Amicus Curiae Brief — Acheson Hotels, LLC, Petitioner v. Deborah Laufer

Supreme Court briefAug 9, 2023

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No. 22-429

IN THE

Supreme Court of the United States

ACHESON HOTELS, LLC,

Petitioner,

DEBORAH LAUFER,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 9, 2023

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

Laufer’s Asserted Harm Is Closely

Analogous to the Humiliation and Sense

of Exclusion that Formed the Basis for

Common-Law Suits for Breach of the

Innkeeper’s Duty to Entertain .................

Since Our Nation’s Founding, Private

Citizens Have Taken Active Roles in

Enforcing Laws Promoting the Public

Welfare Without Constitutional

Objection ...................................................

CONCLUSION......................................................

II.

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Aaron v. Ward,

136 A.D. 818 (N.Y. App. Div. 1910) ............

Adams v. Woods,

6 U.S. 336 (1805) .........................................

Allen v. Wright,

468 U.S. 737 (1984) .....................................

Bowsher v. Synar,

478 U.S. 714 (1986) .....................................

Chi. & Nw. Ry. Co. v. Williams,

55 Ill. 185 (1870) .......................................... 11, 13

Civil Rights Cases,

109 U.S. 3 (1883) .........................................

3, 7

Coleman v. Miller,

307 U.S. 433 (1939) .....................................

Curtis v. Loether,

415 U.S. 189 (1974) .....................................

Emmke v. De Silva,

293 F. 17 (8th Cir. 1923) .............................

The Emily and Caroline,

22 U.S. 381 (1824) .......................................

Evans, qui tam v. Bollen,

4 U.S. 342 (C.C.D. Pa. 1800) .......................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964) .....................................

Hoover v. Haynes,

91 N.W. 392 (Neb. 1902) ............................. 10, 12

Hoover v. Haynes,

93 N.W. 732 (Neb. 1903) ............................. 10, 13

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Bos.,

515 U.S. 557 (1995) .....................................

3, 14

Jackson v. Va. Hot Springs Co.,

213 F. 969 (4th Cir. 1914) ................... 9, 10, 11, 13

Ketland, qui tam v. The Cassius,

2 U.S. 365 (C.C.D. Pa. 1796) .......................

Lane v. Cotton,

12 Mod. 472, 88 Eng. Rep. 1458

(K.B. 1701) ...................................................

Louisville & N.R. Co. v. Frizzle,

108 So. 615 (Ala. Ct. App. 1926) .................

Markham v. Brown,

8 N.H. 523 (1837).........................................

Marvin v. Trout,

199 U.S. 212 (1905) ..................................... 17, 19

The Merino,

22 U.S. 391 (1824) .......................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Newman v. Piggie Park Enters., Inc.,

390 U.S. 400 (1968) .....................................

The Plattsburgh,

23 U.S. 133 (1825) .......................................

Prior of Lewes v. Master Roger de Holt (1300),

reprinted in 48 Selden Society 198

(1931) ...........................................................

Quigley v. Cent. Pac. R. Co.,

20 F. Cas. 138 (C.C.D. Nev. 1878) ..............

Rex et John Gobbard v. Hanville (undated),

reprinted in 48 Selden Society 215

(1931) ...........................................................

Rex v. Ivens,

7 Car. & P. 213, 173 Eng. Rep. 94

(N.P. 1835) ...................................................

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) .....................................

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) .................................

Smith v. Pittsburg, Ft. Wayne & Chi. Ry. Co.,

23 Ohio St. 10 (1872) ...................................

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ................................. 1, 2, 3, 23

Sprint Commc’ns Co. v. APCC Servs., Inc.,

554 U.S. 269 (2008) .....................................

TABLE OF AUTHORITIES – cont’d

Page(s)

State v. Bishop,

7 Conn. 181 (1828) .......................................

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) .................... 2, 3, 11, 14, 15

United States v. Bornstein,

423 U.S. 303 (1976) .....................................

United States ex rel. Marcus v. Hess,

317 U.S. 537 (1943) .....................................

United States v. Simms,

5 U.S. 252 (1803) .........................................

United States v. Texas,

143 S. Ct. 1964 (2023) .................................

1, 15

Vt. Agency of Nat. Res. v. United States ex rel.

Stevens,

529 U.S. 765 (2000) ............................ 15, 16, 17, 20

Statutes and Legislative Materials

A Remedy for Him Who Is Wrongfully

Pursued in Admiralty Court, 2 Hen. 4,

c.11 (1400) ...................................................

Act of Feb. 25, 1791, § 8, 1 Stat. 191 ............

Act of Feb. 20, 1792, § 25, 1 Stat. 232 ..........

Act of July 20, 1790, § 1, 1 Stat. 131 ............

TABLE OF AUTHORITIES – cont’d

Page(s)

Act of July 20, 1790, § 4, 1 Stat. 133 ............

Act of July 22, 1790, § 3, 1 Stat. 137 ............

Act of Mar. 1, 1790, § 3, 1 Stat. 101 .............

Act of Mar. 3, 1791, § 44, 1 Stat. 199 ...........

Act of Mar. 22, 1794, ch. 11, 1 Stat. 347 ......

21, 22

Act of May 19, 1796, § 18, 1 Stat. 469 ..........

An Act to Regulate the Collection of the

Duties Imposed by Law on the Tonnage of

Ships or Vessels, and on Goods, Wares and

Merchandises Imported into the United

States, ch. 5, 1 Stat. 29 (1789) ...................

Cong. Globe, 42d Cong., 2d Sess. (1872) ......

English Gaming Law, 9 Anne, c.14, § 2

(1710) ..........................................................

New Jersey Gaming Law, Act of Feb. 8, 1797,

§ IV (1800)...................................................

New Jersey Gaming Law, Act of Feb. 8, 1797,

§ V (1800) ....................................................

