Amicus Curiae Brief — Milan Kiser, et al., Petitioners v. Chris Langer

No. 23-742

IN THE

Supreme Court of the United States

MILAN KISER AND DIANA KISER,

Petitioners,

v.

CHRIS LANGER,

Respondent.

ON A PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Counsel for Amicus Curiae

Benjamin G. Robbins

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

333 Washington Street, Suite 850

Boston, MA 02108

(617) 695-3660

brobbins@newenglandlegal.org

February 1, 2024

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT..................................... 2

ARGUMENT ............................................................... 4

I.

THIS COURT SHOULD GRANT

CERTIORARI TO DECIDE WHETHER

A TESTER UNDER THE AMERICANS

WITH DISABILITIES ACT HAS

ARTICLE III STANDING. ............................... 4

A.

This Case Is A Strong Vehicle

For Deciding The Issue, Because

The District Court Made The

Unassailable

Evidentiary

Finding That The Respondent’s

Sole Motivation Was To Visit The

Petitioners’ Property As A

Tester, And The Ninth Circuit

Held That, As A Tester, The

Respondent Had Article III

Standing. ................................................ 4

B.

An ADA Tester Cannot Establish

A Concrete Injury Required

Under Article III Because He Is

Not Personally Harmed By Any

Unlawful Structural Barriers To

Entry At The Place Of Public

Accommodation

That

He

Observes For Potential ADA

Violations. .............................................. 9

CONCLUSION .......................................................... 14

ii

TABLE OF AUTHORITIES

CASES

Acheson Hotels, LLC v. Laufer,

601 U.S. 1, 144 S. Ct. 18 (2023) ..............2, 4, 11, 13

Allen v. Wright,

468 U.S. 737 (1984) .............................................. 12

Amadeo v. Zant,

486 U.S. 214 (1988) ................................................ 8

Anderson v. City of Bessemer City, N.C.,

470 U.S. 564 (1985) ................................................ 8

Bank of Am. Corp. v. City of Miami, Fla.,

581 U.S. 189 (2017) .............................................. 10

Casillas v. Madison Ave. Assocs., Inc.,

926 F.3d 329 (7th Cir. 2019) .......................... 10, 12

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990) ................................................ 8

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) ...................................... 3, 9, 11

House v. Bell,

547 U.S. 518 (2006) ................................................ 7

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .............................................. 12

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ...............................9, 10, 12, 13

iii

United States v. Hansen, 599 U.S. 762 (2023) ........ 11

STATUTES

42 U.S.C. § 2000a-3(a) ............................................. 10

42 U.S.C. § 12101 et seq. ........................................ 2, 5

42 U.S.C. § 12182(a)................................................. 11

42 U.S.C. § 12182(b)................................................. 11

42 U.S.C. § 12182(b)(1)(A)(i) .................................... 11

42 U.S.C. § 12182(b)(1)(A)(iv) .................................. 11

42 U.S.C. § 12188(a)(1) ............................................ 10

42 U.S.C. § 12188(b)(1)(A)(i) .................................... 13

42 U.S.C. § 12188(b)(1)(B)(i) .................................... 13

42 U.S.C. § 12188(b)(1)(B)(ii) ................................... 13

CONSTITUTIONAL AND OTHER AUTHORITIES

U.S. Const., Art. II, § 3 ............................................ 13

U.S. Const. Art. III, § 2 ............................ 2-5, 7-12, 14

Fed. R. Civ. P. 52 ........................................................ 2

Fed. R. Civ. P. 52(a)(6) ............................................... 6

iv

INTEREST OF AMICUS CURIAE

Amicus

curiae

New

England

Legal

Foundation (NELF) is a nonprofit, public interest

law firm, incorporated in Massachusetts in 1977 and

headquartered in Boston.1 NELF’s membership

consists of corporations, law firms, individuals, and

others who believe in its mission of promoting

inclusive economic growth in New England,

protecting the free enterprise system, and defending

economic rights. NELF’s members and supporters

include a cross-section of large and small businesses

and other organizations from all parts of the

Commonwealth, New England, and the United

States.

NELF is committed to the enforcement of

Article III’s restriction of the Federal Judiciary’s

subject matter jurisdiction to “cases” and

“controversies,” under which the plaintiff must

establish a concrete harm.

Adherence to this

requirement of Article III standing preserves the

Constitution’s separation of powers, by preventing

federal courts from engaging in the general

enforcement of the law. NELF is also committed to

the doctrine of statutory standing, under which a

court should decide whether Congress has

authorized the plaintiff’s claim.

