Deborah Laufer v. Arpan LLC ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14846
____________________
DEBORAH LAUFER,
Plaintiff-Appellant,
versus
ARPAN LLC,
d.b.a. America’s Best Value Inn,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:19-cv-00200-AW-GRJ
____________________
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2 Opinion of the Court 20-14846
Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.
NEWSOM, Circuit Judge:
Another day, another standing case. In this iteration, we
have to decide whether an ADA plaintiff suffered a “concrete” in-
jury when she viewed a hotel’s website that omitted accessibility-
related information required by federal regulations and as a result,
she says, experienced “frustration and humiliation”—even though
she admits that she had (and has) no intention to personally visit
the hotel. Today’s case raises difficult questions about how to ap-
ply sometimes dissonant standing precedents. But in the final anal-
ysis, our recent decision in Sierra v. City of Hallandale Beach, 996
F.3d 1110 (11th Cir. 2021)—which, in turn, relied on the Supreme
Court’s decisions in Heckler v. Mathews, 465 U.S. 728 (1984), and
Allen v. Wright, 468 U.S. 737 (1984)—requires us to hold, at this
stage of the proceedings, that our plaintiff has at least alleged an
Article-III-qualifying “stigmatic” injury.
I
Deborah Laufer is “disab[led]” within the meaning of the
Americans with Disabilities Act: She has trouble walking without
assistive devices, can’t use her hands normally, and is visually im-
paired. See 42 U.S.C. § 12102(1)(A). She is a self-described advo-
cate for disabled people’s rights and a “tester” who monitors
whether places of public accommodation and their websites com-
ply with the ADA. In 2019, in the Northern District of Florida
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20-14846 Opinion of the Court 3
alone, Laufer filed more than 50 ADA lawsuits against hotel own-
ers. Arpan, LLC, the owner of America’s Best Value Inn in Mari-
anna, Florida, maintains an online reservation system that Laufer
says violates the ADA and its implementing regulations.
In pertinent part, the ADA states that “[n]o individual shall
be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, ad-
vantages, or accommodations of any place of public accommoda-
tion.” 42 U.S.C. § 12182(a). In particular, the Act prohibits afford-
ing disabled persons an unequal ability to participate in or benefit
from a service or accommodation, id. § 12182(b)(1)(A)(ii), and fail-
ing to make “reasonable modifications in policies, practices, or pro-
cedures” when “necessary” to ensure such participation, id.
§ 12182(b)(2)(A)(ii). The ADA provides a cause of action for any
person “aggrieved” by a violation of the statute, see id. §§ 2000a-
3(a), 12188(a)(1) (noting that § 2000a-3(a) applies to those “being
subjected to discrimination on the basis of disability” or who have
“reasonable grounds for believing” that they are “about to be sub-
jected to discrimination”), and directs the Attorney General to
promulgate regulations to carry out the Act’s provisions, id.
§ 12186(b).
One of those regulations applies to hotel owners and opera-
tors, and governs “reservations made by any means, including by
telephone, in-person, or through a third party.” 28 C.F.R.
§ 36.302(e). As particularly relevant here, the regulation requires
hotels to “[m]odify [their] policies, practices, or procedures to
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4 Opinion of the Court 20-14846
ensure that individuals with disabilities can make reservations for
accessible guest rooms . . . in the same manner as individuals who
do not need accessible rooms.” Id. § 36.302(e)(1)(i). More particu-
larly still, it requires hotel owners to “[i]dentify and describe acces-
sible features in the hotels and guest rooms offered through [their]
reservations service[s] in enough detail to reasonably permit indi-
viduals with disabilities to assess independently whether a given
hotel or guest room meets his or her accessibility needs.” Id.
§ 36.302(e)(1)(ii). Like the ADA itself, the Act’s implementing reg-
ulations provide (or at least purport to provide) a private cause of
action for anyone subjected to discrimination in violation of one of
their provisions. Id. § 36.501(a).
Laufer alleges that the Value Inn’s website and its listings on
third-party sites violated ADA regulations. Specifically, she says,
the sites didn’t mention or provide the option of booking accessible
rooms, nor did they provide information about rooms’ accessibility
features (accessible showers, compliant furniture, etc.). Laufer vis-
ited these websites to test them for compliance with the regula-
tions and to assess the hotel’s accessibility features. She alleges that
she has suffered and continues to suffer “frustration and humilia-
tion as the result of the discriminatory conditions present” on the
websites, and that the sites contribute to her “sense of isolation and
segregation.” Laufer insists that she intends to view the websites
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20-14846 Opinion of the Court 5
in the future, but she admits that she has no intention to visit the
Value Inn or the area in which it’s located. 1
Laufer filed a complaint seeking a declaratory judgment, in-
junctive relief, and attorneys’ fees. Arpan argued, among other
things, that Laufer lacked Article III standing to sue. After limited
discovery, Laufer moved for summary judgment. The district
court denied summary judgment and instead dismissed the case for
want of jurisdiction on the ground that Laufer lacked standing.
Laufer, the court held, hadn’t suffered a “concrete” injury because
the information omitted from the websites “would be useless to
her” given that she never intended to visit the Value Inn, and be-
cause she couldn’t show any constitutionally cognizable stigmatic
harm. The court further found that her injury wasn’t sufficiently
“particularized” because any harm that she experienced was “the
same harm every other website visitor would suffer.”
The only issue on appeal is whether the district court cor-
rectly concluded that Laufer suffered no concrete and particular-
ized injury and therefore lacked standing to sue. Our precedents
compel us to vacate and remand.2
1 The district court found that Laufer never intended to visit the Value Inn and
had no personal need for the information missing from the websites, and she
doesn’t suggest otherwise on appeal.
2 “We review de novo a district court’s dismissal of a case for lack of standing.”
Sierra, 996 F.3d at 1112.
As we will explain, it’s not altogether clear whether the district court
here concluded (1) that the allegations in Laufer’s complaint—that she
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6 Opinion of the Court 20-14846
II
A plaintiff has Article III standing if she can establish (1) an
injury in fact (2) that is fairly traceable to the defendant’s conduct
and (3) that is redressable by a favorable decision. See Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “To establish an in-
jury in fact” at step one, “the plaintiff must demonstrate that [s]he
suffered ‘an invasion of a legally protected interest which is (a) con-
crete and particularized; and (b) actual or imminent, not conjec-
tural or hypothetical.’” Sierra, 996 F.3d at 1113 (quoting Lujan, 504
U.S. at 560). A “concrete” injury must be “real, and not abstract,”
but can be either “tangible” or “intangible.” Spokeo, Inc. v. Robins,
578 U.S. 330, 340 (2016) (quotation marks omitted). A
suffered “frustration and humiliation” as a result of disability-based discrimi-
nation—were inadequate on their face to establish standing, or instead (2) that
even assuming those allegations were legally sufficient to establish standing,
Laufer failed to prove, as a factual matter, the requisite frustration and humil-
iation. See Doc. 45 at 10–11; Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th
Cir. 1990) (“Facial attacks on the complaint require the court merely to look
and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdic-
tion, and the allegations in his complaint are taken as true for the purposes of
the motion. Factual attacks, on the other hand, challenge the existence of sub-
ject matter jurisdiction in fact, irrespective of the pleadings, and matters out-
side the pleadings, such as testimony and affidavits, are considered.” (altera-
tions adopted, citations and quotation marks omitted)). For now, we will as-
sume that the district court held only that Laufer’s frustration and humilia-
tion—even if proven—were inadequate on their face to constitute a concrete
injury, and we will explain why we must reject that conclusion. Our holding
does not prevent the district court from inquiring on remand into the jurisdic-
tional facts underlying Laufer’s alleged injury. See infra at 12–13.
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20-14846 Opinion of the Court 7
“particularized” injury is one that “affect[s] the plaintiff in a per-
sonal and individual way.” Lujan, 504 U.S. at 560 n.1.
The principal question before us is whether Laufer has suf-
fered a concrete intangible injury of the sort that suffices for Article
III. The Supreme Court has directed us to determine an intangible
harm’s concreteness as follows: We first assess whether the alleged
injury bears a “close relationship to harms traditionally recognized
as providing a basis for lawsuits in American courts.” TransUnion
LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021); see also Spokeo, 578
U.S. at 341 (similar, but looking to both “English [and] American
courts”). Separately, “because Congress is well positioned to iden-
tify intangible harms that meet minimum Article III requirements,
its judgment is also instructive and important.” Spokeo, 578 U.S.
at 341; see also TransUnion, 141 S. Ct. at 2204–05. But regardless
of Congress’s judgment—regardless of whether an alleged injury
results from the violation of a right that Congress has recognized
and made individually enforceable through a private cause of ac-
tion—a reviewing court must “independently decide whether a
plaintiff has suffered a concrete harm under Article III” because
Congress cannot “us[e] its lawmaking power to transform some-
thing that is not remotely harmful into something that is.”
TransUnion, 141 S. Ct. at 2205 (quotation marks omitted).
First things first: Laufer’s alleged injury—her inability to ac-
cess certain information on a hotel’s website and her resulting emo-
tional disquiet—bears no “close relationship” to any traditional
common-law cause of action. To be sure, Laufer alleges
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8 Opinion of the Court 20-14846
“frustration and humiliation.” But neither intentional nor negli-
gent infliction of emotional distress is a sufficiently close analogue.