Statute Prohibiting the Sale of Wares After

Close of Fair, 5 Edw. 3, c.5 § 6 (1331) ........

42 U.S.C. § 12102 ..........................................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Other Authorities

1 C.G. Addison, A Treatise on the Law of Torts

(1876) .......................................................... 4, 8, 9

Randy Beck, Qui Tam Litigation Against

Government Officials: Constitutional

Implications of a Neglected History,

93 Notre Dame L. Rev. 1235 (2018)...........

17, 21

3 William Blackstone, Commentaries on the

Laws of England (1768) .............................

16, 17

4 William Blackstone, Commentaries on the

Laws of England (1769) .............................

28 C.F.R. § 36.302(e)(ii) ................................

Thomas M. Cooley, A Treatise on the Law of

Torts or the Wrongs that Arise Independent

of Contract (1879) ....................................... 4, 8, 9

Gretchen L. Forney, Qui Tam Suits: Defining

the Rights and Roles of the Government and

the Relator Under the False Claims Act,

82 Minn. L. Rev. 1357 (1998) .....................

Dan L. Hargrove, Soldiers of Qui Tam

Fortune,

34 Pub. Cont. L.J. 45 (2004).......................

Paul Hartmann, Racial and Religious

Discrimination by Innkeepers in U.S.A.,

12 Modern L. Rev. 449 (1949) ....................

2 William Hawkins, A Treatise of the Pleas of

the Crown (1787) ........................................

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

1 Holinshed’s Chronicles of England,

Scotland, and Ireland (1807 ed.) ...............

Harold J. Krent, Executive Control over

Criminal Law Enforcement: Some Lessons

from History,

38 Am. U. L. Rev. 275 (1989) .....................

18, 19

F.C. Milsom, Trespass from Henry III to

Edward III, Part III: More Special Writs and

Conclusions,

74 L.Q. Rev. 561 (1958) ..............................

Note, The History and Development of Qui

Tam,

1972 Wash. U. L.Q. 81 (1972) ....................

James E. Pfander, Public Law Litigation in

Eighteenth Century America: Diffuse Law

Enforcement for a Partisan World,

92 Fordham L. Rev.

(forthcoming 2023) ......................... 6, 7, 21, 22, 23

Charles Rappleye, Sons of Providence: The

Brown Brothers, the Slave Trade, and the

American Revolution (2006) .......................

Joseph Story, Commentaries on the Law of

Bailments (9th ed. 1878) ............................

Cass R. Sunstein, What’s Standing After

Lujan? Of Citizen Suits, “Injuries,” and

Article III,

91 Mich. L. Rev. 163 (1992)........................

18, 23

TABLE OF AUTHORITIES – cont’d

Page(s)

Stephen L. Winter, The Metaphor of Standing

and the Problem of Self-Governance,

40 Stan. L. Rev. 1371 (1988) ......................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in protecting meaningful access to the courts,

in accordance with constitutional text and history, and

therefore has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT2

This Court’s “doctrine of standing derives from the

case-or-controversy

requirement,”

and

“that

requirement in turn is grounded in historical practice.”

Spokeo, Inc. v. Robins, 578 U.S. 330, 340-41 (2016).

“[H]istory and tradition” thus provide “a meaningful

guide to the types of cases that Article III empowers

federal courts to consider.” United States v. Texas, 143

S. Ct. 1964, 1970 (2023) (quoting Sprint Commc’ns Co.

v. APCC Servs., Inc., 554 U.S. 269, 274 (2008)). This

is one of those cases.

1 Under Rule 37.6 of the Rules of this Court, amicus states that

no counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amicus or its counsel made a monetary contribution to its

preparation or submission.

2 Amicus agrees with Respondent, as explained in her

Suggestion of Mootness filed July 24, 2023, that this Court should

vacate the judgment below on mootness grounds in light of

Respondent’s dismissal of her complaint with prejudice.

However, amicus offers this brief to aid this Court should it decide

to reach the standing issue in the question presented.

Here, “history and tradition” support Deborah

Laufer’s standing because her asserted harm has a

“‘close relationship’ to a harm ‘traditionally’ recognized

as providing a basis for a lawsuit in American courts,”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204

(2021) (quoting Spokeo, 578 U.S. at 340-41)—namely,

the dignitary harms that, at common law, gave rise to

private actions for infringement of what was then

known as the innkeeper’s “duty to entertain.” Under

this Court’s precedents, that common-law analogue is

sufficient—though not necessary, id. at 2204-05

(discussing Congress’s role in “elevat[ing] harms”)—to

render Laufer’s injury cognizable. Petitioners and

their amici wholly fail to grapple with this critical

history.

Instead, they assert that Laufer’s effort to seek

redress for the harm she has experienced runs afoul of

separation of powers principles because she is a

“tester,” and her suit will benefit other disabled

individuals. This, too, is wrong: regardless of her

desire to serve the larger community of people with

disabilities, Laufer is a disabled person herself, and

she seeks to enforce her own right to accessibility

information and freedom from discrimination under

the ADA and to remedy her own harm. That should

end the matter.

But even if this Court were to discount Laufer’s

allegation of deeply personal injury, there still would

be no sound historical basis for concluding that her

suit runs afoul of Article II or Article III because the

practice of private individuals suing to enforce federal

law is itself deeply rooted in our nation’s “history and

tradition.”

Deborah Laufer is a disabled person within the

meaning of the Americans with Disabilities Act (ADA),

42 U.S.C. § 12102. She uses a wheelchair or cane to

get around, has limited use of her hands, and is

visually impaired. Pet App. 2a-3a. As relevant here,

Title III of the ADA and its implementing regulations

require hotel websites to provide sufficient

information to “permit individuals with disabilities to

assess independently whether a given hotel or guest

room meets his or her accessibility needs.” 28 C.F.R.

§ 36.302(e)(ii).

