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

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BYRON CHAPMAN, 

Plaintiff-Appellee, No. 07-16326

v.

 D.C. No.

CV-04-01339-LKK

PIER 1 IMPORTS (U.S.) INC., dba

PIER 1 IMPORTS #1132, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted

March 23, 2010—San Francisco, California

Filed January 7, 2011

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,

Andrew J. Kleinfeld, Barry G. Silverman,

Kim McLane Wardlaw, Richard A. Paez, Marsha S. Berzon,

Johnnie B. Rawlinson, Richard R. Clifton,

Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges.

Opinion by Judge Wardlaw;

Concurrence by Judge N.R. Smith

439

CHAPMAN v. PIER 1 IMPORTS 443

COUNSEL

Laura M. Franze (argued) and Richard Cortez, Jr., Hunton &

Williams LLP, Dallas, Texas, and Roland M. Juarez, Hunton

& Williams LLP, Los Angeles, California, for the appellant.

Lynn Hubbard III (argued) and Scottlynn J. Hubbard IV

(argued) of the Law Offices of Lynn Hubbard (Chico, Califor-

nia) for the appellee.

Thomas E. Perez, Samuel Bagenstos (argued), Jessica Dunsay

Silver, and Marie K. McElderry of the United States Depart-

ment of Justice (Washington, D.C.) for amicus the United

States.

OPINION

WARDLAW, Circuit Judge:

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 injunc-

tion 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 confine-

ment, as well as barriers that he did not personally encounter

444 CHAPMAN v. PIER 1 IMPORTS

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 were 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 numer-

ous 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 dis-

closed 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

1

Attached as Exhibit A to the complaint was an “Accessibility Survey,”

which listed purported ADA and California Building Code (“CBC”) viola-

tions at the Store.

CHAPMAN v. PIER 1 IMPORTS 445

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 sum-

mary 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 encoun-

ter. 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 stand-

ing to sue for injunctive relief either by demonstrating deter-

rence, 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 encoun-

tered barriers may also sue for injunctive relief as to unen-

countered 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 judg-

446 CHAPMAN v. PIER 1 IMPORTS

ment, and remand with instructions to dismiss Chapman’s

ADA claim for lack of jurisdiction and for further proceed-

ings consistent with this opinion.

I.

The ADA was enacted “to provide clear, strong, consistent,

enforceable standards addressing discrimination against indi-

viduals with disabilities.” 42 U.S.C. § 12101(b)(2). Its pas-

sage was premised on Congress’s finding that discrimination

against the disabled is “most often the product, not of invidi-

ous animus, but rather of thoughtlessness and indifference,”

of “benign neglect,” and of “apathetic attitudes rather than

affirmative animus.”2 Alexander v. Choate, 469 U.S. 287,

295-96 (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 discrimina-

tion — 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 (2001); Alexander, 469 U.S. at 295 (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

2

Although these findings supported the Rehabilitation Act of 1973, Pub.

L. No. 93-112, 87 Stat. 355, “[t]he legislative history of the ADA indicates

that Congress intended judicial interpretation of the Rehabilitation Act be

incorporated by reference when interpreting the ADA.” Collings v. Long-

view Fibre Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995).

CHAPMAN v. PIER 1 IMPORTS 447

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)(1)(A)(i). In the context of existing facil-

ities, discrimination includes “a failure to remove architec-

tural 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,

129 S. Ct. 1349 (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. Multi-Cinema, 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 con-

tours 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 “consider[ed] 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

448 CHAPMAN v. PIER 1 IMPORTS

Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir.

2001). The ADAAG’s requirements are as precise as they are

thorough, and the difference between compliance and non-

compliance 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 . . . .”).

[1] Though its purpose is “sweeping,” PGA Tour, 532 U.S.

at 675, 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 liti-

gation. See U.S. Const. art. III, § 2; Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992); Fortyune, 364 F.3d at

1081 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 101

(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; 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)). 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 (1972)).

CHAPMAN v. PIER 1 IMPORTS 449

II.

[2] 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 (1974)). As the three-

judge panel observed, the causation and redressability ele-

ments 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 likeli-

hood 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 mis-

application of 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 (1975). Accordingly, our standing analysis must

focus on the nature and source of Chapman’s claim — dis-

crimination as defined by the ADA. Under the ADA, when a

disabled person encounters an accessibility barrier violating

3

42 U.S.C. § 12188(a)(1) affords private plaintiffs the remedies pro-

vided under the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(a). Dam-

ages may be awarded to aggrieved individuals when requested in suits

brought by the Attorney General. See id. § 12188(b)(2)(B).

450 CHAPMAN v. PIER 1 IMPORTS

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 antidiscrimina-

tion mandate to barriers that completely prohibit access”).

Rather, the barrier need only interfere with the plaintiff’s “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.

[3] Of course, a “barrier” will only amount to such inter-

ference if it affects the plaintiff’s 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 plaintiff’s disability, it will impair the plaintiff’s

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 con-

troversy’ so long as his or her suit is limited to barriers related

to that person’s particular disability.”4 Id. at 1044.