No one contends that Laufer was subject to the kind of “extreme
and outrageous” intentional or reckless conduct that intentional in-
fliction entails. See Bartholomew v. AGL Res., Inc., 361 F.3d 1333,
1339 (11th Cir. 2004). Nor was she subject to physical contact or
within the zone of physical danger, as negligent infliction requires.
See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337–38 (11th Cir.
2012).
Despite the absence of a close common-law comparator, we
conclude that under existing precedent—both our own and the Su-
preme Court’s—Laufer has alleged a concrete intangible injury. In
Sierra, we held that a deaf plaintiff suffered a concrete “stigmatic”
injury when he watched, but could not hear and thus understand,
videos that a city posted on its official website and for which it re-
fused to provide closed captioning. 996 F.3d at 1114. Relying on
the Supreme Court’s decision in Allen v. Wright, 468 U.S. 737(1984), we held that “[a]n individual who suffers an intangible in-
jury from discrimination can establish standing if he personally ex-
perienced the discrimination.” 996 F.3d at 1113 (citing Allen, 468
U.S. at 757 n.22). Quoting another of the Court’s decisions, Heck-
ler v. Mathews, 465 U.S. 728 (1984), we reasoned that “[d]iscrimi-
nation itself, by perpetuating ‘archaic and stereotypic notions’ or
by stigmatizing members of the disfavored group as ‘innately infe-
rior’ . . . can cause serious non-economic injuries to those persons
who are personally denied equal treatment solely because of their
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20-14846 Opinion of the Court 9
membership in a disfavored group.” 996 F.3d at 1113 (quoting
Heckler, 465 U.S. at 739–40). Notably, we also found it relevant
that the plaintiff there had alleged that the discrimination made
him feel “humiliated, embarrassed, and frustrated.” Id. at 1114 n.4.
Sierra can be read in either of two ways—only one of which,
we conclude, survives the Supreme Court’s intervening decision in
TransUnion.3 Construed broadly, Sierra suggests that concrete in-
jury exists whenever an individual experiences illegal discrimina-
tion, regardless of whether she suffers any discernible adverse ef-
fects. We emphasized there that the plaintiff had been “personally
and directly subjected to discriminatory treatment” and said that
he, “as an individual with a disability, ha[d] a concrete interest in
equal treatment under the ADA and the Rehabilitation Act.” Id. at
1114. Notably for present purposes, in concluding that the plaintiff
had suffered a concrete injury, we made no reference to whether
he had any personal need for the information in the inaccessible
videos. Instead, we emphasized his statutory interest in equal treat-
ment “under the ADA and the Rehabilitation Act.” Id. Needless
to say, Laufer would have standing under this broad reading of Si-
erra because she alleges that she personally experienced discrimi-
nation in violation of the ADA.
But we think that TransUnion likely forecloses the broad
reading of Sierra. The Supreme Court held there that a reviewing
3 We sought and received supplemental briefing from the parties regarding the
import of Sierra and TransUnion for this case.
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10 Opinion of the Court 20-14846
court “cannot treat an injury as ‘concrete’ for Article III purposes
based only on Congress’s say-so,” that Congress can’t “transform
something that is not remotely harmful into something that is,”
and, accordingly, that “Congress’s creation of a statutory prohibi-
tion or obligation and a cause of action does not relieve courts of
their responsibility to independently decide whether a plaintiff has
suffered a concrete harm under Article III.” 141 S. Ct. at 2205 (quo-
tation marks omitted). Sierra, broadly construed, would violate
TransUnion’s command. To find concrete injury whenever an in-
dividual personally experiences discrimination in violation of a fed-
eral statute would be to equate statutory violations with concrete
injuries. For better or worse, we can’t do that. 4
But there is a narrower reading of Sierra that, we conclude,
survives TransUnion. We observed there that the plaintiff’s allega-
tions of emotional injury—his “humiliat[ion], embarrass[ment],
and frustrat[ion]”—“further indicate[d] that he suffered a concrete
and particularized injury” because, we explained, “plaintiffs may
recover damages for emotional distress for a violation of section
504 of the Rehabilitation Act.” 996 F.3d at 1114 n.4 (citing Sheely
v. MRI Radiology Network, P.A., 505 F.3d 1173, 1198 (11th Cir.
4 We don’t read Heckler and Allen to hold that illegal discrimination always
and necessarily results in concrete injury—only that “discrimination it-
self . . . can cause” concrete injury, in at least some circumstances. Heckler,
465 U.S. at 739–40 (emphasis added); see also Allen, 468 U.S. at 757 n.22 (not-
ing that stigmatic injury is “judicially cognizable to the extent that respondents
are personally subject to discriminatory treatment,” but not that all illegal dis-
crimination necessarily results in judicially cognizable stigmatic injury).
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20-14846 Opinion of the Court 11
2007)). Even if it’s clear after TransUnion that a violation of an
antidiscrimination law is not alone sufficient to constitute a con-
crete injury, we think that the emotional injury that results from
illegal discrimination is. Cf. id. (“Of course, emotional upset is a
relevant consideration in a damages action.” (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983))). This rule is con-
sistent with TransUnion because it reflects this Court’s independ-
ent determination in Sierra and its predecessors that emotional in-
jury caused by discrimination is a concrete harm that “exist[s] in
the real world.” 141 S. Ct. at 2205 (quotation marks omitted); see
also, e.g., United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir.
2010) (“[A] prior panel’s holding is binding on all subsequent panels
unless and until it is overruled or undermined to the point of abro-
gation by the Supreme Court or by this court sitting en banc.”).
And indeed, TransUnion itself reaffirmed that “discriminatory
treatment”—in some shape or form—is a “concrete, de facto in-
jur[y] that w[as] previously inadequate in law” but that Congress
may “elevate to the status of legally cognizable injur[y].” 141 S. Ct.
at 2205 (citing Allen, 468 U.S. at 757 n.22) (quotation marks omit-
ted).
Laufer’s allegations satisfy Article III under this narrower
reading of Sierra. Because she claims not only that she suffered
illegal discrimination but also that the discrimination resulted in
“frustration and humiliation” and a “sense of isolation and
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12 Opinion of the Court 20-14846
segregation,” she has adequately pleaded a concrete stigmatic in-
jury. 5 And because her emotional injury is her emotional injury, it
affects her “in a personal and individual way” and is therefore suf-
ficiently particularized. Lujan, 504 U.S. at 560 n.1.
III
The upshot: Insofar as the district court dismissed Laufer’s
case on the ground that she failed to adequately allege a concrete
and particularized injury, it erred. Under existing precedent, Lau-
fer’s allegations of frustration and humiliation are facially sufficient
to demonstrate stigmatic-injury standing.
It remains for the district court to determine (or, if it has
done so already, to clarify) whether, as a factual matter, Laufer has
shown that she suffered the requisite frustration and humiliation as
a result of viewing the Value Inn’s websites. See Kennedy v.
5 It’s not fatal that Laufer hasn’t explicitly linked her alleged emotional harm
to a theory of standing based on “stigmatic” injury, in particular. A plaintiff’s
burden is merely to “allege facts essential to show” standing, not to specify a
particular theory of injury—tangible, intangible, stigmatic, informational, etc.
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (emphasis added)
(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)); see also id. (citing King
Bridge Co. v. Otoe Cnty., 120 U.S. 225, 226 (1887), for the proposition that
“facts supporting Article III jurisdiction must appear affirmatively from the
record” (emphasis added)); cf. also Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
90, 99 (1991) (“When an issue or claim is properly before the court, the court
is not limited to the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper construction
of governing law.”). Laufer has done so here.
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20-14846 Opinion of the Court 13
Floridian Hotel, Inc., 998 F.3d 1221, 1230–32 (11th Cir. 2021) (not-
ing that when there is a factual attack on subject matter jurisdiction
and the plaintiff’s standing isn’t “inextricably intertwined with the
merits” of her claim, the district court is “permitted to make credi-
bility determinations and weigh the evidence”); ACLU of Fla., Inc.
v. City of Sarasota, 859 F.3d 1337, 1340 (11th Cir. 2017) (explaining
that a court has an “obligation at any time to inquire into jurisdic-
tion including probing into and resolving any factual disputes
which go to its power to adjudicate the matter” (citation and quo-
tation marks omitted)). In making that determination, the district
court may conduct an evidentiary hearing, see Barnett v. Okeecho-
bee Hosp., 283 F.3d 1232, 1237–38 (11th Cir. 2002), and make its
own factual findings, including about the credibility of Laufer’s tes-
timony, see, e.g., United States v. Trull, 581 F.2d 551, 552 (5th Cir.
1978). And of course, even if the district court finds that Laufer was
in fact frustrated and humiliated, it must also assure itself that she
has established the other elements of standing—the sort of immi-
nent future injury required in a suit for injunctive relief, traceabil-
ity, and redressability. See Sierra, 996 F.3d at 1112–13; Kennedy,
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14 Opinion of the Court 20-14846
998 F.3d at 1230–32. Accordingly, we vacate and remand for fur-
ther proceedings consistent with this opinion. 6
VACATED and REMANDED.