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

counsel for a party authored NELF’s amicus brief, in whole or

in part, and that no person or entity, other than amicus, made

a monetary contribution to the preparation or submission of the

brief.

For these and other reasons discussed below,

NELF believes that its brief will assist the Court in

deciding whether to grant certiorari in this case, to

decide whether an individual has Article III

standing to sue as a tester of a place of public

accommodation, under the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et

seq.

SUMMARY OF ARGUMENT

In Acheson Hotels, LLC v. Laufer, 601 U.S. 1,

144 S. Ct. 18 (2023), this Court was poised to decide

whether an individual has Article III standing to sue

a place of public accommodation for alleged

noncompliance with the ADA, when she has no

intention to visit that place as a patron. However,

an unanticipated turn of events rendered that case

moot. This case now before the Court presents the

same issue of ADA tester standing. Accordingly,

certiorari should be granted to decide that issue.

The District Court in this case conducted a

bench trial and made detailed, first-hand findings

from which it rejected the credibility of the

respondent’s testimony that he intended to visit the

petitioners’ commercial property as a customer. The

court concluded that the respondent’s sole

motivation, all along, was to visit the petitioners’

property as an ADA tester.

In a split decision, a panel of the Ninth Circuit

erred when it rejected the trial court’s findings as

“clearly erroneous,” under Fed. R. Civ. P. 52. Based

on this erroneous ruling, the panel majority wrongly

2

concluded that the respondent was a thwarted

customer of the petitioners’ property who established

Article III standing.

In the alternative, the panel majority also

held that the respondent established Article III

standing as an ADA tester. The court concluded

that the respondent’s motivation in returning to the

petitioners’ property was irrelevant under Article III,

according to Ninth Circuit precedent interpreting

Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982).

Therefore, this case is a strong vehicle for

deciding whether an ADA tester has Article III

standing.

The District Court reached the

unassailable conclusion that the respondent only

intended to visit the petitioners’ property as a tester,

and the Ninth Circuit held that, as a tester, the

respondent had Article III standing.

It is difficult to see how an ADA tester could

establish a concrete harm required under Article III,

let alone state a claim recognized under the ADA.

Unlike an individual with disabilities who is a

thwarted customer--Congress’s apparent area of

concern--a tester does not seek to gain access to a

place of public accommodation to enjoy the benefits

of the goods or services offered there. A tester is not

personally harmed by any unlawful structural

barriers to entry. His own ADA rights are not

violated. He is not personally denied equal

treatment by the defendant’s alleged discriminatory

conduct.

3

Instead, a tester is essentially a concerned but

unharmed observer seeking to enforce the ADA

rights of others. An uninjured tester’s attempted

private enforcement of the law exceeds Article III’s

jurisdictional limits.

Such private enforcement of the law would

also intrude upon the Department of Justice’s

exclusive, and politically accountable, power to

enforce the ADA on behalf of the general public,

under Article II. In this case, for example, rather

than suing the petitioners, a Government official

could have simply engaged them in a productive

dialogue to make any necessary changes to their

parking lot.

ARGUMENT

I.

THIS

COURT

SHOULD

GRANT

CERTIORARI TO DECIDE WHETHER A

TESTER UNDER THE AMERICANS

WITH DISABILITIES ACT HAS ARTICLE

III STANDING.

A.

This Case Is A Strong Vehicle For

Deciding The Issue, Because The

District

Court

Made

The

Unassailable Evidentiary Finding

That

The

Respondent’s

Sole

Motivation Was To Visit The

Petitioners’ Property As A Tester,

And The Ninth Circuit Held That,

As A Tester, The Respondent Had

Article III Standing.

In Acheson Hotels, LLC v. Laufer, 601 U.S. 1,

144 S. Ct. 18 (2023), this Court was poised to decide

4

whether an individual has standing, under Article

III of the United States Constitution, to sue a place

of public accommodation for alleged noncompliance

with the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. § 12101 et seq., when the individual

has no intention to visit that place as a patron.2 See

id., 144 S. Ct. at 20-21. However, an unanticipated

turn of events rendered that case moot. See id. at

21-22. This case now before the Court presents the

same issue of ADA tester standing. Accordingly,

certiorari should be granted to decide that issue.

The District Court in this case conducted a

bench trial and made detailed, first-hand findings

from which it rejected the credibility of the

respondent’s testimony that he intended to visit the

petitioners’ commercial property as a customer. See

2 Article III provides, in relevant part:

The judicial Power shall extend to all Cases, in

Law

and

Equity,

arising

under

this

Constitution, the Laws of the United States, and

Treaties made, or which shall be made, under

their Authority;—to all Cases affecting

Ambassadors, other public Ministers and

Consuls;—to all Cases of admiralty and

maritime Jurisdiction;—to Controversies to

which the United States shall be a Party;—to

Controversies between two or more States;—

between a State and Citizens of another

State;—between Citizens of different States;—

between Citizens of the same State claiming

Lands under Grants of different States, and

between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.