4

The concurrence fails to recognize that a plaintiff’s standing to claim

an ADA violation is necessarily linked to the nature of his disability. We

recognize that an encountered barrier must interfere with the particular

plaintiff’s full and equal enjoyment of the facility, making his use of the

CHAPMAN v. PIER 1 IMPORTS 451

Following this principle, the original three-judge panel rec-

ognized that Chapman’s initial encounter with accessibility

barriers at the Store constituted an injury-in-fact.5 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 encoun-

ters 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 addition-

facility more difficult than a nondisabled individual’s, to constitute an

injury-in-fact, and that he is required to allege and prove that injury. Thus,

a blind person would have standing to assert an ADA violation where a

newly constructed multi-story facility has elevators lacking floor buttons

in Braille, while Chapman, who we assume can see and press the floor

buttons, would not. See, e.g., ADAAG § 4.10.12(2) (requiring that “[a]ll

control buttons shall be designated by Braille and by raised standard

alphabet characters for letters, arabic characters for numerals, or standard

symbols”). Where the barrier is related to the particular plaintiff’s disabil-

ity, however, an encounter with the barrier necessarily injures the plaintiff

by depriving him of full and equal enjoyment of the facility. See, e.g.,

Doran, 524 F.3d at 1044 n.7 (stating that a wheelchair-bound plaintiff can-

not challenge all accessibility barriers, but only those affecting mobility);

accord Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000) (finding

that a disabled plaintiff who was not blind “is not ‘among the injured’ with

regard to ADA violations in the building that do not affect the blind,” and

that he therefore did not have standing as to those violations).

5

That opinion’s author now disagrees with this well-established princi-

ple, but it is far from clear what the concurrence actually would require

instead, given the ADA’s structure. A disabled person who encounters a

“barrier,” i.e., an architectural feature that fails to comply with an

ADAAG standard relating to his disability, suffers unlawful discrimina-

tion as defined by the ADA. 42 U.S.C. § 12182(b)(1)(A)(i). Indeed, by

“establish[ing] a national standard for minimum levels of accessability in

all new facilities,” Indep. Living Res., 982 F. Supp. at 714, the ADAAG

removes the risk of vexatious litigation that a more subjective test would

create. Those responsible for new construction are on notice that if they

comply with the ADAAG’s objectively measurable requirements, they

will be free from suit by a person who has a particular disability related

to that requirement.

452 CHAPMAN v. PIER 1 IMPORTS

ally demonstrate “a sufficient likelihood that he will again be

wronged in a similar way.” Lyons, 461 U.S. at 111. That is,

he must establish a “real and immediate threat of repeated

injury.” Id. at 102 (quoting O’Shea, 414 U.S. at 496). 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 compan-

ions 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 pre-

vented 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 immedi-

ate 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.’ ”).

CHAPMAN v. PIER 1 IMPORTS 453

Other circuits also recognize that an ADA plaintiff demon-

strates 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 sued 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 privi-

leges. Id. at 62-63. The First Circuit concluded that the plain-

tiff had standing to pursue injunctive relief, noting that the

plaintiff alleged an intent to return to the vessel notwithstand-

ing its noncompliance with the ADA, and that unless the bar-

riers 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 dis-

crimination 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.

[4] These opinions reflect first principles: It is well settled

that a plaintiff need not “await the consummation of threat-

ened injury to obtain prospective relief.” Farmer v. Brennan,

454 CHAPMAN v. PIER 1 IMPORTS

511 U.S. 825, 845 (1994) (quoting Pennsylvania v. West Vir-

ginia, 262 U.S. 553, 593 (1923)); see also Lewis v. Casey,

518 U.S. 343, 349 (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 dis-

criminatory 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 plaintiff’s 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 accom-

modation 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 Pickern. There, the plaintiff had encoun-

tered accessibility barriers on past visits to the Paradise mar-

ket, which deterred him from returning to the market even

though he preferred to shop there. Pickern, 293 F.3d at 1135.

Because the plaintiff’s 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

6

See, e.g., Hoepfl v. Barlow, 906 F. Supp. 317, 322-23 (E.D. Va. 1995)

(concluding plaintiff lacked standing to sue for injunctive relief where she

challenged a doctor’s refusal to treat her but was no longer in need of

medical services and she had moved to another state); Atakpa v. Perimeter

OB-GYN Assocs., 912 F. Supp. 1566, 1573-74 (N.D. Ga. 1994) (conclud-

ing plaintiff lacked standing where she challenged discriminatory prenatal

HIV testing and failed to demonstrate that she would ever seek services

from the health provider in the future).

CHAPMAN v. PIER 1 IMPORTS 455

nevertheless concluded that the plaintiff had Article III stand-

ing because “a disabled individual who is currently deterred

from patronizing a public accommodation due to a defen-

dant’s failure to comply with the ADA has suffered ‘actual

injury’ ” for standing purposes. Id. at 1138. Although 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 acces-

sibility barriers, that the store is conveniently located

near his favorite fast food restaurant in Anaheim,

and that he plan[ned] to visit Anaheim 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

Anaheim, [he] will suffer harm as a result of the alleged barri-

ers,” and we found standing to pursue injunctive relief. Id. at

1041.