When Laufer visited Petitioner’s

website for the Coast Village Inn and Cottages in

Wells, Maine, and discovered that it lacked the

information to which she was legally entitled as a

person with a disability, she filed to suit to remedy this

discrimination, including the “humiliation and

frustration” she suffered from “being treated like a

second-class citizen.” J.A. 19a.

This asserted harm has a “close relationship,”

TransUnion, 141 S. Ct. at 2200 (quoting Spokeo, 578

U.S. at 340-41), to the dignitary harms that, at

common law, gave rise to private actions for

infringement of the duty to entertain imposed on

innkeepers, common carriers, and other public-facing

businesses.

Indeed, this Court has previously

recognized that public accommodations laws like the

ADA are closely “analogous” to this common-law duty.

Curtis v. Loether, 415 U.S. 189, 195-96 & n.10 (1974);

see Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.

of Bos., 515 U.S. 557, 571 (1995) (discussing

Massachusetts

public

accommodations

law’s

“venerable history”); Civil Rights Cases, 109 U.S. 3, 40

(1883) (Harlan, J., dissenting) (characterizing the

“innkeepers” provision of the Civil Rights Act of 1875

as rooted in the common-law duty to entertain). And

more importantly, not only do public accommodations

laws grow out of the duty imposed by the common law

on innkeepers and other public businesses, but the

harms that formed the basis of suits for breach of that

duty are nearly identical to the stigmatic injury that

Laufer asserts here.

The duty to entertain, which traces to the earliest

period of the common law, was premised on the notion

that innkeepers and common carriers engage in a

“public profession,” 1 C.G. Addison, A Treatise on the

Law of Torts 748 (1876), requiring them to comply with

certain obligations “which do not exist in the case of

business of a purely private character,” Thomas M.

Cooley, A Treatise on the Law of Torts or the Wrongs

that Arise Independent of Contract 282 (1879). The

public nature of the duty meant that its breach was

prosecutable by “indictment at common law,” but it

also created a private right to non-discriminatory

treatment that entitled private individuals to file suits

“for the recovery of any damages that may have been

sustained” by a breach. 1 Addison, supra, at 748

(emphasis added). To protect this private right,

plaintiffs at common law regularly filed tort suits

premised on emotional and dignitary injuries they

suffered from being excluded from a place of public

accommodation.

Common-law courts did not question the veracity

of those harms for purposes of ascertaining whether

plaintiffs had cognizable injuries that could form the

basis of their lawsuits. Yet at bottom, that is what

Petitioner invites this Court to do—to hold that the

discrimination and stigmatic harm that Laufer

suffered cannot be real simply because her interest in

Petitioner’s website was motivated by her goal of

ensuring Petitioner’s compliance with the ADA and its

implementing regulations rather than a planned visit

to the hotel. This Court should reject that invitation,

particularly at the pleading stage of this case. Because

Laufer alleges “a stigmatic injury suffered as a direct

result of having personally been denied equal

treatment” when she visited Petitioner’s website,

Allen v. Wright, 468 U.S. 737, 755 (1984), her injury is

both concrete and particularized.

Petitioner and its amici also assert that Laufer’s

litigation

undermines

executive

enforcement

authority and thus runs afoul of the separation of

powers principle that drives standing doctrine. But

this, too, is wrong as a matter of “history and

tradition.” Since the Founding of this nation, private

individuals have filed suits to enforce laws that protect

the public welfare, and there is no evidence from that

period of anyone—members of Congress, this Court, or

the executive branch—questioning such suits for

infringing on executive power or violating separation

of powers principles more broadly.

Private enforcement lawsuits designed to

supplement the government’s efforts to protect the

public welfare have existed for hundreds of years. For

instance, the qui tam action—which unlike the ADA,

does not even require private plaintiffs to assert their

own injuries—dates all the way back to thirteenthcentury England. Though born at common law as a

means of gaining entry to the esteemed royal courts,

qui tam suits promptly evolved into creatures of

statute as Parliament recognized the utility of

harnessing private citizens to aid in enforcing the law.

By the time of the Founding, qui tam actions were well

established, and early state legislatures and the first

Congresses passed countless laws authorizing qui tam

prosecutions or containing “informer” provisions

designed to incentivize private citizens to aid the

government in ensuring that laws protecting the

public welfare were obeyed.

Two early American qui tam statutes are

particularly relevant here. First, in 1789, the First

Congress passed a law that required United States

customs officers to publicly display a table of customs

rates, fees, and duties at all ports. The law contained

a qui tam provision incentivizing private individuals

to sue customs officers even when the private

individuals’ sole injury (though Congress did not even

use that term) was deprivation of that legally required

information. In other words, these individuals who,

like Laufer, were deprived of information—but who,

unlike Laufer, did not even claim any associated

emotional or stigmatic injury—were encouraged to file

suit to enforce a public-welfare law. What is more, the

informers’ suits targeted the negligence of customs

officers—technically, executive officials themselves—

yet apparently no one objected that these lawsuits

infringed on executive power.

Second, in 1794, the Third Congress passed a law

to limit the United States’ involvement in the

international slave trade that authorized both federal

law enforcement officers and private citizens who

discovered violations to bring suit. Frustrated with

the federal government’s slow mobilization around the

law, prominent abolition societies—which in many

respects, functioned as the historical predecessors to

testers and tester organizations—sent out their

members to serve as informers and hired lawyers

sympathetic to their cause to develop litigation against

the law’s violators. These societies filed the first

successful prosecutions under the law, yet no one

objected to their litigation as violating Article III’s

case-or-controversy requirement or infringing on

executive enforcement discretion. To the contrary, as

one scholar has meticulously documented, key

“constitutional

actors—presidents,

legislators,

executive officials, federal judges—embraced [these]

private informers.” James E. Pfander, Public Law

Litigation in Eighteenth Century America: Diffuse Law

Enforcement for a Partisan World, 92 Fordham L. Rev.

