requiring the removal of all barriers at the Store that are related to his disability and that he is likely to encounter on future visits. Doran, 524 F.3d at 1047.

The rule in Doran is a direct application of the statute. The ADA’s remedial scheme is not limited to orders for the. removal of encountered barriers, but instead dictates that “injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12188(a)(2); see also Doran, 524 F.3d at 1043. The ability to pursue this relief extends to “any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination.” 42 U.S.C. § 12188(a)(1). The statute provides that “[njothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.” Id. Thus, the ADA specifically does not require that the disabled individual personally encounter each architectural barrier as a predicate to seeking its removal.

We explained in Doran that our holding was “fully consistent with the Supreme Court’s Article III standing discourse.” Doran, 524 F.3d at 1044. Indeed, our analysis simply applied the standing framework established in Lujan. In Lujan, there was no dispute that the plaintiffs had not suffered a past injury from the administrative rule they challenged. The Court concluded the plaintiffs lacked Article III standing only because the threat of future harm was too remote to constitute an imminent injury. Lujan, 504 U.S. at 564, 112 S.Ct. 2130. Had the prospect of future injury been more concrete, the absence of a past injury resulting from the rule’s application would not have precluded Article III standing. Id. at 564 n. 2, 112 S.Ct. 2130; see also Pickern, 293 F.3d at 1138 (“[A] plaintiff who is threatened with harm in the future because of existing or imminently threatened noncompliance with the ADA suffers ‘imminent injury.’ ”).

An ADA challenge to unencountered barriers does not implicate the prohibition on generalized grievances, or violate prudential standing principles, by raising the rights of third parties rather than the rights of the individual plaintiff. We stated in Doran that “[e]ven if a disabled plaintiff did not know about certain barriers when the plaintiff first filed suit, that plaintiff will have a ‘personal stake in the outcome of the controversy’ so long as his or her suit is limited to barriers related to that person’s particular disability.” Do-ran, 524 F.3d at 1044. We recognized that “it is ultimately misleading to conceptualize each separate architectural barrier in*952hibiting a disabled person’s access to a public accommodation as a separate injury that must satisfy the requirements of Article III.” Id. at 1042. Rather, the injury suffered by disabled plaintiffs is the “discrimination” under the ADA that results from an accommodation’s “failure to remove architectural barriers.” Id. at 1043 (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)). In Doran, this injury was suffered “the first time [the plaintiff] encountered architectural barriers,” and it continued even after some of the barriers were corrected because “others remained in place