[5] Thus, an ADA plaintiff can show a likelihood of future

injury when he intends to return to a noncompliant accommo-

dation and is therefore likely to reencounter a discriminatory

architectural barrier. Alternatively, a plaintiff can demonstrate

sufficient injury to pursue injunctive relief when discrimina-

tory architectural barriers deter him from returning to a non-

compliant accommodation. Just as a disabled individual who

intends to return to a noncompliant facility suffers an immi-

nent injury from the facility’s “existing or imminently threat-

ened non-compliance with the ADA,” a plaintiff who is

456 CHAPMAN v. PIER 1 IMPORTS

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

Thus, we have Article III jurisdiction to entertain requests for

injunctive relief both to halt the deterrent effect of a noncom-

pliant accommodation and to prevent imminent “discrimina-

tion,” as defined by the ADA, against a disabled individual

who plans to visit a noncompliant accommodation in the

future.

III.

[6] Once a plaintiff establishes Article III standing, there

remains the question of the scope of his standing. See Doran,

524 F.3d at 1042. As 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 viola-

tive of the ADA.” Id. Because the parties dispute the legal

rule governing this question, we address it here.

[7] We have held that “[a]n ADA plaintiff who has Article

III standing as a result of at least one barrier at a place of pub-

lic accommodation may, in one suit, permissibly challenge all

barriers in that public accommodation that are related to his

or her specific disability.” Id. at 1047.7 Under Doran, Chap-

man need not have personally encountered all the barriers that

impede his access to the Store in order to seek an injunction

7

Though Doran involved the deterrent effect doctrine, the Doran court

did not limit the applicability of this rule to cases where standing is predi-

cated upon deterrence as opposed to imminently threatened injury. See

Doran, 524 F.3d at 1042 (“[I]t is not an essential prerequisite of an ADA

plaintiff’s standing that he prove that deterrence caused by previously

encountered violations was the reason that a particular violation was not

discovered and hence alleged in his complaint.”).

CHAPMAN v. PIER 1 IMPORTS 457

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 stand-

ing 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.

[8] 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 “in-

junctive 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 “[n]othing 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 provi-

sions.” Id. Thus, the ADA specifically does not require that

the disabled individual personally encounter each architec-

tural barrier as a predicate to seeking its removal.

We explained in Doran that our holding was “fully consis-

tent 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 con-

cluded 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. 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; see also Pickern, 293 F.3d

458 CHAPMAN v. PIER 1 IMPORTS

at 1138 (“[A] plaintiff who is threatened with harm in the

future because of existing or imminently threatened non-

compliance with the ADA suffers ‘imminent injury.’ ”).

[9] 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.” Doran, 524 F.3d

at 1044. We recognized that “it is ultimately misleading to

conceptualize each separate architectural barrier inhibiting a

disabled person’s access to a public accommodation as a sep-

arate 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 that would have interfered with his access

as a wheelchair user.” Id. at 1042-43. We held that “a con-

stricted reading of the ADA,” such as requiring an encounter

with each alleged barrier, “could render the benefits [the

ADA] promises largely illusory.” Id. at 1047.

Moreover, “a rule limiting a plaintiff to challenging the bar-

riers he or she had encountered . . . would burden businesses

and other places of public accommodation with more ADA

litigation, encourage piecemeal compliance with the ADA,

and ultimately thwart the ADA’s remedial goals of eliminat-

ing widespread discrimination against the disabled and inte-

grating the disabled into the mainstream of American life.” Id.

Noting the “broad view” of standing that applies in the con-

CHAPMAN v. PIER 1 IMPORTS 459

text of remedial civil rights legislation, as well as the scope

of injunctive relief provided by the ADA, id. at 1043-44, we

held that an ADA plaintiff who has standing to sue because

he has been discriminated against in one aspect of a public

accommodation may, in one lawsuit, obtain an injunction to

prevent impending discrimination throughout the accommo-

dation, id. at 1047.

[10] The Store asks us to overturn our precedent on this

point, arguing that each architectural barrier in a public

accommodation be treated as a separate injury in the standing

inquiry. We decline to do so. The Store’s conception of a cog-

nizable “injury” under the ADA mistakes the statute’s forest

for its trees by focusing on individual barriers instead of

access to places of public accommodation. An ADA plaintiff

suffers a legally cognizable injury under the ADA if he is

“discriminated against on the basis of disability in the full and

equal enjoyment of the goods, services, [or] facilities . . . of

any place of public accommodation.” 42 U.S.C. § 12182(a).

This experience of discrimination confers standing to seek the

remedy provided by the ADA — an injunction to correct the

other, albeit unencountered, barriers that will subject a

wheelchair-bound individual like Chapman to future discrimi-

nation, provided that the threat of such discrimination is real

and immediate.

The only other circuit to have considered the question

agrees with our conclusion that an ADA plaintiff may, in one

lawsuit, pursue an injunction to remove all accessibility barri-

ers related to his disability that he is likely to encounter at a

place of public accommodation to which he intends to return.

See Steger, 228 F.3d at 894. In Steger, a blind individual was

unable to locate the men’s restroom on the first floor of an

office building because it lacked signage with raised lettering.

Id. at 891-92. The plaintiff sought an injunction to address

barriers related to his disability that existed throughout the

building, including not only the inadequate signage for the

men’s restroom on the first floor, but also for unencountered

460 CHAPMAN v. PIER 1 IMPORTS

barriers, including an elevator that lacked audible signals and

numerous other doors that lacked raised-letter signs. Id. at

893. The building’s owner argued that the plaintiff’s injury

was limited to the first floor restroom and he lacked standing

as to any other barriers. The Eighth Circuit rejected the defen-

dant’s narrow construction of the plaintiff’s injury, conclud-

ing that the plaintiff “need not encounter all of these barriers

to obtain effective relief.” Id. at 894. Recognizing that, under

the ADA, “injunctive relief is mandated to ‘make such facili-

ties readily accessible to and usable by individuals with dis-

abilities,’ ” the Eighth Circuit concluded that Steger had

standing to seek relief for any ADA violations in the building

that affected his specific disability. Id. (quoting 42 U.S.C.