(forthcoming

2023)

(manuscript

4-5),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=

4424076. Enforcement of the 1794 statute thus

demonstrates “early republic reliance on private

enforcement of public laws.” Id. at 4.

In sum, “history and tradition” provide no reason

to dismiss this case for lack of standing. Deborah

Laufer’s stigmatic injury has a close common-law

analogue, making it sufficiently concrete under this

Court’s precedents, and her role as a tester does

nothing to change that fact or otherwise undermine

the separation of powers principles animating this

Court’s standing doctrine.

ARGUMENT

I. Laufer’s Asserted Harm Is Closely Analogous

to the Humiliation and Sense of Exclusion

that Formed the Basis for Common-Law

Suits for Breach of the Innkeeper’s Duty to

Entertain.

A. The history of the innkeeper’s duty to entertain

“may be traced to the earliest period of the common

law.” Cong. Globe, 42d Cong., 2d Sess. 383 (1872)

(Sen. Sumner) (in debate on the Civil Rights Act of

1875); see Civil Rights Cases, 109 U.S. at 40 (Harlan,

J., dissenting) (similar).

In the Holinshed’s

Chronicles, written during the reign of Queen

Elizabeth I, a chapter titled “Of our Inns and

Thoroughfares” boasted that unlike other nations,

“every man may use his inn as his own house in

England.” 1 Holinshed’s Chronicles of England,

Scotland, and Ireland 414 (1807 ed.). In his revered

Commentaries, Blackstone explained that an

innkeeper or common carrier’s “refus[al] to entertain a

traveller without a very sufficient cause” was an

“indict[able]” offense.

4 William Blackstone,

Commentaries on the Laws of England 167-68 (1769).

This duty carried over to the new Republic, where

prominent treatise-writers described it as a public

duty which vested a private right to be entertained in

the prospective patron.

As one early American

treatise-writer explained, with only narrow exceptions

for travelers unable to pay, those infected with

contagious diseases, and those who presented

themselves in a “disorderly manner or intoxicated,”

any “traveler turned away without cause, either before

or after being received,” could “sustain an action

therefor” in the American common-law courts. Cooley,

supra, at 635. Another explained that breach of the

common law duty to entertain was not just subject to

“indictment at common law,” but also could be

remedied by a private “action for the recovery of . . .

damages.” 1 Addison, supra, at 748; see also Joseph

Story, Commentaries on the Law of Bailments 437 (9th

ed. 1878) (innkeeper is “bound to receive [all guests],

and if upon false pretences he refuses, he is liable to

an action”).

The common-law duty to entertain, and the

coordinate tort action for its breach, arose during a

time when advanced bookings were neither customary

nor possible, meaning travelers “arriving in a place to

spend the night would have been put to a great

inconvenience if the innkeeper, who ran the only inn

in the place, had been at liberty to refuse to admit the

traveller without reasonable ground.”

Paul

Hartmann, Racial and Religious Discrimination by

Innkeepers in U.S.A., 12 Modern L. Rev. 449, 449

(1949). Yet as noted above, the duty’s origin was

broader: it was premised on the deeply rooted principle

that “where-ever any subject takes upon himself a

public trust for the benefit of the rest of his fellow-

subjects, he is eo ipso bound to serve the subject in all

the things that are within the reach and

comprehension of such an office, under pain of an

action against him.” Lane v. Cotton, 12 Mod. 472, 484,

88 Eng. Rep. 1458, 1464 (K.B. 1701) (Holt, C.J.). Thus,

“innkeepers,” as “a sort of public servants,” owed a

fundamental duty to treat all comers with respect. Rex

v. Ivens, 7 Car. & P. 213, 219, 173 Eng. Rep. 94, 96

(N.P. 1835); Emmke v. De Silva, 293 F. 17, 20 (8th Cir.

1923) (an inn “engaged in business of a public nature”

has the “duty of extending to [every person] respectful

and decent treatment”).

Recognizing

the

dignitary

harms—the

fundamental disrespect—wrought by an innkeeper

“say[ing] to one, you shall come into my inn, and to

another you shall not,” Ivens, 7 Car. & P. at 219,

breach of the common law duty to entertain allowed

“for the recovery of any damages that may have been

sustained by [the] refusal,” 1 Addison, supra, at 748

(emphasis added), including intangible harms like

stigmatic and emotional injuries. The common-law

courts’ recognition of these intensely personal harms

is consistent with their treatment of the right to be

entertained as a private “civil or political right[]”—a

right held by each individual not to be subject to a

carrier or innkeeper’s discrimination. Cooley, supra,

at 282-83.

Accordingly, early American courts adjudicating

cases for breach of the common law duty to entertain

repeatedly characterized the harm forming the basis

of these lawsuits as including the emotional harm

stemming from the breach, particularly (though not

exclusively) for plaintiffs excluded on the basis of

immutable characteristics like disability and race. For

instance, in Jackson v. Virginia Hot Springs Co., 213

F. 969 (4th Cir. 1914), the court described the

plaintiff’s injury from being turned away from an inn

and its hot springs, along with his disabled wife, as

consisting of both the resulting need “to go and travel

a distance of a mile, in cold and inclement weather, in

order to procure lodgings and entertainment

elsewhere,” and the fact that “the plaintiff was

mortified, humiliated, discomfited, and distressed” by

the inn’s refusal to entertain him and his family. Id.

at 972. Both types of harm—not just the pecuniary

damages incurred from having to seek other lodging—

formed the basis of the plaintiff’s suit. See also, e.g.,

Hoover v. Haynes, 91 N.W. 392, 394 (Neb. 1902)

(plaintiff denied entry to hotel on basis of race could

recover for “mental pain and anguish” and “disgrace

and humiliation” if “evidence [were] introduced to

sustain a verdict for damages on that account”);

Hoover v. Haynes, 93 N.W. 732, 733 (Neb. 1903)

(reiterating on motion for rehearing that evidence of

“injury to feelings, and mental pain” could be awarded

if “warranted by the evidence”); Aaron v. Ward, 136

A.D. 818, 823 (N.Y. App. Div. 1910) (analogizing to

duty of innkeepers, woman denied entry to bathhouse

on basis of Jewish ancestry could recover for “indignity

and disgrace”), aff’d 96 N.E. 736 (N.Y. 1911).