6 Because we conclude that Laufer has at least alleged facts sufficient to confer
Article III standing on a “stigmatic”-injury theory, we needn’t decide, and take
no position on, whether she has alleged an Article-III-qualifying “informa-
tional” injury. In particular, we needn’t reach the question of how best to
understand and apply the Supreme Court’s decisions in Havens Realty Corp.
v. Coleman, 455 U.S. 363 (1982), and TransUnion, as well as our own decision
in Trichell v. Midland Credit Management, Inc., 964 F.3d 990, 1004 (11th Cir.
2020), all of which address informational injury. Should the district court ulti-
mately conclude that Laufer has not shown stigmatic injury as a factual mat-
ter, Laufer can appeal that decision as well as the district court’s original de-
termination that she did not adequately allege informational injury. A future
panel can then address both theories of injury—stigmatic and informational.
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20-14846 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, concurring:
There are times when newer Supreme Court cases, because
of their reasoning and language, make older cases look as though
they are on the brink of extinction. When that happens, the im-
pulse—the instinct, if you will—is to discard the tattered old in fa-
vor of the shiny new. But the Supreme Court has told us on nu-
merous occasions that only it has the authority to overrule its prior
decisions, even when those decisions have been undermined, and
that until it wields that power, lower courts must continue to rec-
ognize and apply the old with the new. See, e.g., Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989) (“If a precedent of this Court has direct application in a case,
yet appears to rest on reasons rejected in some other line of deci-
sions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own
decisions.”).
I agree with the court that Ms. Laufer has alleged stigmatic
injury which gives her Article III standing and I therefore join its
opinion. But I also believe that Ms. Laufer has standing as an ADA
tester under an “informational injury” rationale pursuant to Ha-
vens Realty Corp. v. Coleman, 455 U.S. 363 (1982). Given the trend
of recent Supreme Court cases, Havens Realty may be inconsistent
(in whole or in part) with current standing jurisprudence. For now,
though, it remains binding precedent that governs here.
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2 JORDAN, J., Concurring 20-14846
I
Title III of the Americans with Disabilities Act provides that
“[n]o individual shall be discriminated against on the basis of disa-
bility in the full and equal enjoyment of the goods, services, facili-
ties, privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation.” 42 U.S.C. §
12182(a). Ms. Laufer, who is a resident of Alachua County, Florida,
and is physically disabled under the ADA, 42 U.S.C. § 12102(1)(A),
is a self-described advocate for the rights of disabled persons. She
is a tester who monitors whether places of public accommodation
and their websites comply with the ADA.
In 2019, Ms. Laufer filed an ADA lawsuit against Arpan,
LLC, which operates a hotel in Jackson County, Florida. She al-
leged that the hotel’s own website and several third-party websites,
which she visited on September 16, 2019, failed to comply with the
requirements of 28 C.F.R. § 36.302(e)(1), one of the regulations
promulgated by the Department of Justice to implement the ADA.
As a result, she claims she was unable to determine whether the
hotel was accessible. For example, the hotel’s own website had no
reference to accessible rooms and no option to book an accessible
room. The website also lacked information about whether the ho-
tel offered ADA-compliant or accessible features like roll-in show-
ers, tubs, built-in seating, commodes, grab bars, sinks, wrapped
pipes, sink and door hardware, etc.
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20-14846 JORDAN, J., Concurring 3
Ms. Laufer intends to revisit the hotel’s website and the
third-party websites in the near future to test them for compliance
with § 36.302(e)(1), and/or to reserve a guest room and otherwise
avail herself of the goods, services, facilities, benefits, and accom-
modations of the hotel. She is aware that the websites remain non-
compliant with the ADA and it would be a “futile gesture” for her
to revisit them as long as the violations exist “unless she is willing
to suffer additional discrimination.” The ADA violations at the
websites “infringe [her] right to travel free of discrimination and
deprive her of the information required to make meaningful
choices for travel.”1
II
As relevant here, 28 C.F.R. § 36.302(e)(1)(ii) provides that a
“public accommodation that owns, leases (or leases to), or operates
a place of lodging shall, with respect to reservations made by any
means . . . [i]dentify and describe accessible features in the hotels
and guest rooms offered through its reservation service in enough
detail to reasonably permit individuals with disabilities to assess in-
dependently whether a given hotel or guest room meets his or her
accessibility needs[.]” In plain English, § 36.302(e)(ii) requires hotel
websites to contain and disclose certain information about
1 The complaint, as noted in the court’s opinion, contains additional allega-
tions about Ms. Laufer suffering frustration and humiliation as a result of the
websites’ failure to comply with the ADA. I focus here on the informational
injury alleged by Ms. Laufer.
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4 JORDAN, J., Concurring 20-14846
“accessible features.” Ms. Laufer alleged that the hotel’s website
and the third-party websites deprived her (and continue to deprive
her) of the information required by this regulation.
In addressing whether Ms. Laufer has Article III standing, we
must assume that she has a valid ADA claim against Arpan for a
violation of § 36.302(e)(1)(ii) and that she will succeed on that
claim. See, e.g., Warth v. Seldin, 422 U.S. 490, 500, 502 (1975) (as-
suming the factual validity and legal sufficiency of the plaintiffs’
claims in addressing Article III standing); Culverhouse v. Paulson
& Co., 813 F.3d 991, 994 (11th Cir. 2016) (“[I]n reviewing the stand-
ing question, the court must be careful not to decide the questions
on the merits for or against the plaintiff, and must therefore assume
that on the merits the plaintiffs would be successful in their
claims.”) (internal quotation marks and citation omitted). In other
words, we must take as a given that the websites violate §
36.302(e)(1)(ii), thereby discriminating against Ms. Laufer in viola-
tion of the ADA, and depriving her of information that is required
by federal law. Ms. Laufer has a private right of action under Title
III, see 42 U.S.C. § 12188(a)(1), and that right generally extends to
its implementing regulations. See generally Alexander v. Sandoval,
532 U.S. 275, 284 (2001) (“A Congress that intends the statute to be
enforced through a private cause of action intends the authoritative
interpretation of the statute to be so enforced as well.”).
III
Ms. Laufer is an ADA tester who alleges that when she vis-
ited the hotel’s website and third-party websites, she was denied
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20-14846 JORDAN, J., Concurring 5
information required by federal law (i.e., § 36.302(e)(1)(ii)). But
given that she has no intention of visiting the hotel, or the area in
which it is located, does she have Article III standing to sue Arpan
under the ADA for the websites’ alleged violations? More specifi-
cally, has Ms. Laufer suffered a cognizable injury under Article III?
The answer, I think, is yes under Havens Realty.
A
Havens Realty involved a “racial steering” claim under the
Fair Housing Act of 1968, 42 U.S.C. § 3604. The plaintiffs—three
individuals and one organization—sought “declaratory, injunctive,
and monetary relief.” Havens Realty, 455 U.S. at 367. The com-
plaint alleged that a black tester (plaintiff Sylvia Coleman) and a
white tester (plaintiff Kent Willis) visited residential complexes
owned by Havens Realty to inquire about apartment rentals. Ha-
vens Realty told Ms. Coleman on four separate days that no apart-
ments were available for rent while telling white testers (including
Mr. Willis) on the same days that apartments were available. See
id. at 368. Ms. Coleman and Mr. Willis, the tester plaintiffs, alleged
that they had been injured by the discriminatory acts of Havens
Realty, and that they had been deprived of the benefits of living in
integrated communities free from discriminatory housing prac-
tices. See id. at 369. Ms. Coleman further alleged that the misin-
formation given to her by Havens Realty “caused her ‘specific in-
jury.’” Id.The district court in Havens Realty dismissed the claims of
the tester plaintiffs (as well as those of the organization) for lack of
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6 JORDAN, J., Concurring 20-14846
standing, but the Fourth Circuit reversed. The Supreme Court
granted certiorari to address the plaintiffs’ standing.
For our purposes, the important aspect of Havens Realty is
its holding that Ms. Coleman had standing to sue in her capacity as
a tester, i.e., an individual “who, without an intent to rent or pur-
chase a home or apartment, pose[s] as [a] renter[ ] or purchaser[ ]
for the purpose of collecting evidence of unlawful steering prac-
tices.” Id. at 373. First, the Supreme Court noted that § 3604(d) of
the FHA made it unlawful to “represent to any person because of
race, color, religion, sex, or national origin that any dwelling is not
available for inspection, sale, or rental when such dwelling is in fact
so available,” and that this prohibition was “enforceable through
the creation of an explicit cause of action” in § 3612(a) of the FHA.
See id. (internal quotation marks omitted). Second, explaining that
the injury required by Article III may exist “solely by virtue” of stat-
utes creating legal rights, the Court held that a “tester who has
been the object of a misrepresentation made unlawful under [§
3604(d)] has suffered injury in precisely the form the statute was
intended to guard against, and therefore has standing to maintain
a claim for damages under the [FHA’s] provisions.” Id. at 373–74.