§ 12188(a)(2)). We share the Eighth Circuit’s view that an

ADA plaintiff who has been discriminated against in one

aspect of a public accommodation may, in a single lawsuit,

obtain an injunction to prevent impending discrimination on

account of his specific disability throughout the accommoda-

tion.

[11] This conclusion does not transform the ADA into an

open-ended private attorney general statute, because the scope

of such an injunction is limited. First, our holding in no way

relieves plaintiffs from the constitutionally imposed burden of

demonstrating an injury-in-fact and a sufficient likelihood of

repeated harm. An ADA plaintiff must show at each stage of

the proceedings either that he is deterred from returning to the

facility or that he intends to return to the facility and is there-

fore likely to suffer repeated injury. He lacks standing if he

is indifferent to returning to the store or if his alleged intent

to return is not genuine, or if the barriers he seeks to enjoin

do not pose a real and immediate threat to him due to his par-

ticular disability. Injunctions do not extend to barriers not

affecting persons with the plaintiff’s particular disability, see

Steger, 228 F.3d at 893-94; barriers that the plaintiff is not

reasonably likely to encounter, such as those in areas off lim-

its to customers, see Long, 267 F.3d at 924; or barriers in

CHAPMAN v. PIER 1 IMPORTS 461

areas he is unlikely to enter, such as ladies’ restrooms or

employee work areas.

Second, in declining to overturn Doran, we do not expand

or otherwise modify Congress’s considered choice as to the

rights or remedies available to the disabled. As noted above,

our precedent is anchored in Congress’s decision to authorize

courts to issue “order[s] to alter facilities to make such facili-

ties readily accessible to and usable by individuals with dis-

abilities.” 42 U.S.C. § 12188(a)(2).

Finally, we are not persuaded by Pier One’s warning that

Doran opens the floodgates to “potentially vexatious law-

suits.” Instead, our precedent facilitates ADA compliance by

eliminating the piecemeal litigation that would result from the

contrary rule Pier One urges. As we have previously

observed, “It makes no sense to require a disabled plaintiff to

challenge, in separate cases, multiple barriers in the same

facility, controlled by the same entity, all related to the plain-

tiff’s specific disability.” Doran, 524 F.3d at 1047.

[12] Our reaffirmance of Doran is entirely consistent with

our standing discourse. When a plaintiff “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 . . . suffered an injury in

fact.” Id. at 1042 n.5. The threat of repeated injury in the

future is “real and immediate” so long as the encountered bar-

riers either deter him from returning or continue to exist at a

place of public accommodation to which he intends to return.

When discrimination under the ADA subjects the plaintiff to

an injury-in-fact, injunctive relief addressing only the barriers

that the plaintiff encountered, but ignoring other existing bar-

riers that he is reasonably likely to encounter, fails to dissipate

the real and immediate threat of future discrimination.

IV.

[13] Throughout this litigation Chapman has failed to

allege and prove the elements of standing in the ADA context

462 CHAPMAN v. PIER 1 IMPORTS

that we describe above. Chapman’s complaint itself is juris-

dictionally defective. Although Pier One failed to move to

dismiss under Federal Rule of Civil Procedure 12(b)(1),

“[f]ederal courts are required sua sponte to examine jurisdic-

tional issues such as standing.” Bernhardt v. County of Los

Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (internal quotation

marks omitted); accord United States v. Hays, 515 U.S. 737,

742 (1995). The existence of Article III standing is not subject

to waiver. Hays, 515 U.S. at 742. It must be demonstrated “at

the successive stages of the litigation,” Lujan, 504 U.S. at

561, and “[i]f the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action,”

Fed. R. Civ. P. 12(h)(3). “[E]very federal appellate court has

a special obligation to ‘satisfy itself not only of its own juris-

diction, but also that of the lower courts in a cause under

review.’ ” Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237,

244 (1934)).

[14] While we are mindful of the generous pleading stan-

dards that apply to civil rights plaintiffs, “a liberal interpreta-

tion of a . . . civil rights complaint may not supply essential

elements of the claim that were not initially pled.” Pena v.

Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (quoting Ivey v.

Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). Chap-

man’s complaint fails to sufficiently allege the essential ele-

ments of Article III standing. Although Chapman alleges that

he is “physically disabled,” and that he “visited the Store” and

“encountered architectural barriers that denied him full and

equal access,” he never alleges what those barriers were and

how his disability was affected by them so as to deny him the

“full and equal” access that would satisfy the injury-in-fact

requirement (i.e., that he personally suffered discrimination

under the ADA on account of his disability).

Instead, Chapman attached to his complaint an “Accessibil-

ity Survey,” which listed barriers known to him that he claims

“denied him access to the Store, or which he seeks to remove

CHAPMAN v. PIER 1 IMPORTS 463

on behalf of others under related state statutes.” The Accessi-

bility Survey simply identifies alleged ADA and CBC viola-

tions without connecting the alleged violations to Chapman’s

disability, or indicating whether or not he encountered any

one of them in such a way as to impair his full and equal

enjoyment of the Store.