Cases involving common carriers similarly

allowed recovery for stigmatic and emotional injuries

alongside

the

cost

seeking

alternative

transportation. Case after case in the late nineteenth

century upheld jury instructions to that effect. See,

e.g., Quigley v. Cent. Pac. R. Co., 20 F. Cas. 138 (C.C.D.

Nev. 1878) (upholding jury charge that “the plaintiff

was entitled to recover . . . the price of a second ticket,

loss of time, and expenses of staying over, and that [the

jurors] were entitled to take into consideration the

indignity” (emphasis added)); Smith v. Pittsburg, Ft.

Wayne & Chi. Ry. Co., 23 Ohio St. 10, 17 (1872)

(upholding jury instruction allowing recovery for “the

injury to the feelings” of the plaintiff stemming from

his expulsion from a rail car); Louisville & N.R. Co. v.

Frizzle, 108 So. 615, 616 (Ala. Ct. App. 1926) (“In this

case plaintiff had a right to recover, not only the

additional cost and expense necessary to procure other

Pullman tickets . . . , but also, under the sound

discretion of the jury, actual damages for mental

suffering and humiliation caused by his wrongful

ejection or rejection.”).

In one prominent case, the Supreme Court of

Illinois upheld a lower court’s charge that a woman

excluded from a train car on the basis of race could

recover “in addition to the actual damages, something

for the indignity, vexation and disgrace” to which she

was subjected. Chi. & Nw. Ry. Co. v. Williams, 55 Ill.

185, 190 (1870) (emphasis added). The court explained

that “if the party in such case is confined to the actual

pecuniary damages sustained, it would, most often, be

no compensation at all, above nominal damages, and

no salutary effect would be produced on the wrong doer

by such a verdict.” Id. In other words, even if a

plaintiff ultimately suffered no tangible inconvenience

from being denied rail services, her dignitary injury

still constituted a cognizable harm that could give rise

to a private tort suit. Indeed, the court seemed to

encourage such suits for their deterrent effect on bad

actors.

B. The dignitary harm described in these cases

plainly constitutes “a close historical or common-law

analogue” to Deborah Laufer’s stigmatic injury.

TransUnion, 141 S. Ct. at 2204. Just as, for example,

the plaintiff in Jackson felt “humiliated” and

“distressed” by the inn’s refusal to accommodate him

and his disabled wife, 213 F. at 972, Laufer “suffered

humiliation and frustration at being treated like a

second class citizen” because of her disability and at

“being denied equal access and benefits to the goods,

facilities, accommodations and services” provided by

Petitioner, J.A. 18a-19a. Just as, for example, the

Black plaintiff excluded in Hoover claimed feelings of

“disgrace” and “indignity” at being “refused . . . access”

to the defendant’s hotel, 91 N.W. at 393-94, Laufer felt

a “sense of isolation and segregation” from being

“deprive[d]” of “the full and equal enjoyment of the

goods,

services,

facilities,

privileges

and/or

accommodations available to the general public,” J.A.

10a.

Notably, these sorts of harms have been

repeatedly recognized as real injuries by this Court.

See, e.g., Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241, 250 (1964) (citing “the deprivation of

personal dignity that surely accompanies denials of

equal access to public establishments”); id. at 292

(Goldberg, J., concurring) (“Discrimination . . . is the

humiliation, frustration, and embarrassment that a

person must surely feel when he is told that he is

unacceptable as a member of the public.”); Roberts v.

U.S. Jaycees, 468 U.S. 609, 625 (1984) (describing the

“stigmatizing injury” arising out of “discrimination in

the allocation of publicly available goods and

services”).

True enough, Laufer, unlike the plaintiffs in the

common-law cases, did not actually go to Petitioner’s

hotel and receive a rejection face-to-face; rather, she

was excluded when she discovered that Petitioner’s

website did not provide accessibility information to

which she, as a disabled person, was legally entitled.

But this distinction is irrelevant for purposes of the

standing inquiry: the fact that Laufer was not singled

out for mistreatment, but instead was mistreated on

the basis of a policy excluding all those within her

protected class, does not make her dignitary injury any

less real. Cf. Hoover, 93 N.W. at 733 (dignitary harms

stemming from discriminatory exclusion are not

“imaginary injuries” although “[o]rdinarily no direct

proof can be had” as to them).

This is consistent with the early American

common-law cases—for purposes of ascertaining

whether plaintiffs had cognizable claims, courts

focused on the feelings alleged by the excluded

plaintiffs rather than the relative validity of those

feelings under the given circumstances, particularly at

the pleading stage. For instance, in Jackson, the court

did not suggest that the plaintiff’s feelings of

humiliation were not merited or could not form the

basis for a lawsuit just because he and his disabled

wife were turned away from the inn in the middle of

the night without any witnesses to their exclusion and

mortification. 213 F. at 970. In Hoover, the Court

made clear that the issue of the validity of “injury to

feelings” is a matter for the jury in calculating the

appropriate damages. 93 N.W. at 733. And in Chicago

& Northwestern Railway, the Supreme Court of

Illinois clarified that although the plaintiff faced

exclusion stemming from a railway employee’s

personal discriminatory animus, a blanket policy of a

railway to “exclude colored persons from [a] car” that

was “justified on the ground of mere prejudice” would

provide just as much basis for a tort suit as the

employee’s personal animus. 55 Ill. at 188-89.