Third, the Court rejected the notion that the lack of interest in rent-
ing an apartment diminished Ms. Coleman’s standing as a tester:
“That the tester may have approached the real estate agent fully
expecting that [s]he would receive false information, and without
any intention of buying or renting a home, does not negate the
simple fact of injury within the meaning of [§ 3604(d)].” Id. at 374.
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20-14846 JORDAN, J., Concurring 7
Fourth, turning to Ms. Coleman’s situation, the Court reasoned
that she “alleged injury to her statutorily created right to truthful
housing information. As part of the complaint, she averred that
[Havens Realty] told her on four different occasions that apart-
ments were not available in the . . . complexes while informing
white testers that apartments were available. If the facts are as al-
leged, then [Ms. Coleman] has suffered ‘specific injury’ from the
challenged acts . . . and the Art[icle] III requirement of injury in fact
is satisfied.” Id. Later in the opinion, the Court confirmed that “the
injury underlying tester standing” was “the denial of the tester’s
own statutory right to truthful housing information caused by mis-
representations to the tester[.]” Id. at 375. 2
In Houston v. Marod Supermarkets, Inc., 733 F.3d 1323(11th Cir. 2013), we applied Havens Realty to permit tester stand-
ing under Title III of the ADA with respect to alleged architectural
barriers. We explained that a disabled person suffers an invasion of
his statutory rights under Title III of the ADA when he “encounters
architectural barriers that discriminate against him on the basis of
disability,” and concluded that Title III’s anti-discrimination and
right-of-action provisions were similar to the FHA provisions at is-
sue in Havens Realty. See id. at 1332–33. Here’s how we phrased
our holding:
2Mr. Willis, unlike Ms. Coleman, lacked standing as a tester because he had
not been given any incorrect or untruthful information about the availability
of apartments for rent. See Havens Realty, 455 U.S. at 374–75.
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8 JORDAN, J., Concurring 20-14846
We hold that . . . Houston’s tester motive behind his
visits to the Presidente Supermarket does not fore-
close standing for his claim under 42 U.S.C. §§
12182(a), 12182(b)(2)(A)(iv), and 12188(a)(1) of Title
III. By the same token, we conclude that “bona fide
patron” status is not a prerequisite for Houston to ob-
tain standing for a lawsuit under these statutory pro-
visions. Stated differently, the alleged violations of
Houston’s statutory rights under Title III may consti-
tute an injury-in-fact, even though he is a mere tester
of ADA compliance.
Id. at 1334. We also explained that “this conclusion alone is
not enough. Because . . . Houston seeks injunctive relief, he must
also show a real and immediate threat of future injury.” Id. Exam-
ining the totality of the circumstances, we concluded that the nec-
essary showing had been made. See id. at 1335–37. Finally, we
rejected the defendant's argument that standing would be incon-
sistent with Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). See
733 F.3d at 1337–40. 3
3 Other circuits have also applied Havens Realty to allow tester standing under
Titles II and III of the ADA. See Tandy v. City of Wichita, 380 F.3d 1277,
1285–87 (10th Cir. 2004) (Title II); Civil Rts. Educ. and Enf’t Ctr. v. Hospitality
Properties Tr., 867 F.3d 1093, 1101–02 (9th Cir. 2017) (Title III). As far as I can
tell, we have one published decision involving a Title III ADA claim similar to
the one asserted by Ms. Laufer, i.e., a claim based on a hotel website’s alleged
violation of the regulations promulgated to implement the ADA. But in that
case, we did not address the standing of the plaintiff to bring such a claim, and
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20-14846 JORDAN, J., Concurring 9
B
The district court here distinguished Havens Realty on a
number of grounds and ruled that Ms. Laufer did not have Article
III standing as a tester. Let me explain why I respectfully disagree.
First, the district court suggested that the Supreme Court’s
holding in Havens Realty as to the standing of Ms. Coleman (the
black tester plaintiff) was dicta because the organizational plaintiff
was also found to have standing. Because only one plaintiff needs
to have standing for a case to go forward, the district court rea-
soned that “the standing of the tester plaintiff was not essential.”
D.E. 45 at 13. This approach, however, runs headlong into the
principle that alternative holdings on a given issue both have prec-
edential effect. The Supreme Court has made that clear, and so
have we. See Com. of Mass. v. United States, 333 U.S. 611, 625
(1948) (where a case has “been decided on either of two independ-
ent grounds” and “rested as much upon the one determination as
the other,” the “adjudication is effective for both”); McLellan v.
Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (en
banc) (“It has long been settled that all alternative rationales for a
given result have precedential value.”). If the district court were
right, one could argue that the Supreme Court’s holding in Havens
Realty as to the standing of the organizational plaintiff was also
dicta because the Court had ruled that Ms. Coleman had standing.
instead affirmed the dismissal on “claim-splitting” grounds. See Kennedy v.
Floridian Hotel, Inc., 998 F.3d 1221, 1236–37 (11th Cir. 2021).
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10 JORDAN, J., Concurring 20-14846
The result would be that no one would know which of the two
standing determinations counted as precedent.
Second, the district court concluded that, unlike Ms. Cole-
man—who was the object of a misrepresentation made unlawful
by the FHA—Ms. Laufer did not have a substantive right under the
ADA to “have certain information on a website.” D.E. 45 at 13.
But that is a merits determination that should not affect the stand-
ing analysis. As noted earlier, we have to assume that Ms. Laufer
will succeed on the merits of her ADA claim, see Culverhouse, 813
F.3d at 994, and that claim is that Arpan violated § 36.302(e)(1)(ii)
because the websites at issue did not have the information required
by the regulation. In other words, Ms. Laufer is asserting that §
36.302(e)(1)(ii), a regulation that implements the ADA, creates a
substantive right to have certain information disclosed. In reject-
ing this claim, the district court conflated standing with the merits.
Third, the district court thought Havens Realty was differ-
ent because in that case Ms. Coleman had information (the availa-
bility of apartments for rent) withheld from her. Ms. Laufer, on
the other hand, did not allege that the hotel “kept information from
her” and did not claim that she could not have obtained the acces-
sibility information by contacting the hotel by phone. See D.E. 45
at 14. The district court’s analysis, however, does not account for
Ms. Laufer’s complaint. Ms. Laufer specifically alleged that the ho-
tel’s own website contained (a) no information about accessible
rooms; (b) no information about options to book accessible rooms;
(c) no information about accessible or compliant options (e.g., roll-
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20-14846 JORDAN, J., Concurring 11
in showers, tubs, built in seating, commodes, grab bars, compliant
doors, furniture, controls, and operating mechanisms); (d) no in-
formation about whether the goods, facilities, and services of the
hotel are connected by an accessible route; (e) no information
about where accessible rooms (if they exist) are located; (f) no in-
formation about whether an elevator is provided within an acces-
sible route; and (g) no information about whether the hotel’s
amenities (outdoor swimming pool, spa tub, laundry facilities, free
self-parking) are accessible. See Complaint at ¶ 11. If a person is
entitled under federal law to information on topics X, Y, and Z, and
no information is provided, that information has been kept or with-
held from the person. See Fed. Election Comm’n v. Akins, 524 U.S.
11, 21 (1998) (citing to Havens Realty with a parenthetical explain-
ing that “deprivation of information about housing availability con-
stitutes ‘specific injury’ permitting standing”).
For standing purposes, then, Ms. Laufer is not different than
Ms. Coleman. Indeed, in cases after Havens Realty the Supreme
Court has held that the deprivation of information to which one is
legally entitled constitutes cognizable injury under Article III. See
Public Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449 (1989) (“As
when an agency denies requests for information under the Free-
dom of Information Act, refusal to permit appellants to scrutinize
the [American Bar Association Standing Committee on Federal Ju-
diciary’s] activities to the extent [the Federal Advisory Committee
Act] allows constitutes a sufficiently distinct injury to provide
standing to sue.”); Akins, 524 U.S. at 21 (“The ‘injury in fact’ that
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12 JORDAN, J., Concurring 20-14846
respondents have suffered consists of their inability to obtain infor-
mation—lists of [American Israel Public Affairs Committee] donors
. . . and campaign-related contributions and expenditures—that,
on respondents’ view of the law, the statute requires that AIPAC
make public. . . . Indeed, this Court has previously held that a plain-
tiff suffers an ‘injury in fact’ when the plaintiff fails to obtain infor-
mation which must be publicly disclosed pursuant to a statute.”)
(citing Public Citizen). The purported Article III distinction be-
tween being given wrong information and being deprived of infor-
mation simply does not work. But cf. Trichell v. Midland Credit
Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 2020) (describing Public
Citizen and Akins as cases involving statutes which required public
disclosure of information).
As for the district court’s observation that Ms. Laufer could
“find out everything she wanted by, say, calling [the hotel],” D.E.
45 at 14, that additional burden is precisely what § 36.302(e)(1)(ii)
is designed to avoid. The regulation specifically provides that dis-
abled individuals should be able to “make reservations for accessi-
ble guest rooms…in the same manner as individuals who do not
need accessible rooms.” § 36.302(e)(1)(ii) (emphasis added). Under
the district court’s logic, Ms. Coleman (the black tester in Havens
Realty) could similarly have found out whether apartments were
available by physically going to the apartment complexes and ask-
ing around rather than consulting with the company’s employees.