U.S. Const. Art. III, § 2 (emphasis added).

5

Appendix (App.) 47-50 (Gordon, J., dissenting from

Ninth Circuit panel decision, discussing District

Court’s evidentiary findings concerning respondent’s

demeanor while testifying, internal inconsistencies

in his testimony, prior inconsistent statements, and

fact that respondent was “serial tester” who had filed

nearly 2,000 ADA public accommodation suits).3 In

fact, the trial court concluded that the respondent’s

sole motivation all along, from his first visit to the

petitioners’ property through the present day, was to

observe the property for alleged ADA violations.

App. 47.

In other words, the District Court

concluded that the respondent was a tester and was

only interested in enforcing the ADA rights of others.

A split panel of the Ninth Circuit erred when

it rejected the District Court’s findings and ultimate

conclusion as “clearly erroneous,” under Fed. R. Civ.

P. 52(a)(6) (“Findings of fact, whether based on oral

3 In particular,

The [District Court] based its adverse credibility

finding both on Langer’s demeanor while

testifying and on the substance of what he

claimed. The court observed that Langer’s

direct testimony ‘was delivered in a rote fashion’

and ‘without noticeable reflection.’

When

Langer was cross-examined, the court noted, his

counsel ‘appeared to be visibly coaching’ him,

and Langer ‘peppered his testimony with

professions of uncertainty, lack of knowledge, or

an inability to recall.’ As to the substance of

Langer’s testimony, the court noted that it was

flatly contradictory as to critical points.

App. 47.

6

or other evidence, must not be set aside unless

clearly erroneous, and the reviewing court must give

due regard to the trial court’s opportunity to judge

the witnesses’ credibility.”) (emphasis added).4

Based on that erroneous ruling, the panel majority

wrongly concluded that the respondent was a

thwarted customer of the petitioners’ property and,

therefore, had Article III standing. App. 27.

The Ninth Circuit should have deferred to the

trial court’s evidentiary findings, which were based

primarily on that court’s direct observation of the

respondent’s live testimony. Indeed,

When

findings

are

based

on

determinations regarding the credibility

of witnesses, Rule 52(a) demands even

greater deference to the trial court’s

findings; for only the trial judge can be

4 The panel majority’s stated reasons for rejecting the District

Court’s findings are especially troubling. “We reject the district

court’s ‘ultimate determination’ regarding Langer’s credibility

because it relied on Langer’s motivation for going to the

Lobster Shop and his ADA litigation history.” App. 17.

Contrary to the panel majority’s view, the respondent’s

motivation for visiting the property--i.e., as a tester or as a

customer--is essential to deciding whether he has suffered a

concrete harm under Article III, as amicus discusses below.

Moreover, the District Court had the broad discretion to draw

reasonable inferences from the respondent’s status as a serial

ADA litigant when evaluating the credibility of his testimony

that he intended to return to the petitioners’ property as a

customer.

See House v. Bell, 547 U.S. 518, 559 (2006)

(“[C]learly-erroneous standard applies even when the district

court’s findings do not rest on credibility determinations, but

are based instead on physical or documentary evidence or

inferences from other facts.”) (cleaned up) (emphasis added).

7

aware of the variations in demeanor

and tone of voice that bear so heavily on

the listener’s understanding of and

belief in what is said.

Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 575 (1985). See also Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 400 (1990) (“[T]he ‘clearly

erroneous’ standard requires the appellate court to

uphold any district court determination that falls

within a broad range of permissible conclusions.”)

(emphasis added); Amadeo v. Zant, 486 U.S. 214,

223 (1988) (“If the district court’s account of the

evidence is plausible in light of the record viewed in

its entirety, the court of appeals may not reverse it.”)

(cleaned up) (emphasis added).

In light of this clear precedent, the panel

majority simply misapplied the clearly-erroneous

standard when it rejected the District Court’s

evidentiary findings. “After considering the record

viewed in its entirety in the instant case, we

conclude that the Court of Appeals failed properly to

apply this standard.” Amadeo, 486 U.S. at 223

(cleaned up). Accordingly, this Court should reverse

that ruling and reinstate the District Court’s

ultimate conclusion that the respondent was a tester

who never intended to visit the petitioners’ property

as a customer.