It is also irrelevant for purposes of the standing

inquiry set forth by this Court in TransUnion whether

the plaintiffs in these common-law cases actually

sought to make use of the defendant inn or common

carrier, unlike Laufer who admits that she never

intended to stay at Petitioner’s hotel. Even if the

common-law duty to entertain were limited only to

those seeking to be bona fide guests of an inn, but see

Respondent Br. 42 (citing Markham v. Brown, 8 N.H.

523, 523 (1837)), that still would say nothing about the

degree to which Laufer’s injury is analogous to the

injuries suffered by common-law plaintiffs who

complained of exclusion from an inn or common

carrier.

Put another way, what matters for purposes of this

Court’s standing inquiry is not the preciseness of the

match between the duties imposed on innkeepers at

common law and those imposed by the ADA; rather,

what matters is the similarity of plaintiffs’ harms

arising out of a hotel’s breach of either duty. This

makes sense, given that public accommodations laws

substantially “broaden[ed]” the common-law duty to

entertain. Hurley, 515 U.S. at 572.

Here, those harms are nearly identical: Laufer,

like the common-law plaintiffs described above,

suffered feelings of exclusion and stigma when

Petitioner failed to provide her, a disabled person, with

accessibility information to which she is entitled under

the ADA and its implementing regulations. Cf.

TransUnion, 141 S. Ct. at 2204 (harms must be

“analog[ous]” but an “exact duplicate” is “not

require[d]”). Under the test this Court set forth in

TransUnion, that is sufficient to render Laufer’s injury

judicially cognizable—an injury creates a “case” or

“controversy” when “a plaintiff’s asserted harm has a

‘close relationship’ to a harm traditionally recognized

as providing a basis for a lawsuit in American courts.”

Id. at 2209 (emphasis added).

* * *

In sum, Deborah Laufer has alleged a deeply

personal injury with a close common-law analogue,

which renders her harm judicially cognizable under

this Court’s precedents. That, on its own, provides

sufficient grounds to reject Petitioners’ arguments

that Laufer’s suit infringes on executive power or

unduly expands judicial authority. As one member of

this Court has put it, “it is only when ‘unharmed

plaintiffs’ are before the Court that Article III

forecloses interference with the ‘discretion of the

Executive Branch.’” Texas, 143 S. Ct. at 1999 (Alito,

J., dissenting) (quoting TransUnion, 141 S. Ct. at

2207). That should end the matter.

But even if this Court were to discount Laufer’s

allegation of deeply personal stigmatic injury and

indulge the characterization of Laufer as a “private

attorney general” focused on protecting other people’s

rights, e.g., Ctr. for Const. Responsibility Br. 2, there

still would be no historical basis for concluding that

her suit runs afoul of Article II or Article III, as the

next Section discusses.

II. Since Our Nation’s Founding, Private

Citizens Have Taken Active Roles in

Enforcing Laws Promoting the Public

Welfare Without Constitutional Objection.

A. As this Court has acknowledged, there is a

“long tradition” in this country, Vt. Agency of Nat. Res.

v. United States ex rel. Stevens, 529 U.S. 765, 774

(2000), of private citizens filing suits to aid the

government in enforcement of laws to “vindicat[e] . . .

polic[ies] that Congress considered of the highest

priority,” Newman v. Piggie Park Enters., Inc., 390

U.S. 400, 402 (1968) (per curiam). This historical

pedigree is “particularly relevant to the constitutional

standing inquiry,” Vt. Agency, 529 U.S. at 774, as

“matters that were the traditional concern of the

courts at Westminster” are “the staple of judicial

business,” Coleman v. Miller, 307 U.S. 433, 460 (1939)

(opinion of Frankfurter, J.).

These private enforcement lawsuits first emerged

through the qui tam action, which gained prominence

in England during the thirteenth century. Vt. Agency,

529 U.S. at 774. Short for “qui tam pro domino rege

quam pro seipso,” which literally means “he who as

much for the king as for himself,” qui tam actions

originated at common law, where they were used as a

means to gain access to the esteemed royal courts. 3

William Blackstone, Commentaries on the Laws of

England 160 (1768). Because those courts typically

only heard matters involving the king, see F.C.

Milsom, Trespass from Henry III to Edward III, Part

III: More Special Writs and Conclusions, 74 L.Q. Rev.

561, 585 (1958), commoners would allege royal

interests in addition to their own private interests to

“obtain a common law remedy . . . for a private wrong

that also affected the king[],” Note, The History and

Development of Qui Tam, 1972 Wash. U. L.Q. 81, 85

(1972); see, e.g., Prior of Lewes v. Master Roger de Holt

(1300), reprinted in Select Cases in the Exchequer of

Pleas, 48 Selden Society 198 (1931) (asserting king’s

interest in lands held under royal tenure); Rex et John

Gobbard v. Hanville (undated), reprinted in 48 Selden

Society, supra, at 215 (asserting interest in safety of

the king’s men).

By the start of the fourteenth century, due to both

the expansion of the royal courts’ jurisdiction to cover

all legal disputes (rendering unnecessary the

technique of asserting royal interests to get into a

preferred forum), as well as Parliament’s enactment of

a slew of new laws expressly providing for qui tam

suits, the common-law qui tam action was largely

displaced by statutory qui tam actions. Vt. Agency, 529

U.S. at 775. These new statutes took a variety of

forms. Many permitted injured parties to sue to

vindicate their own interests as well as the Crown’s.

See, e.g., A Remedy for Him Who Is Wrongfully

Pursued in Admiralty Court, 2 Hen. 4, c.11 (1400).

Others permitted informers to obtain a bounty for

their information even in the absence of an injury, see,

e.g., Statute Prohibiting the Sale of Wares After Close

of Fair, 5 Edw. 3, c.5 § 6 (1331), under the rationale

that “every offence, for which such action is brought, is

supposed to be a general grievance to every body,” 2

William Hawkins, A Treatise of the Pleas of the Crown

380 (1787); see 3 Blackstone, supra, at 160 (“such

actions . . . are given to the people in general”).