The nature of the entries in the Accessibility Survey is

illustrated by the entry for “Accessible Entrance Door Outside

Signage.” Below that heading is listed:

This list of alleged CBC and ADAAG violations8 cannot sub-

stitute for the factual allegations required in the complaint to

satisfy Article III’s requirement of an injury-in-fact. Chapman

does not even attempt to relate the alleged violations to his dis-

ability.9

Unlike in other cases where we have found Article III

standing, see, e.g., D’Lil, 538 F.3d at 1037, Chapman leaves

the federal court to guess which, if any, of the alleged viola-

8

It bears noting that some of the listings in the Accessibility Survey,

such as signage above the panic bar, do not even allege violations of the

ADAAG; instead, they merely recite portions of the ADAAG’s require-

ments. This is insufficient to allege discrimination under the ADA.

9

The Supreme Court’s recent decision in Ashcroft v. Iqbal, 129 S. Ct.

1937 (2009), supports this conclusion. Chapman’s allegation that the bar-

riers at the Store “denied him full and equal enjoyment” is precisely the

“formulaic recitation” of the elements of a claim that the Supreme Court

has deemed insufficient under Rule 8. Id. at 1949. To sufficiently allege

standing, Chapman must do more than offer “labels and conclusions” that

parrot the language of the ADA. Id.

464 CHAPMAN v. PIER 1 IMPORTS

tions deprived him of the same full and equal access that a

person who is not wheelchair bound would enjoy when shop-

ping at Pier One. Nor does he identify how any of the alleged

violations threatens to deprive him of full and equal access

due to his disability if he were to return to the Store, or how

any of them deter him from visiting the Store due to his dis-

ability. Although Chapman may establish standing as to unen-

countered barriers related to his disability, the list of barriers

incorporated into his complaint does nothing more than “per-

form a wholesale audit of the defendant’s premises.” Martinez

v. Longs Drug Stores, Inc., No. CIV-S-03-1843 DFL CMK,

2005 U.S. Dist. LEXIS 23737, at *12 (E.D. Cal. Aug. 25,

2005).10

[15] Because Chapman lacked standing at the outset of this

litigation to assert the ADA claims, the district court should

have dismissed them. See Fed. R. Civ. P. 12(b)(1); Hays, 515

U.S. at 747 (ordering the district court to dismiss the com-

plaint for lack of standing). We therefore vacate the district

court’s grant of summary judgment, and remand with instruc-

tions to dismiss Chapman’s ADA claim for lack of jurisdic-

tion and for further proceedings consistent with this opinion.11

VACATED, DISMISSED and REMANDED.

10

It is for the same reason that the Card Report does not supply the

“injury-in-fact” element, even if it had been properly filed as part of an

amended complaint. It, too, does nothing more than to list additional CBC

and ADAAG provisions that the Store allegedly violated.

11

Because we reverse the district court’s Article III standing determina-

tion, we need not address the remaining issues on appeal.

CHAPMAN v. PIER 1 IMPORTS 465

N.R. SMITH, Circuit Judge, concurring in the judgment,

joined by RAWLINSON, Circuit Judge:

I concur in the majority’s conclusion that Chapman failed

procedurally to demonstrate standing to maintain this action.

However, I disagree with the majority’s analysis in reaching

its conclusion and believe it expands standing for ADA plain-

tiffs beyond the constitutional confines of Article III.

I. Standing under the Americans with Disabilities Act of

1990

The Supreme Court has not equivocated regarding the

importance of standing within the federal courts. “No princi-

ple is more fundamental to the judiciary’s proper role in our

system of government than the constitutional limitation of

federal-court jurisdiction to actual cases or controversies.”

Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 37

(1976). The Article III requirement of standing is “essential

and unchanging.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992). At an irreducible constitutional minimum, an

Americans with Disabilities Act of 1990 (“ADA”) plaintiff

must establish standing by showing (1) he or she has suffered

an “injury in fact;” (2) there is “a causal connection between

the injury” and the defendant’s complained-of conduct; and

(3) it is likely “that the injury will be redressed by a favorable

decision.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th

Cir. 2008) (citing Lujan, 504 U.S. at 560-61). Even if a claim

satisfies the three elements of standing to sue for past illegal

conduct, to sustain standing for injunctive relief, a claimant

must also establish a “ ‘real and immediate threat of repeated

injury.’ ” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075,

1081 (9th Cir. 2004) (quoting O’Shea v. Littleton, 414 U.S.

488, 496 (1974)).

A. Encountered Barriers

In the ADA, Congress created a cause of action for dis-

abled persons who experience discrimination through archi-

466 CHAPMAN v. PIER 1 IMPORTS

tectural barriers. 42 U.S.C. § 12101(a)(5). “Congress may

enact statutes creating legal rights, the invasion of which

creates standing, even though no injury would exist without

the statute.” Linda R. S. v. Richard D., 410 U.S. 614, 617 n.3

(1973). This principle reflects Congress’s ability to elevate

“de facto injuries,” otherwise not actionable at common law,

into “legally cognizable injuries.” Lujan, 504 U.S. at 578. For

example, the Civil Rights Act of 1968 elevated an individu-

al’s “personal interest in living in a racially integrated com-

munity” to a cognizable legal injury if a private party denied

that interest. Id. (citing Trafficante v. Metro. Life Ins. Co., 409

U.S. 205, 208-12 (1972)). However, “broadening of the cate-

gories of injury that may be alleged in support of standing is

a different matter from abandoning the requirement that the

party seeking review must himself have suffered an injury.”