Notably, the panel majority also held, in the

alternative, that the respondent established Article

III standing as an ADA tester. App. 28. The court

concluded that his motivation in returning to the

petitioners’ property was irrelevant under Article III,

8

according to Ninth Circuit precedent interpreting

Havens Realty. App. 15, 28. “He went there because

he liked lobster, or to test for ADA compliance, or

perhaps both. His motivation is not relevant. We

only evaluate whether a plaintiff has an intent to

return, and we hold that Langer does.” App. 28.

In short, the District Court reached the

unassailable conclusion that the respondent only

intended to visit the petitioners’ property as a tester,

and the Ninth Circuit held that the respondent had

Article III standing as a tester. Therefore, this case

is a strong vehicle for deciding whether an ADA

tester has Article III standing.

B.

An ADA Tester Cannot Establish A

Concrete Injury Required Under

Article III Because He Is Not

Personally

Harmed

By

Any

Unlawful Structural Barriers To

Entry At The Place Of Public

Accommodation That He Observes

For Potential ADA Violations.

Article III limits a federal court’s jurisdiction

to deciding “cases” and “controversies.”5 This means

that the plaintiff must have a personal stake in the

outcome of the suit, “in other words, standing.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 423

(2021). To establish standing, the plaintiff must

show that the defendant caused him to suffer a

concrete and personal harm that a federal court can

5 See n.2, above, for Article III’s relevant text.

9

redress. “If ‘the plaintiff does not claim to have

suffered an injury that the defendant caused and the

court can remedy, there is no case or controversy for

the federal court to resolve.’” Transunion, 594 U.S.

at 423 (quoting Casillas v. Madison Ave. Assocs.,

Inc., 926 F.3d 329, 333 (7th Cir. 2019) (Barrett, J.)).

The issue here is whether the respondent, an

ADA tester, is likely to suffer a concrete harm.6 “No

concrete harm, no standing.” Transunion, 594 U.S.

at 417. While a concrete injury need not be tangible

(such as a monetary or physical harm), nonetheless

the injury must bear “a close relationship to a harm

traditionally recognized as providing a basis for a

lawsuit in American courts.” Id. at 424 (cleaned up).

It is difficult to see how an ADA tester could

establish a concrete harm required under Article III,

let alone state a claim recognized under the ADA.7

Title III of the ADA, which covers places of public

accommodation, limits the plaintiff’s recovery to prospective

injunctive relief. See 42 U.S.C. § 12188(a)(1) (“The remedies

and procedures set forth in section 2000a-3(a) of this title [42

U.S.C. § 2000a-3(a)] are the remedies and procedures this

subchapter provides to any person who is being subjected to

discrimination on the basis of disability in violation of this

subchapter.”). Section 2000a-3(a), in turn, provides that the

plaintiff may bring “a civil action for preventive relief,

including an application for a permanent or temporary

injunction, restraining order, or other order.” 42 U.S.C.

§ 2000a-3(a).

6

7 “The [first] question is whether the statute grants the plaintiff

the cause of action that he asserts. . . . [This is] an issue that

requires us to determine, using traditional tools of statutory

interpretation, whether a legislatively conferred cause of action

encompasses a particular plaintiff’s claim.” Bank of Am. Corp.

v. City of Miami, Fla., 581 U.S. 189, 196-97 (2017). A tester’s

10

Unlike an individual with disabilities who is a

thwarted customer--i.e., Congress’s apparent area of

concern8--a tester does not seek to gain access to a

place of public accommodation to enjoy the benefits

of the goods or services offered there. A tester is not

personally harmed by any unlawful structural

barriers to entry. His own ADA rights are not

violated. Simply put, a tester is not “personally

denied equal treatment by the challenged

private enforcement of the law for the sake of others is

apparently not what Congress had in mind when it guaranteed

individuals with disabilities the general right to “the full and

equal enjoyment” of places of public accommodation. 42 U.S.C.

§ 12182(a) (emphasis added). Congress reinforced this right of

active participation in places of public accommodation in more

detail in § 12182(b).

First, Congress defined the term

“individual,” as used in that subsection, to “refer to the clients

or customers of the covered public accommodation.” 42 U.S.C.

§ 12182(b)(1)(A)(iv) (emphasis added). Next, Congress ensured

those individuals “the opportunity . . . to participate in or

benefit from” those places.

42 U.S.C. § 12182(b)(1)(A)(i)

(emphasis added).

While the parties apparently did not raise this issue of

statutory standing below, its consideration at this stage of the

case could avoid adjudication of the Article III standing issue.

“When legislation and the Constitution brush up against each

other, our task is to seek harmony, not to manufacture

conflict.” United States v. Hansen, 599 U.S. 762, 781 (2023).