Regardless of form, Parliament viewed qui tam actions

as critical tools for effectuating its will, as they “vastly

expanded law enforcement resources and greatly

increased the likelihood that [a violator of the law]

would be caught, all at no cost to the government apart

from the contingent promise of [a portion] of any

penalties recovered.” Randy Beck, Qui Tam Litigation

Against

Government

Officials:

Constitutional

Implications of a Neglected History, 93 Notre Dame L.

Rev. 1235, 1255 (2018). Law enforcement officials

welcomed this assistance. Id.

This notion of the vital role of private citizens in

government law enforcement made its way across the

Atlantic, where “[q]ui tam actions appear to have been

as prevalent . . . as in England, at least in the period

immediately before and after the framing of the

Constitution,” Vt. Agency, 529 U.S. at 776; see Marvin

v. Trout, 199 U.S. 212, 225 (1905) (such actions “have

been in existence . . . in this country since the

foundation of our government”). Legislatures in the

new Republic took various approaches to crafting qui

tam statutes. Initially, many states adopted English

qui tam statutes wholesale or with minor

modifications. See, e.g., New Jersey Gaming Law, Act

of Feb. 8, 1797, §§ IV, V (1800), N.J. Laws 224-25

(repealed 1847) (adopted from the English Gaming

Law, 9 Anne, c.14, § 2 (1710)); State v. Bishop, 7 Conn.

181, 185 (1828) (describing the Miller’s Toll statute in

colonial Connecticut, taken directly from England).

The first Congresses, however, expanded upon that

approach, enacting both statutes with British origins

and wholly original ones, largely out of “fear[] that

exclusive reliance upon federal law enforcement

machinery would not suffice to enforce the penal laws

of the nation.” Harold J. Krent, Executive Control over

Criminal Law Enforcement: Some Lessons from

History, 38 Am. U. L. Rev. 275, 303 (1989).

Thus, it was not long before American laws

enlisting citizens in public law enforcement covered a

wide range of subjects, “including those criminalizing

the import of liquor without paying duties, prohibiting

certain trade with Indian tribes, criminalizing failure

to comply with certain postal requirements, and

criminalizing slave trade with foreign nations.” Cass

R. Sunstein, What’s Standing After Lujan? Of Citizen

Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163,

175 (1992) (footnotes omitted).3

Such statutes grew so common in the new

Republic that by the turn of the nineteenth century, as

Chief Justice Marshall noted, “[a]lmost every fine or

forfeiture under a penal statute, [could] be recovered

3 See also, e.g., Act of Mar. 1, 1790, § 3, 1 Stat. 101, 102

(regarding filing of census forms); Act of July 20, 1790, § 1, 1 Stat.

131, 131 (regarding contracts with mariners and seamen); id. § 4,

1 Stat. at 133 (regarding harboring runaway seamen); Act of July

22, 1790, § 3, 1 Stat. 137, 138 (regarding trade with Indians); Act

of Feb. 25, 1791, § 8, 1 Stat. 191, 196 (regarding the Bank Act);

Act of Mar. 3, 1791, § 44, 1 Stat. 199, 209 (regarding the Distilled

Spirits Act); Act of Feb. 20, 1792, § 25, 1 Stat. 232, 239 (regarding

the Post Office Act); Act of May 19, 1796, § 18, 1 Stat. 469, 474

(regarding trade with Indian tribes).

by an action of debt as well as by information.” Adams

v. Woods, 6 U.S. 336, 341 (1805); see also Dan L.

Hargrove, Soldiers of Qui Tam Fortune, 34 Pub. Cont.

L.J. 45, 52 (2004) (“Chief Justice John Marshall, like

other early federal judges to rule on such cases, blessed

[them].” (citing Adams, 6 U.S. at 336; United States v.

Simms, 5 U.S. 252 (1803); Ketland, qui tam v. The

Cassius, 2 U.S. 365 (C.C.D. Pa. 1796); Evans, qui tam

v. Bollen, 4 U.S. 342 (C.C.D. Pa. 1800)).

As in England, many early American statutes also

provided financial incentives that encouraged citizens

to “don the mantle of a public prosecutor,” Krent,

supra, at 297, 300, and act as “informers” or “relators.”

These statutes were liberally construed, see, e.g.,

Adams, 6 U.S. at 340-41 (interpreting statute

providing award for informer as authorizing him to

sue); United States ex rel. Marcus v. Hess, 317 U.S.

537, 541 n.4 (1943) (describing the Founding-era rule

that “[s]tatutes providing for a reward to informers

which do not specifically either authorize or forbid the

informer to institute the action are construed to

authorize him to sue”), and this Court has recognized

their powerful deterrent effects, see Marvin, 199 U.S.

at 225 (explaining, with regard to a law meant “to

discourage and, if possible, prevent gambling,” that

the law offered informers a “right to recover the

penalty or forfeiture” from a violation “for the purpose

of suppressing the evil in the interest of the public

morals and welfare”).

Congress also passed these laws to enlist the

assistance of private parties who were in the best

position to discover illegal behavior. For instance, the

1863 False Claims Act had the principal goal of

“stopping the massive frauds perpetrated by large

contractors during the Civil War.” United States v.

Bornstein, 423 U.S. 303, 309 (1976). Fundamentally,

“[t]he idea behind the provision was that individuals

within the entity defrauding the government would

have superior knowledge of fraud over that of the

Department of Justice.” Gretchen L. Forney, Qui Tam

Suits: Defining the Rights and Roles of the Government

and the Relator Under the False Claims Act, 82 Minn.

L. Rev. 1357, 1364 (1998). This law did not require

private individuals to assert their own injuries; rather,

as this Court has held, it allowed private individuals

to vindicate the “United States’ injury in fact.” Vt.

Agency, 529 U.S. at 774.