Id. (quoting Sierra Club v. Morton, 405 U.S. 727, 738 (1972))

(quotation marks and alteration omitted).

Under the above articulated requirements for standing, I

agree fully with the majority’s ultimate holding that:

Chapman leaves the federal court to guess which, if

any, of the alleged violations deprived him of the

same full and equal access that a person who is not

wheelchair bound would enjoy when shopping at

Pier One. Nor does he identify how any of the

alleged violations threatens to deprive him of full

and equal access due to his disability if he were to

return to the Store, or how any of them deter him

from visiting the Store due to his disability.

Maj. Op. at 463-64. Requiring that an ADA plaintiff plead

and prove that a barrier affects him by making access or

enjoyment of a facility more difficult for him than for a non-

disabled person satisfies Article III’s requirement that an

injury affect a “plaintiff in a personal and individual way.”

Lujan, 504 U.S. at 560 n.1. However, I must disagree with the

majority’s statement that “[w]here the [ADAAG defined] bar-

CHAPMAN v. PIER 1 IMPORTS 467

rier is related to the particular plaintiff’s disability, . . . an

encounter with the barrier necessarily injures the plaintiff by

depriving him of full and equal enjoyment of the facility.”

Maj. Op. at 450-51 n.4. In this statement, the majority con-

fuses a cognizable interest with an actual injury to that inter-

est.

To demonstrate that he has suffered an “injury in fact,” a

plaintiff must establish an “invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual

or imminent, not conjectural or hypothetical.” Doran, 524

F.3d at 1039 (quoting Lujan, 504 U.S. at 560). Thus, a plain-

tiff must allege more than encountering an ADAAG defined

barrier in order to establish standing. See Lujan, 504 U.S. at

563 (“[T]he injury in fact test requires more than an injury to

a cognizable interest. It requires that the party seeking review

be himself among the injured.” (internal quotation marks and

citation omitted)); id. at 560 n.1 (“By particularized, we mean

that the injury must affect the plaintiff in a personal and indi-

vidual way.”); see also Warth v. Seldin, 422 U.S. 490, 501

(1975) (Although Congress may grant a right to bring an

action otherwise barred, “the plaintiff still must allege a dis-

tinct and palpable injury to himself, even if it is an injury

shared by a large class of other possible litigants.”).

To the extent the majority’s analysis would have allowed

Chapman to simply allege a specific encounter with an

ADAAG barrier related to his disability to satisfy the injury

in fact requirement for standing, it fails to meet the require-

ment that the encounter “affect[s] the plaintiff in a personal

and individual way,” Lujan, 504 U.S. at 560 n.1, and is no dif-

ferent than allowing standing for barriers not related to the

plaintiff’s disability. An encounter with an ADAAG defined

barrier that a disabled person does not notice (or that does not

affect the individual) is not a “distinct and palpable” injury.

See Warth, 422 U.S. at 501.

The majority correctly points out that a barrier need not

“completely preclude the plaintiff from entering or from any

468 CHAPMAN v. PIER 1 IMPORTS

use of the facility” to give standing to the plaintiff. Maj. Op.

at 450, See Fortyune, 364 F.3d 1081-82. However, it is

important that the encounter with the barrier adversely affect

the plaintiff in some way to satisfy the particularized injury

requirement for injury in fact. Lujan, 504 U.S. at 578; Doran,

524 F.3d at 1042 n.5 (“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. . . .” (emphasis added)).

An abstract injury (as suggested by the majority) is not

enough. City of Los Angeles v. Lyons, 461 U.S. 95, 101

(1983). “[C]laims of injury that are purely abstract, even if

they might be understood to lead to ‘the psychological conse-

quence presumably produced by observation of conduct with

which one disagrees,’ do not provide the kind of particular,

direct, and concrete injury that is necessary to confer stand-

ing. . . .” ASARCO, Inc. v. Kadish, 490 U.S. 605, 616 (1989)

(internal citation omitted).

Rather than merely pointing to a violation of the ADAAG,

a plaintiff must also point to some type of personalized injury,

whether the injury is objective (physical or economic)1 or sub-

jective (emotional or aesthetic). This requirement is consistent

with precedent. For example, in Fortyune, the plaintiff who

planned to return to the movie theater nevertheless was

adversely affected, because he worried about his ability to sit

with his wife, as was his right. See 364 F.3d at 1081. Given

the language in Fortyune, a barrier’s adverse effect on a plain-

tiff may encompass frustration, embarrassment, or physical

difficulty with a barrier in addition to actually being deterred

from entering a facility. Another example of a subjective

adverse affect is the aesthetic injury relied upon by environ-

1

Physical or economic injuries, of course, have long been recognized as

generally sufficient to maintain injury in fact. See Ass’n of Data Process-

ing Serv. Orgs., Inc. v. Camp, 397 U. S. 150 (1970).

CHAPMAN v. PIER 1 IMPORTS 469

mental plaintiffs to maintain standing. See Sierra Club, 405

U.S. at 734-35.