It was not Congress’ intention in enacting the FHA to require indi-
viduals to expend extra energy to acquire accurate information that
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20-14846 JORDAN, J., Concurring 13
they are legally entitled to. I do not believe that the ADA is any
different.
C
The Fifth Circuit, in a virtually identical Title III ADA case
involving Ms. Laufer, rejected her argument that she had suffered
informational injury due to hotel websites not having the accessi-
bility information required by § 36.302(e)(1)(ii). It reasoned (1) that
Ms. Laufer had not shown that the missing information was rele-
vant to her, and (2) that Havens Realty was distinguishable because
the information there “had ‘some relevance’ to the tester, . . . be-
cause the statute forbade misrepresenting it to ‘any person,’ quite
apart from whether the tester needed it for some other purpose.”
Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir.
2021). This case supports the district court’s ruling, but I think it is
wrong on various fronts.
First, it seems difficult to fathom why the accessibility infor-
mation missing from a hotel’s websites would need to be relevant
to a disabled person who is acting as a tester to ensure compliance
with the ADA. After all, Ms. Coleman, the black tester in Havens
Realty, had no intention of renting an apartment. The misinfor-
mation about apartment availability given to her, then, could not
have mattered to her one iota except in her role as a tester to mon-
itor FHA compliance, and yet she had standing. The same is true
for Ms. Laufer here.
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14 JORDAN, J., Concurring 20-14846
Second, the Fifth Circuit sought to distinguish Havens Re-
alty on the ground that the information in that case was relevant.
The reason the Fifth Circuit gave is that the FHA prohibited mak-
ing a misrepresentation to “any person.” But that is just wrong,
and in any event contrary to our precedent. The ADA’s anti-dis-
crimination provision states that “[n]o individual shall be discrimi-
nated against on the basis of disability,” 42 U.S.C. § 12182(a), and
when it comes to prohibited activities, “no individual” is the same
as “any person.” That is, in fact, what we said in Houston, where
we characterized the language of the FHA and Title III of the ADA
as “similar”: “[I]f anything, ‘no individual’ and ‘any person’ are
broad terms that necessarily encompass testers.” 733 F.3d at 1332–
33.
Like the Fifth Circuit, the Tenth Circuit recently dismissed
Ms. Laufer’s claim in a similar ADA case involving a hotel’s failure
to provide accessible information on its online reservation system.
See Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022). Ms. Laufer
alleged generally the same claims—that she had suffered discrimi-
nation and had been deprived of information she needed to “make
meaningful choices for travel.” Id. The Tenth Circuit concluded
that Ms. Laufer had not alleged an injury in fact because “Article III
standing requires a concrete injury even in the context of a statu-
tory violation.” Id. at 878.
Although the Tenth Circuit accurately summarized the Su-
preme Court’s recent decisions in Spokeo, Inc. v. Robins, 578 U.S.
330, 341 (2016) and TransUnion LLC v. Ramirez, 141 S.Ct. 2190,
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20-14846 JORDAN, J., Concurring 15
2205 (2021), it failed to meaningfully distinguish Havens Realty.
The Tenth Circuit reasoned that “Ms. Laufer’s status as a tester
alone is insufficient to confer standing” because Ms. Coleman—the
black tester in Havens Realty—wasn’t “just denied information,”
but rather “was given false information because of her race.” 22
F.4th at 879. Once again, I see no difference, as a matter of estab-
lishing a cognizable injury, between being provided the wrong in-
formation in violation of federal law and being denied the infor-
mation altogether in violation of federal law.
The Tenth Circuit in Looper also explained that “Ms. Laufer
ha[d] not alleged that she ha[d] any interest in using the infor-
mation she obtained from the [hotel’s online reservation system]
beyond bringing this lawsuit,” and therefore lacked the necessary
“downstream consequences” to establish informational injury. See
id. at 881 (quoting TransUnion, 141 S. Ct. at 2214). It concluded
that Ms. Laufer’s reliance on Public Citizen and Akins was mis-
placed because in those cases—unlike in Ms. Laufer’s case—the
plaintiffs had identified adverse effects. See id. The plaintiffs in
Public Citizen and Akins, it reasoned, had “alleged an intent to use
the information to participate in the judicial selection and the po-
litical process, respectively. Thus, in both cases, the information
the plaintiffs sought had some relevance to them.” Id.
That may be an accurate description of Public Citizen and
Akins, but the Tenth Circuit failed to articulate what downstream
consequences Ms. Coleman had alleged in Havens Realty that
would distinguish her from Ms. Laufer here. In fact, the Tenth
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16 JORDAN, J., Concurring 20-14846
Circuit was completely silent about the application of downstream
consequences to Havens Realty. The reason, I suggest, is that there
were no downstream consequences in Havens Realty. Ms. Cole-
man had no intention of renting an apartment and therefore the
misinformation she received had absolutely no relevance to her be-
yond ensuring compliance with the FHA. If Ms. Coleman did not
need to allege downstream consequences in order to establish in-
jury, it is hard for me to imagine why Ms. Laufer would need to do
so.
The Second Circuit, in a case decided earlier this month,
continued the trend set by the Fifth and Tenth Circuits, and held
that an ADA tester lacked standing to challenge a hotel’s failure to
provide accessibility information on its online reservation system.
See Harty v. West Point Realty, Inc., No. 20-2672, 2022 WL 815685,
at 1* (2d Cir. Mar. 18, 2022). The fact that the plaintiff “d[id] not
allege anywhere in his complaint that he was using the website to
arrange for future travel” made his claim dead on arrival for the
Second Circuit. See id. at *4. “Because [the plaintiff] asserted no
plans to visit [the hotel] or the surrounding area, he cannot allege
that his ability to travel was hampered by [the hotel’s] website in a
way that caused him concrete harm.” Id. Citing the Tenth Cir-
cuit’s decision in Looper, the Second Circuit concluded that the
plaintiff had not established informational injury because he had
“no interest in using the information.” Id. (internal quotation
marks and citation omitted). Unlike the Tenth Circuit—which at
least attempted to distinguish Havens Realty—the Second Circuit
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20-14846 JORDAN, J., Concurring 17
relegated that case to a footnote. It acknowledged that “testers can
have standing,” but then summarily concluded that the plaintiff’s
“self-proclaimed tester” status was insufficient to constitute injury
in fact. See id. at *4 n.3. But why is that so? How is Ms. Coleman,
a self-proclaimed tester seeking to ensure compliance with the
FHA, any different than the plaintiff in Harty, or for our purposes,
Ms. Laufer? I have yet to see any court answer that question per-
suasively. Havens Realty is still on the books, and we are bound to
apply it here.
D
I’ll conclude by returning to where I began. And that is an
acknowledgement that Havens Realty may be inconsistent with to-
day’s Article III standing doctrine. Havens Realty rested in part on
the notion that injury in fact can exist simply by virtue of the viola-
tion of a statutory right. See 455 U.S. at 373–74. I happen to think
that approach is generally correct, see Muransky v. Godiva Choco-
latier, Inc., 979 F.3d 917, 970–85 (11th Cir. 2020) (en banc) (Jordan,
J., dissenting), but the Supreme Court’s recent standing cases seem
to be going in a different direction.
In Spokeo, 578 U.S. at 341, the Court explained that the vio-
lation of a statutory right does not automatically establish a cog-
nizable injury under Article III. And just last year, the Court reaf-
firmed that point in TransUnion, 141 S.Ct. at 2205. Moreover, the
Court now requires an injury to be both concrete and particular-
ized, see, e.g., Spokeo, 578 U.S. at 340, and it is not apparent that
Havens Realty, which was decided in 1972, was so specific about
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18 JORDAN, J., Concurring 20-14846
these two requirements. See Trichell, 964 F.3d at 1005. Of partic-
ular relevance to our discussion here, the Court in TransUnion spe-
cifically said that an “asserted informational injury that causes no
adverse effects cannot satisfy Article III.” 141 S. Ct. at 2214 (quoting
Trichell, 964 F.3d at 1004).
I realize that we must try to apply and harmonize the old
with the new. One possible way out is to read Havens Realty as a
case in which the deprivation of information also resulted in stig-
matic harm, and that such harm is the downstream consequence
of informational injury. But that recharacterization of Havens Re-
alty is not problematic for Ms. Laufer. If resulting stigmatic harm
is the necessary adverse (and downstream) consequence of infor-
mational injury, Ms. Laufer’s “frustration and humiliation”—
which was caused by the hotel’s failure to provide accessibility in-
formation—suffices. Indeed, as we hold today, Ms. Laufer has suf-
ficiently alleged stigmatic harm.
IV
I agree with the majority that Ms. Laufer has Article III
standing for her Title III ADA claim based on the stigmatic injury
she has alleged.
I also think Ms. Laufer has standing as a tester for her Title
III ADA claim based on the informational injury she suffered due
to the websites not having the information required by 28 C.F.R. §
36.302(e)(ii). Havens Realty remains binding on us as a lower fed-
eral court until the Supreme Court overrules it (or explains what is
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20-14846 JORDAN, J., Concurring 19
left of it), particularly given that we applied its tester standing ra-
tionale to Title III of the ADA in Houston. Havens Realty may be
endangered, but it is not yet extinct, and I believe it governs here.