B. At the same time, other early qui tam statutes

allowed informers who claimed no personal injury to

vindicate the public interest even against United

States officers without “borrowing” any injury from the

federal government. For instance, a law known as An

Act to Regulate the Collection of the Duties Imposed

by Law on the Tonnage of Ships or Vessels, and on

Goods, Wares and Merchandises Imported into the

United States, ch. 5, 1 Stat. 29 (1789) (“1789 Act”),

contained a qui tam provision authorizing

“informer[s]” to sue for forfeiture of one hundred

dollars against any United States customs officer who

failed to “constantly [keep] in some public and

conspicuous place of his office, a fair table of the rates

of fees, and duties demandable by law,” id. § 29, 1 Stat.

at 45.

Two aspects of this law deserve special attention

here. First, much like the ADA regulation Laufer

seeks to enforce, the 1789 Act required the posting of

specific information for the benefit of the public good,

yet to ensure compliance, it relied primarily on private

enforcement by informers who discovered the failure

to post. Id. Second, the fact that the informer

provision operated against government officers

themselves belies the notion that private enforcement

of laws serving the public welfare infringes on

executive authority. See Beck, supra, at 1294-95

(suggesting that qui tam enforcement against customs

officers may have been prompted by the sheer number

of such officers, making presidential oversight of their

behavior challenging). Or at the very least, it makes

clear that the first Congress did not think so. See, e.g.,

Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020)

(views

the

First

Congress

“provide[]

contemporaneous and weighty evidence of the

Constitution’s meaning” (quoting Bowsher v. Synar,

478 U.S. 714, 723 (1986)).

The early American experience with another

eighteenth-century federal informer law—this one

passed by the Third Congress to limit the United

States’ participation in the international slave trade—

also merits special attention here for “cast[ing] serious

doubt on the claim that Article II was understood at

the time to vest the executive with an exclusive

enforcement discretion that forecloses Congress from

relying on private informers to play a supplemental or

independent role in law enforcement.” Pfander, supra,

at 22. The Act of March 22, 1794, ch. 11, 1 Stat. 347

(“1794 Act”), which was modeled on several New

England statutes preceding it, barred the modification

of vessels in United States ports for the purpose of

transporting enslaved people and imposed a fine of

two-hundred dollars for every person taken aboard a

ship to be transported into slavery. Id. The law

provided that fines recovered would be divided

between the United States and “him or her who shall

sue for and prosecute the same,” id. § 2, 1 Stat. at 349,

allowing both federal law enforcement officers and

private citizens—including the well-known abolition

societies proliferating at the time—to bring suit to

enforce it against private merchants.

supra, at 12.

Id.; Pfander,

In many respects, those abolition societies

functioned as the historical predecessors to testers.

They sent out their members to act as informers and

ultimately serve as plaintiffs, secured skilled lawyers

sympathetic to their cause to serve as counsel, and

financed the litigation themselves. Pfander, supra, at

7, 13. Indeed, members of the Providence Abolition

Society were the first to bring successful prosecutions

under the 1794 Act, as they grew frustrated with the

federal government’s slow pace of initiating its own

prosecutions. Charles Rappleye, Sons of Providence:

The Brown Brothers, the Slave Trade, and the

American Revolution 305-06 (2006).

The 1794 Act “reflects a remarkable consensus” by

all three branches of government “as to the legitimacy

of no-injury private informer litigation.” Pfander,

supra, at 12. No member of Congress raised Article II

or Article III concerns when the bill was debated, nor

did President Washington threaten to veto it in the

name of preserving his branch’s power. Id. Federal

trial courts dutifully enforced the statute when cases

filed by private litigants reached them, ordering the

condemnation of implicated vessels, e.g., id. at 13

(describing Rhode Island federal court order for

condemnation and sale of the Hope in case brought by

abolition society), and allowing juries to return

considerable awards against private merchants even

in the absence of federal law enforcement involvement

in the litigation, e.g., id. at 15 (describing a New York

federal case involving the Peggy brig that ended in a

$16,000 jury verdict for the abolition-society plaintiff).

And when forfeiture appeals eventually made it to this

Court, it never questioned the underlying cases as

violating Article II or Article III. See, e.g., The Merino,

22 U.S. 391 (1824) (upholding forfeiture of vessel

under the 1794 Act); The Plattsburgh, 23 U.S. 133, 145

(1825) (same); The Emily and Caroline, 22 U.S. 381

(1824) (same).

Stepping back, it is clear that despite the ubiquity

of private parties enforcing laws that promoted the

public welfare at the Founding—and of cases

analyzing and applying those laws—there is simply no

record of early American jurists suggesting that these

enforcement actions undermined or were at odds with

the Constitution’s separation of powers. Indeed, there

is simply “no evidence that anyone at the time of the

framing” believed that private enforcement of public

laws “produced a constitutional doubt.” Sunstein,

supra, at 176; see Stephen L. Winter, The Metaphor of

Standing and the Problem of Self-Governance, 40 Stan.

L. Rev. 1371, 1409 (1988) (these suits “were not viewed

as raising constitutional problems”).

Thus,

“[w]hatever one might say about its wisdom as a

matter of policy,” Pfander, supra, at 3, the argument

that tester litigation infringes on executive power by

functioning as private enforcement of public laws is

wholly without merit as a matter of constitutional text

and history.

* * *

This Court has held that “[i]n determining

whether an intangible harm constitutes injury in fact,

both history and the judgment of Congress play

important roles.” Spokeo, 578 U.S. at 340. Here,

history plays an important role in two respects: it

provides a close common-law analogue for Deborah

Laufer’s asserted harm, and it belies the notion that

testers who engage in private enforcement of laws

promoting the public welfare infringe on executive

power or undermine Article III’s “case” or

“controversy” requirement.

CONCLUSION

This Court should vacate the judgment below in

light of Respondent’s dismissal of her complaint with

prejudice. If this Court reaches the standing issue in

the question presented, it should affirm the judgment

of the court below.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 9, 2023

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.