The majority misconstrues personalized injury as a solely

subjective one that could give rise to “vexatious litigation.”2

Majority Opinion at 451 n.5. The majority ignores, however,

that in addition to a personalized injury a plaintiff must also

plead and prove the other two elements of standing in order

to meet the standing requirements. An ADA plaintiff must

show his injury is caused by a violation of the objective

ADAAG standards and may be redressed by a favorable order

from a court. See Pickern v. Holiday Quality Foods, Inc., 293

F.3d 1133, 1137 (9th Cir. 2002) (“[Defendant’s] noncompli-

ance with [the ADA] has caused [plaintiff’s] injury, and an

injunction requiring [defendant] to comply with the ADA

would redress it.”). Thus, rather than leading to vexatious liti-

gation, this is a higher standard from that announced by the

majority.3

2

In addition, the majority attempts to fault the concurrence for articulat-

ing a different standard than that recognized by the three-judge panel, on

which he sat. Confined by the holding of another three-judge panel in

Doran, the original panel also held that it was “clear” Chapman had stand-

ing to challenge the ADA barriers that he “claimed to have encountered”

without analyzing whether he claimed that he was harmed by the barriers.

See Chapman v. Pier 1 Imports, Inc., 571 F.3d 853, 857 (9th Cir. 2009).

While the original panel was confined by Doran, an en banc panel need

not be constrained by such precedent. See Upton v. C.I.R., 283 F.2d 716,

723 (9th Cir. 1960). Regardless of whether Chapman encountered barriers,

the court should be required to analyze whether Chapman has alleged or

shown that the barriers actually adversely affected him.

3

It is true that the vast majority of plaintiffs will believe that they have

been adversely affected by a barrier that is noncompliant with the ADA.

When a plaintiff, however, encounters a barrier, yet believes it has no

actual effect on his ability to participate in or benefit from a place of

accommodation, then the plaintiff is, in reality, suing on behalf of others

and does not have standing. See Valley Forge Christian College v. Am.

United for Separation of Church and State, Inc., 454 U.S. 464, 473 (1982)

(“The federal courts have abjured appeals to their authority which would

convert the judicial process into no more than a vehicle for the vindication

of the value interests of concerned bystanders.” (internal quotations and

citation omitted)).

470 CHAPMAN v. PIER 1 IMPORTS

In fact, the majority’s statement that a simple encounter

with a barrier is sufficient to confer standing collapses the

injury in fact element of standing with the causation element.

If the injury in fact element is an encounter with an ADA non-

compliant barrier and the causation element is “noncompli-

ance with [the ADA],” then, in reality, these two elements are

now one and the majority has expanded standing under the

ADA to render the three part test illusory.

Lastly, to satisfy the requirement for a “real and immedi-

ate” threat of repeated injury required by Article III for

injunctive relief, a plaintiff must also show an “actual or

imminent” injury. Pickern, 293 F.3d at 1138. An actual or

imminent injury occurs when a plaintiff has a concrete intent

to return to a facility with a barrier which will continue to

adversely affect his ability to benefit from or participate in the

facility. Id.; see also Fortyune, 364 F.3d at 1081-82. As an

alternative basis for an actual injury, this circuit has held that

a plaintiff, who does not intend to return to a non-ADA com-

pliant store because he is deterred by a barrier at the store,

suffers an ongoing injury, redressable by injunctive relief.

Pickern, 293 F.3d at 1138; D’Lil v. Best W. Encina Lodge &

Suites, 538 F.3d 1031, 1036-37 (9th Cir. 2008). In Pickern

and D’Lil, plaintiffs’ refusal to return to facilities where barri-

ers existed was the injury that satisfied Lujan’s requirement

that the plaintiff be affected in a “personal and individual

way.” In Fortyune, the personalized, ongoing adverse effect

was the inability to sit next to a companion (i.e., enjoy full

benefit of the facility). In either case, an injury in addition to

the encounter with the barrier itself satisfied the “actual or

imminent” injury requirement for injunctive relief.

Under the above reasoning, the majority’s holding that

Chapman failed to identify how any of the alleged violations

“deprived him of the same full and equal access that a person

who is not wheelchair bound would enjoy” adequately reflects

the requirements that an ADA plaintiff must plead and prove

to show injury in fact sufficient to maintain standing. To be

CHAPMAN v. PIER 1 IMPORTS 471

consistent with the Constitution, injury in fact for standing for

injunctive relief under the ADA requires a plaintiff to (1)

encounter or have knowledge of a barrier; (2) sufficiently

allege that he or she was, at a minimum, adversely affected

by the barrier; and (3) sufficiently allege either a concrete

plan to return to the facility or that the adverse effect of the

barrier deters the plaintiff from returning to the facility. To

the extent that the majority would allow a simple encounter

with an ADAAG barrier that does not “deprive” a plaintiff “of

the same full and equal access” that a non-disabled person

would enjoy at a facility to confer standing, it exceeds the

confines of Article III and impermissibly allows plaintiffs to

sue on behalf of others, rather then themselves.