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20-14846 NEWSOM, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
This is a sequel of sorts to my concurring opinion in Sierra
v. City of Hallandale Beach, 996 F.3d 1110 (11th Cir. 2021). There,
I wrote separately to express my “doubt[s]” about “current stand-
ing doctrine” and to “propose a different way of thinking about
things, in two parts.” Id. at 1115 (Newsom, J., concurring). “First,”
drawing on the original understanding and early application of the
term, I explained my view that “a ‘Case’ exists within the meaning
of Article III, and a plaintiff thus has what we have come to call
‘standing,’ whenever he has a legally cognizable cause of action,
regardless of whether he can show a separate, stand-alone factual
injury.” Id. “Second, however”—and I called it “a considerable
‘however’”—I explained my view that “Article II’s vesting of the
‘executive Power’ in the President and his subordinates prevents
Congress from empowering private plaintiffs to sue for wrongs
done to society in general or to seek remedies that accrue to the
public at large.” Id.This case—which involves a self-avowed “tester” plaintiff
who alleges her own discrimination-based “stigmatic” injury but
who, by her own admission, principally seeks to advance the rights
of disabled people generally—implicates both of the issues that I
flagged in Sierra. First, it illustrates my point that the Supreme
Court’s current “history-and-judgment-of-Congress” standard for
assessing Article III “injury in fact”—which the Court initially artic-
ulated in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and then reit-
erated in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021)—“has
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2 NEWSOM, J., Concurring 20-14846
raised more questions than it answered.” Sierra, 996 F.3d at 1121.
In particular, that standard can’t comfortably accommodate the
sort of “stigmatic” injury that this case involves and that the Court
has consistently acknowledged, most recently in TransUnion. Sec-
ond, this tester case illustrates one of the (perhaps rare) circum-
stances in which a plaintiff’s suit may satisfy all Article III require-
ments but nonetheless constitute an impermissible exercise of “ex-
ecutive Power” in violation of Article II.
Let me take those two points in turn.
I
A
In Spokeo, the Supreme Court reiterated that “[t]o establish
injury in fact”—the first of three key Article III standing elements,
along with causation and redressability—a plaintiff must show that
she “suffered ‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not conjec-
tural or hypothetical.’” 578 U.S. at 339 (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). The Court then proceeded to
unpack the injury-in-fact element’s particularization and concrete-
ness components.
Concrete injuries, the Court clarified, needn’t necessarily be
“tangible”; rather, “intangible injuries can . . . be concrete.” Id. at
340. Importantly for our purposes, the Court then went on to pre-
scribe what has since become a familiar two-part standard for iden-
tifying cognizable “intangible” injuries: “In determining whether
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20-14846 NEWSOM, J., Concurring 3
an intangible harm constitutes injury in fact, both [1] history and
[2] the judgment of Congress play important roles.” Id. With re-
spect to the first criterion, the Court said that “[b]ecause the doc-
trine of standing derives from [Article III’s] case-or-controversy re-
quirement, and because that requirement in turn is grounded in
historical practice, it is instructive to consider whether an alleged
intangible harm has a close relationship to a harm that has tradi-
tionally been regarded as providing a basis for a lawsuit in English
or American courts.” Id. at 340–41. And with respect to the second
criterion, the Court acknowledged that “Congress is well posi-
tioned to identify intangible harms that meet minimum Article III
requirements,” and, accordingly, said that “its judgment is also in-
structive and important.” Id. at 341.
With a tweak or two, the Supreme Court repeated Spokeo’s
two-part history-and-judgment-of-Congress standard last Term in
TransUnion. As for history, in particular, the Court said that the
determinative question is “whether the alleged injury to the plain-
tiff has a ‘close relationship’ to a harm ‘traditionally’ recognized as
a basis for a lawsuit in American courts.” 141 S. Ct. at 2204. “That
inquiry,” the TransUnion Court explained, in turn “asks whether
plaintiffs have identified a close historical or common-law analogue
for their asserted injury.” Id. Separately, the Court echoed
Spokeo’s recognition that “Congress’s views may be ‘instructive’”
and reiterated that courts should therefore “afford due respect to
Congress’s decision to impose a statutory prohibition or obligation
on a defendant, and to grant a plaintiff a cause of action to sue over
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4 NEWSOM, J., Concurring 20-14846
the defendant’s violation of that statutory prohibition or obliga-
tion.” Id. (quoting Spokeo, 578 U.S. at 341).
From the very outset, though, the Supreme Court seems to
have carved out sui generis exceptions to the history-and-judg-
ment-of-Congress metastructure. In Spokeo, for instance, the
Court pointed to a pair of decisions concerning “free speech” and
“free exercise”—Pleasant Grove City v. Summum, 555 U.S. 460(2009), and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.
520 (1993), respectively—as exemplary of “previous cases [confirm-
ing] that intangible injuries can nevertheless be concrete.” 578 U.S.
at 340. In TransUnion, the Court referred back to Spokeo—and in
particular to Spokeo’s citations to Pleasant Grove and Lukumi—to
suggest that Article-III-qualifying intangible harms “may” also “in-
clude harms specified by the Constitution itself.” 141 S. Ct. at 2204.
Although it’s not entirely clear—there’s only so much one can dis-
cern from the Court’s tentative language and its use (in both
Spokeo and TransUnion) of the hazy “See, e.g.” signal—the Court
appears to have meant for Pleasant Grove and Lukumi to stand in
for decisions concerning constitutional harms more generally.
The Court’s recognition that violations of constitutional
rights can give rise to Article-III-qualifying intangible injuries seems
both (1) obviously correct and (2) at the same time, tough to situate
within the two-part history-and-judgment-of-Congress standard.
By their very nature, constitutional rights have little to do with—
and exist independently of—congressional sanction, so the “judg-
ment of Congress” prong of the Spokeo-TransUnion standard
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would seem to be largely inapposite. And while constitutional
rights are most assuredly “histor[ical]”—or to use the TransUnion
Court’s term, “traditional”—they don’t necessarily have precise
“common-law analogues” of the sort that courts have emphasized
in the wake of Spokeo and TransUnion. TransUnion, 141 S. Ct. at
2204. In any event, it’s still not altogether clear—to me, anyway—
whether the Supreme Court meant to envelop some (or all?) con-
stitutional harms within the “history” prong of its two-part test or
whether, instead, those harms just exist outside that test altogether.
Which, in a way, brings us to the discrimination-based “stig-
matic” harm that Deborah Laufer alleges here. In a pair of deci-
sions issued nearly 40 years ago now, the Supreme Court recog-
nized that discrimination could give rise to a “stigmatic injury” suf-
ficient to confer Article III standing. First, in Heckler v. Mathews,
the Court considered a man’s challenge to a Social Security Admin-
istration policy that would have reduced his pension benefits but
not those of similarly situated women. 465 U.S. 728, 735 (1984).
The Court held that the man’s “standing [did] not depend on his
ability to obtain increased Social Security payments,” because “the
right to equal treatment guaranteed by the Constitution is not co-
extensive with any substantive rights to the benefits denied the
party discriminated against.” Id. at 737, 739. Rather, the Court
said, “discrimination itself, by perpetuating archaic and stereotypic
notions or by stigmatizing members of the disfavored group as in-
nately inferior and therefore as less worthy participants in the po-
litical community, can cause serious noneconomic injuries to those
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6 NEWSOM, J., Concurring 20-14846
persons who are personally denied equal treatment solely because
of their membership in a disfavored group.” Id. at 739–40 (quota-
tion marks and internal citation omitted).
Later the same year, the Court held that a group of black
parents lacked standing to challenge the constitutionality of tax ex-
emptions that the IRS had granted to racially discriminatory private
schools because, the Court said, the parents hadn’t “personally
[been] denied equal treatment.” Allen v. Wright, 468 U.S. 737, 755
(1984) (quoting Heckler, 465 U.S. at 740). Importantly, though, the
Court cited Heckler for the proposition that the parents’ “stigmatic
injury, though not sufficient for standing in the abstract form in
which their complaint assert[ed] it, is judicially cognizable to the
extent that [they] are personally subject to discriminatory treat-
ment.” Id. at 757 n.22 (citing Heckler, 465 U.S. at 739–40).
Where does Heckler-Allen-style “stigmatic injury” fit within
the Court’s current history-and-judgment-of-Congress framework?
Unclear. Neither Spokeo nor TransUnion purports to overrule, or
even limit, Heckler or Allen. TransUnion, to the contrary, specifi-
cally cites Allen with approval. But the way in which it does so
leaves me confused about stigmatic injury’s place—and by exten-
sion, the place of constitutional rights more generally—in the
Spokeo-TransUnion schema. In particular, the TransUnion Court
cited Allen—using a “cf., e.g.” signal and appending the sparse ex-
planatory parenthetical “(discriminatory treatment)”—in support
of the proposition that Congress can “elevate to the status of legally
cognizable injuries concrete, de facto injuries that were previously
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20-14846 NEWSOM, J., Concurring 7
inadequate at law.” 141 S. Ct. at 2205 (quoting Spokeo, 578 U.S. at
341). So, I suppose it’s clear that stigmatic injury survives in some
form as a basis for standing under the Spokeo-TransUnion ap-
proach to standing. But how, and under what conditions?