Consideration of the issue could also provide a clear statutory

basis for distinguishing the tester’s claim in Havens Realty

Corp. v. Coleman, 455 U.S. 363 (1982), on which the Ninth

Circuit in this case relied to conclude that an ADA tester has

Article III standing. App. 15. See Acheson Hotels, 144 S. Ct. at

25-26 (Thomas, J., concurring) (distinguishing Havens Realty

on basis that Fair Housing Act, at issue in that case, provided

tester plaintiff with right of action for receiving false

information, while ADA did not).

8 See n.7, above.

11

discriminatory conduct.” Allen v. Wright, 468 U.S.

737, 755 (1984) (cleaned up), abrogated on other

grounds by Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118 (2014).

Instead, a tester seeks only to identify

potential ADA violations.

He is essentially a

concerned but unharmed observer seeking to enforce

the law on behalf of others.

Any conceivable

“observational injury” would be too abstract and

amorphous to amount to a concrete harm, because it

would not have the requisite “close historical or

common-law analogue.” Transunion, 594 U.S. at

424.

Lacking any identifiable concrete harm, an

ADA tester would not have Article III standing.

Therefore, an unharmed tester’s attempted private

enforcement of the law for the sake of others would

exceed Article III’s jurisdictional limits.

“An

uninjured plaintiff who sues in those circumstances

is, by definition, not seeking to remedy any harm to

herself but instead is merely seeking to ensure a

defendant’s ‘compliance with regulatory law.’”

Transunion, 594 U.S. at 428 (quoting Spokeo, Inc. v.

Robins, 578 U.S. 330, 345 (2016) (Thomas, J.,

concurring)). See also Transunion, 594 U.S. at 427

(“‘Article III grants federal courts the power to

redress harms that defendants cause plaintiffs, not a

freewheeling power to hold defendants accountable

for legal infractions.’”) (quoting Casillas, 926 F.3d at

332)).

An uninjured tester’s private enforcement of

the ADA would also intrude upon the Department of

12

Justice’s exclusive, and politically accountable,

power to “take Care that the Laws be faithfully

executed.” U.S. Const., Art. II, § 3.9 “A regime

where . . . unharmed plaintiffs [could] . . . sue

defendants who violate federal law . . . would

infringe on the Executive Branch’s Article II

authority.” Transunion, 594 U.S. at 429. See also

Acheson Hotels, 144 S. Ct. at 27 (Thomas, J.,

concurring) (“Testers exercise the sort of proactive

enforcement discretion properly reserved to the

Executive Branch, with none of the corresponding

accountability.”) (cleaned up); Transunion, 594 U.S.

at 429 (“Private plaintiffs are not accountable to the

people and are not charged with pursuing the public

interest in enforcing a defendant’s general

compliance with regulatory law.”). In this case, for

example, rather than suing the petitioners, a

Government official could have simply engaged them

in a productive dialogue to make any necessary

changes to their parking lot.10

See 42 U.S.C. § 12188(b)(1)(A)(i) (“The Attorney General shall

investigate alleged violations of this subchapter [governing

places of public accommodation], and shall undertake periodic

reviews of compliance of covered entities under this

subchapter.”); § 12188(b)(1)(B)(i)-(ii) (“If the Attorney General

has reasonable cause to believe that . . . any person or group of

persons is engaged in a pattern or practice of discrimination

under this subchapter; or . . . any person or group of persons

has been discriminated against under this subchapter and such

discrimination raises an issue of general public importance, the

Attorney General may commence a civil action in any

appropriate United States district court.”).

9

10 See Acheson Hotels, 144 S. Ct. at 26 (Thomas, J., concurring)

(“This case exemplifies the dangers [of a politically

unaccountable tester’s private enforcement of the ADA]. An

official could have informed Acheson Hotels that its website

13

In sum, certiorari review is warranted to

decide whether an ADA tester has Article III

standing, when the tester observes and identifies

potential ADA violations but does not suffer any

resulting concrete harm.

CONCLUSION

For the reasons stated above, NELF

respectfully requests that this Court grant the

Petition for Certiorari.

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION

By its attorneys,

Benjamin G. Robbins

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

333 Washington Street

Suite 850

Boston, MA 02108

(617) 695-3660

brobbins@newenglandlegal.org

February 1, 2024

failed to comply with the Reservation Rule, and Acheson Hotels

could have updated its website to explain it had no accessible

rooms. Laufer, however, chose to ‘enforce’ each technical

violation of the ADA she could uncover with a lawsuit. Because

she is a private plaintiff, no discretion was required or

exercised.”).

14