B. Unencountered Barriers

Once standing based on encountering one barrier is estab-

lished, “[t]here remains a question . . . about the scope of bar-

riers that [a plaintiff] may challenge.” Doran, 524 F.3d at

1042. Expanding on the “deterrent effect” doctrine, Doran

held that, once a plaintiff establishes that he encountered a

barrier which deterred him from use and enjoyment of the

facility, that plaintiff could then send an expert into the store

to discover other ADA violations. 524 F.3d at 1043-44. The

plaintiff was then deemed to have standing to challenge all

discovered violations affecting his or her disability. Id. Doran

reasoned:

Given that an ADA plaintiff has standing because of

deterrence from returning in the face of uncertainty,

it is prudent to eliminate that uncertainty through the

judicial device of discovery, thus allowing the plain-

tiff to obtain by formal means the information about

the scope of the defendant’s violations that he may

have been unable to safely ascertain himself because

of those same violations.

Id. at 1043. Doran justified the constitutionality of this rule

by stating “we have been instructed to take a broad view of

472 CHAPMAN v. PIER 1 IMPORTS

Article III standing in civil rights cases where private rights

of action are the primary means of enforcing the statute.” Id.

Doran concluded that the “list of barriers would then in total

constitute the factual underpinnings of a single legal injury

. . . [that] actually harmed the disabled person by deterring

that disabled person from visiting a facility . . . .” Id. at 1044.

In other words, when a plaintiff is deterred from entering a

facility because of non-ADA compliant barriers, all the barri-

ers existing at the facility (known and unknown) can be con-

strued as one injury of deterrence. Our holding in Doran

reflects the necessity of deterrence:

An ADA plaintiff who has encountered or has per-

sonal knowledge of at least one barrier related to his

or her disability when he or she files a complaint,

and who has been deterred from attempting to gain

access to the public accommodation because of that

barrier, has suffered an injury in fact for the purpose

of Article III. An ADA plaintiff who has Article III

standing as a result of at least one barrier at a place

of public accommodation may, in one suit, permissi-

bly challenge all barriers in that public accommoda-

tion that are related to his or her specific disability.

524 F.3d at 1047 (internal citation omitted, emphasis added).

When a plaintiff is not deterred from returning to a facility,

there is not a unification of barriers into one injury in fact

constituting deterrence. Thus, there can be no standing to

challenge unencountered barriers.

Doran’s reasoning did not require “completely preclud[-

ing]” a plaintiff from entering a facility in order to satisfy the

“imminent” injury necessary for injunctive relief. Instead, the

deterrence necessary for standing to challenge unencountered

barriers in the context of Doran means, at a minimum, “un-

certainty about . . . other, potentially dangerous obstacles . . .

to be encountered when the disabled persons return to the site

after the ‘successful’ conclusion of their suit. Such uncer-

CHAPMAN v. PIER 1 IMPORTS 473

tainty is itself an actual, concrete and particularized injury.”

524 F.3d at 1043. This uncertainty ensures that the plaintiff is

not asking for an injunction based solely on past injuries, but

is continuing to suffer the ongoing injury of deterrence.

By not requiring deterrence before a plaintiff can conduct

discovery to find barriers, the majority seeks to allow an ADA

plaintiff to represent similarly situated plaintiffs, regardless of

whether he would be injured (adversely affected) by the chal-

lenged barrier. Because Chapman repeatedly disavowed any

deterrence resulted from the barriers he encountered, he expe-

rienced no unified injury and had no basis to challenge all

unencountered barriers at Pier 1.

Not only does such an expansion of standing violate the

constitutional aspects of standing, as discussed above, but it

also violates the prudential aspects of standing. In Doran, we

recognized the “question regarding the breadth of [an ADA

plaintiff’s] right to sue also implicates the prudential aspects

of the standing doctrine.” 524 F.3d at 1044 (citing Bennett v.

Spear, 520 U.S. 154, 164 (1997)). Prudential standing limits

federal jurisdiction, including “the general prohibition on a

litigant’s raising another person’s legal rights, the rule barring

adjudication of generalized grievances more appropriately

addressed in the representative branches, and the requirement

that a plaintiff’s complaint fall within the zone of interests

protected by the law invoked.” Id. (quoting Allen v. Wright,

468 U.S. 737, 751 (1984)). Allowing a plaintiff to challenge

barriers which never affected him in the past, which he had

never considered at the time of filing the complaint, and of

which he could easily learn by returning to a store (that he is

not deterred from frequenting), runs afoul of the prudential

principles against generalized grievances.

As our sister circuit has explained, “[t]he ADA does not

permit private plaintiffs to bring claims as private attorneys

general to vindicate other people’s injuries.” McInnis-Misenor

v. Maine Med. Ctr., 319 F.3d 63, 69 (1st Cir. 2003); see also

474 CHAPMAN v. PIER 1 IMPORTS

Raines v. Byrd, 521 U.S. 811, 820 (1997) (“[W]e must put

aside the natural urge to proceed directly to the merits of this

important dispute and to ‘settle’ it for the sake of convenience

and efficiency. Instead, we must carefully inquire as to

whether appellees have met their burden of establishing that

their claimed injury is personal, particularized, concrete, and

otherwise judicially cognizable.”).

Therefore, as the prior panel outlined, Chapman did not

have standing as to unencountered barriers, because he was

not deterred from returning to Pier 1. The lack of deterrence

defeats Doran’s justification for allowing unencountered bar-

riers to be considered as one injury and allows Chapman to

bring what amounts to generalized grievances against Pier 1.