First, TransUnion’s “cf., e.g.” citation to Allen seems to sug-
gest that the Court thinks of stigmatic harm as the sort of “con-
crete, de facto injur[y] that w[as] previously inadequate at law” but
that Congress can “elevate” to “legally cognizable” status. Id. But
both Heckler and Allen focused on the constitutional right to equal
protection. Neither involved an antidiscrimination statute, and
thus neither would appear to have anything to do with what
Spokeo called the “judgment of Congress.” Rather, it would seem
that the sort of stigmatic injury that the Court recognized as suffi-
cient in Heckler and Allen falls—like free-speech and free-exercise
injuries—into some (stand-alone?) category of “constitutional”
harm that, as I’ve said, just doesn’t fit very neatly into the Spokeo-
TransUnion framework. Where that leaves stigmatic injuries re-
sulting from discrimination in violation of federal statutes—like
Laufer’s alleged ADA injury here—I have no idea. Perhaps statu-
tory stigmatic injuries reside in the judgment-of-Congress element
of the Spokeo-TransUnion two-part standard, while constitutional
stigmatic injuries exist as part of the history element or as a sui gen-
eris exception to that standard. I’m just not sure.
Second—and more importantly for present purposes—what
exactly counts as a concrete stigmatic injury? Is any discrimination,
however the courts might independently define it, enough? Given
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8 NEWSOM, J., Concurring 20-14846
TransUnion’s reference to Allen in connection with the judgment-
of-Congress prong, does discrimination need to rise to the level of
a statutory violation? Or because Heckler and Allen actually dealt
with constitutional claims, is it only discrimination in violation of
the Constitution that qualifies? And in either event, must the al-
leged discrimination cause additional, downstream effects, as “in-
formational” injuries seemingly must? See TransUnion, 141 S. Ct.
at 2214 (rejecting an “informational injury” theory of standing, in
part, because the plaintiffs “ha[d] identified no ‘downstream conse-
quences’ from failing to receive the required information” (quota-
tion omitted)). On that score, TransUnion isn’t particularly helpful
except to clarify that courts shouldn’t automatically equate statu-
tory violations with concrete injuries. Id. at 2205. Heckler is also
ambiguous, noting only that discrimination itself “can” cause seri-
ous non-economic injuries. 465 U.S. at 739. So too is Allen, which
on the one hand implies that anyone “personally subject to discrim-
inatory treatment” suffers judicially cognizable stigmatic injury,
but on the other notes that stigmatic injury requires identification
of “some concrete interest with respect to which respondents are
personally subject to discriminatory treatment” and that “[t]hat in-
terest must independently satisfy the causation requirement of
standing doctrine.” 468 U.S. at 757 n.22 (emphasis added).
Lots of questions—and not many answers. The majority
opinion in this case reflects our best effort to apply Sierra’s binding
precedent in light of TransUnion, Allen, and Heckler, but I suspect
that the law concerning “stigmatic injury” will remain deeply
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20-14846 NEWSOM, J., Concurring 9
unsettled until the Supreme Court steps in to provide additional
guidance.
B
Before turning to Article II’s implications for this case—and
I’ll admit to a little piling on here—let me just flag one more aspect
of the Supreme Court’s current Article III standing doctrine that I
find puzzling. As already noted, Spokeo instructed courts to deter-
mine whether the alleged intangible injury is closely related to a
harm that has “traditionally been regarded as providing a basis for
a lawsuit in English or American courts.” 578 U.S. at 341.
TransUnion seemingly narrowed the frame somewhat—dropping
the “English” in favor of a singular focus on “American courts”—
and, in doing so, endorsed as examples of valid common-law ana-
logues (1) “reputational harms,” (2) “disclosure of private infor-
mation,” and (3) “intrusion upon seclusion.” 141 S. Ct. at 2204.
Notably, though, the privacy-related torts that the Court empha-
sized didn’t materialize until the late nineteenth century, at the ear-
liest—and in any event long after the Founding. Most observers
trace their origins to an 1890 Harvard Law Review article by Sam-
uel Warren and Louis Brandeis and to ensuing state supreme court
decisions. See Samuel D. Warren & Louis D. Brandeis, The Right
to Privacy, 4 Harv. L. Rev. 193 (1890); see also, e.g., Pavesich v.
New Eng. Life Ins. Co., 50 S.E. 68, 74–75 (Ga. 1905); Munden v.
Harris, 134 S.W. 1076, 1079 (Mo. Ct. App. 1911); Kunz v. Allen, 172
P. 532, 532–33 (Kan. 1918).
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10 NEWSOM, J., Concurring 20-14846
It seems to me that there are two defensible historical ap-
proaches to Article III’s case-or-controversy requirement—but that
TransUnion’s isn’t one of them. First, there’s my own view—that
based on the original understanding and early application of the
term, “an Article III ‘Case’ exists whenever the plaintiff has a cause
of action.” Sierra, 996 F.3d at 1126. Under this theory, the focus of
the originalist inquiry is the constitutional term “Case”—which the
historical evidence demonstrates simply meant (and means) “‘[a]
cause or suit in court.’” Id. at 1123 (quoting Case, Webster’s Amer-
ican Dictionary of the English Language (1828)). If a plaintiff has a
cause of action—whether it derives from a statute or from the com-
mon law, and even if it is newly created—then he has a “Case”
within the meaning of Article III.
There is an alternative approach that takes Framing-era his-
tory equally seriously but that formulates the issue more granu-
larly. On that view, only the particular common-law causes of ac-
tion that existed at the time of the Founding can serve as valid an-
alogues for modern-day Article III “cases.” So, to my question in
Sierra, “Just how old must a common-law tort be in order to qualify
as having been ‘traditionally . . . regarded as providing a basis for a
lawsuit in English or American courts?’” this second theory would
answer, “Very old—as in 1787 old.” See id. at 1121 (alteration in
original) (quoting Spokeo, 578 U.S. at 340–41). When people of the
Founding generation used the term “Case,” the argument would
go, they necessarily had in mind the particular sorts of claims that
could give rise to a lawsuit then. I get that—I don’t necessarily
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20-14846 NEWSOM, J., Concurring 11
agree with it, as I think it frames the inquiry too narrowly,1 but I
get it.
What I don’t get is the TransUnion Court’s compromise po-
sition, according to which the term “Case” includes post-Founding
common-law causes of action, like the relatively modern privacy
torts that the Court featured as exemplars, but doesn’t include new
statutory causes of action—unless, that is, they happen to reflect
what reviewing courts independently deem to be preexisting “con-
crete” injuries. If anything, the Court’s approach seems to get
things exactly backwards. Under it, state courts—taking their cue
from law professors—are empowered to create new causes of ac-
tion sufficient to confer Article III standing, but the United States
Congress is not. I worry that TransUnion’s approach, which looks
vaguely to “histor[y]” and “tradition[],” but not to original, Found-
ing-era understanding, leaves too much to chance—and thus to in-
dividual judges’ discretion. (What about negligent infliction of
emotional distress, for instance, which “has only emerged as a cog-
nizable, independent cause of action within the last half century,”
John K. Kircher, The Four Faces of Tort Law: Liability of Emo-
tional Harm, 90 Marq. L. Rev. 789, 807 (2007)—“historical” and
1 See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Inter-
pretation of Legal Texts 101 (2012) (“Without some indication to the contrary,
general words . . . are to be accorded their full and fair scope. They are not to
be arbitrarily limited. This is the general-terms canon, which is based on the
reality that it is possible and useful to formulate categories . . . without know-
ing all the terms that may fit—or may later, once invented, come to fit—within
those categories.”).
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12 NEWSOM, J., Concurring 20-14846
“traditional[]” enough?) Far better, I think, to tether Article III
standing doctrine to the objectively verifiable original meaning of
the written text.
II
A
On, then, to Article II. In Sierra, I wrote that while in my
view “Congress has broad authority to create judicially enforceable
rights by statute and thereby authorize private citizens to sue,” its
authority “isn’t unlimited.” 996 F.3d at 1132. Congress can’t, I said,
“just enact any statute it wants empowering private citizens to sue
on any issue and for any remedy.” Id. In particular, I posited that
consistent with Article II of the Constitution, which vests the “ex-
ecutive Power” exclusively in the President and his subordinates,
see U.S. Const. art. II. § 1, Congress “may not give to anyone”
else—including, most notably, private parties—“a right to sue on
behalf of the community and seek a remedy that accrues to the
public,” Sierra, 996 F.3d at 1136.
As I explained, the quintessential example of a suit that ran
afoul of Article II’s vesting of executive authority may well (if iron-
ically) be Lujan v. Defenders of Wildlife—“in many respects the
cornerstone of modern Article III standing doctrine.” Sierra, 996
F.3d at 1132. There, the Supreme Court considered whether pri-
vate parties could sue Executive Branch officials under the Endan-
gered Species Act. Section 7(a)(2) of the Act required federal agen-
cies to consult with the Secretary of the Interior to ensure that no
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20-14846 NEWSOM, J., Concurring 13
governmental action “jeopardize[d] the continued existence of any
endangered species.” Lujan, 504 U.S. at 558 (quoting 16 U.S.C.
§ 1536(a)(2)). The Fish and Wildlife Service and the National Ma-
rine Fisheries Service had jointly promulgated a regulation inter-
preting § 7(a)(2)’s consultation requirement to apply only to ac-
tions taken in the United States or on the high seas, not to those
taken in foreign countries. Id. at 559. Environmental groups and
several of their members sued, challenging the regulation as too
permissive and seeking both a declaration that the regulation mis-
interpreted § 7(a)(2)’s geographic reach and an injunction directing
the Secretary to issue a new rule with broader application. Id.
The Supreme Court, of course, decided the case on Article
III grounds, concluding that the plaintiffs couldn’t satisfy standing
doctrine’s injury-in-fact and redressability requirements. But along
the way, the Court also—and I think correctly—emphasized the
separation-of-powers concerns that the plaintiffs’ suit presented. In
particular, the Court said, the plaintiffs’ action sought to compel
executive agencies to enforce the environmental laws in a particu-
lar manner, and thereby sought to “transfer from the President to
the courts the Chief Executive’s most important constitutional
duty, to ‘take Care that the Laws be faithfully executed.’” Id. at 577
(quoting U.S. Const. art. II, § 3). As I wrote in Sierra, Article II’s
Vesting and Take Care Clauses “straightforwardly explain[] the re-
sult in Lujan.” 996 F.3d at 1137. The plaintiffs in that case “sought
to challenge broad-based government policies that they claimed
had far-reaching injurious effects, and sought a remedy accruing
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14 NEWSOM, J., Concurring 20-14846
not to them individually, but rather to society at large”—and
thereby, I contended, sought to exercise power that the Framers
and their common-law forebears would have “widely understood
to be ‘executive’ in nature.” Id.
I concede that Laufer’s suit doesn’t present exactly the same
separation-of-powers problems that Lujan did—she is not, for in-
stance, seeking to commandeer an Executive Branch agency and
compel it to regulate in a particular manner. Even so, I think her
suit poses similar problems, and I think it ultimately crosses the
constitutional line. Let me try to explain why.
B
Laufer is no ordinary litigant, and her suit is no ordinary civil
action. Laufer is loudly, proudly, and self-avowedly a “tester”
plaintiff. See Br. of Appellant at 2; see also Reply Br. of Appellant
at 1 (“tester[]”); Complaint at 3 (“tester”). What do I mean—what
does she mean—by that label? In Havens Realty Corp. v. Coleman,
a case involving housing discrimination, the Supreme Court de-
scribed tester plaintiffs this way: “In the present context, ‘testers’
are individuals who, without an intent to rent or purchase a home
or apartment, pose as renters for the purpose of collecting evidence
of unlawful [discriminatory] practices.” 455 U.S. 363, 373 (1982).
That definition fits Laufer to a T. She brought her lawsuit pursuant
to—and in an effort to vindicate the rights created under—28
C.F.R. § 36.302(e). That ADA-based regulation requires a hotel
(among other things) to provide “enough detail” through its “res-
ervation service[s]” to enable disabled persons to determine
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20-14846 NEWSOM, J., Concurring 15
whether its rooms “meet[] his or her accessibility needs,” to “en-
sure that individuals with disabilities can make reservations for ac-
cessible guest rooms,” to “[r]eserve, upon request, accessible guest
rooms,” and to “h[o]ld” specific “accessible guest room[s]” for “re-
serving customer[s].” Id. § 36.302(e)(i)–(v). But much like the
tester plaintiffs in Havens Realty, who had no “intent to rent or
purchase a home or apartment,” the district court here found, and
it is undisputed on appeal, that “Laufer . . . has no plan to ever visit”
and “will never stay in” the Value Inn in Marianna, Florida—the
particular hotel whose online reservation system she challenges as
violative of the ADA’s implementing regulation. Doc. 45 at 3. So
to be clear, Laufer has expressly disclaimed any interest in benefit-
ing from the very provision that she seeks to enforce. Even so—
despite her disinterest in visiting the Value Inn—Laufer, like the
testers in Havens Realty, effectively “pose[d]” as a would-be patron
and reviewed the hotel’s websites “for the purpose of collecting ev-
idence of unlawful [ADA] practices.” 455 U.S. at 373.
Now to be sure, Laufer claims to have suffered personal in-
juries as a result of viewing the hotel’s websites that omit accessi-
bility-related information—as already noted, she alleges a discrim-
ination-based “stigmatic” injury that she says was accompanied by
feelings of “frustration and humiliation.” Complaint at 9. More
prominently though—and to her credit, she’s very transparent
about this—Laufer views herself as an “advocate of the rights of
similarly situated disabled persons.” Complaint at 3; see also Br. of
Appellant at 2. In that capacity, she explained, she views hundreds
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16 NEWSOM, J., Concurring 20-14846
of websites for hotels that she readily admits she has no plans to
patronize in order to “monitor[], ensur[e], and determin[e]”
whether they comply with the ADA—presumably to aid others
who might actually want to visit them. Complaint at 3. As part of
her litigation program—I can’t think of a better word for it—Laufer
filed more than 50 ADA lawsuits against hotel owners in 2019 in
the Northern District of Florida alone, see Doc. 45 at 1, and an ad-
mittedly unscientific search of online court records suggests that,
since 2018, she has filed more than 600 suits nationwide—the great
majority of which appear to seek broad-based relief under the
ADA. See, e.g., Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022);
Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269 (5th Cir. 2021). 2
Laufer isn’t bashful about any of this. In her brief to us, she
candidly proclaimed that ADA enforcement depends on “a small
number of private plaintiffs who view themselves as champions for
the disabled” and that “[f]or the ADA to yield its promise of equal
access for the disabled, it may indeed be necessary and desirable for
committed individuals to bring serial litigation advancing the time
when public accommodations will be compliant with the ADA.”
Br. of Appellant at 26 (quoting Molski v. Evergreen Dynasty Corp.,
500 F.3d 1047, 1062 (9th Cir. 2007)). Without apology, Laufer
2 A PACER search for exact matches to “Deborah Laufer” as the plaintiff
yielded 658 cases—all filed between July 2018 and today. A random sample of
those cases consisted solely of ADA lawsuits brought against businesses.
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20-14846 NEWSOM, J., Concurring 17
considers herself a “private attorney general.” Id. at 27; see also
Oral Arg. at 20:05–21:25.
Laufer is therefore technically wearing two hats. On the one
hand, to employ descriptors that I used in Sierra, she is suing to
“vindicate [her] own rights and . . . seek[ing] remedies that will ac-
crue to [her] personally”—which is of course perfectly appropriate.
996 F.3d at 1136. On the other hand, she is also—and I think it’s
fair to say, more prominently—suing “on behalf of the community
and seek[ing] a remedy that accrues to the public”—which I posited
would implicate Article II. Id. The relief she wants—an injunction
ordering the hotels to revise their websites—would simultaneously
redress her private injuries and benefit the public at large. How,
then, to characterize Laufer’s suit vis-à-vis the Article II concerns
that I identified in Sierra?
For starters, it seems clear to me that not every plaintiff who
seeks relief that will redress her private injuries but that may also
benefit the public risks violating Article II. Sometimes even the
most narrowly tailored remedy will incidentally—but neces-
sarily—inure to the public’s benefit. Imagine, for instance, a home-
owner whose lakefront property is being damaged by a company’s
ongoing discharge of pollutants into the water. To be sure, if the
homeowner succeeds in obtaining an injunction to stop the pollu-
tion as a means of preventing the degradation of his own land, the
relief will benefit his neighbors—and, for that matter, many other
users and admirers of the lake. But that fact alone surely doesn’t
impinge on executive authority under Article II.
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18 NEWSOM, J., Concurring 20-14846
So what makes Laufer’s suit different? “Tester”-brought ac-
tions like Laufer’s, I contend, are unique. Whereas the typical
plaintiff suffers an injury and then chooses to sue, a tester plaintiff
like Laufer chooses to sue and then—of her own free will—suffers
an injury. She literally manufactures her own standing (or to put
it another way, circumvents current standing doctrine’s limita-
tions) by bringing herself to the source of her own injury—in this
case, the allegedly offending hotel websites. Accordingly, tester
suits implicate—and I think can violate—Article II for a reason
highlighted by the Supreme Court in TransUnion: Testers exercise
the sort of proactive enforcement discretion properly reserved to
the Executive Branch. As the TransUnion Court emphasized, “the
choice of how to prioritize and how aggressively to pursue legal
actions against defendants who violate the law falls within the dis-
cretion of the Executive Branch, not within the purview of private
plaintiffs (and their attorneys).” 141 S. Ct. at 2207. Unlike the Pres-
ident and his subordinates, the Court explained, private plaintiffs
“are not accountable to the people and are not charged with pur-
suing the public interest in enforcing a defendant’s general compli-
ance with regulatory law.” Id. (citing Lujan, 504 U.S. at 577).
Let me try to unpack the TransUnion Court’s brief discus-
sion of executive enforcement discretion, by reference to both
modern doctrine and Framing-era history. To start with the for-
mer, we recently summarized that “[t]he Supreme Court has re-
peatedly reaffirmed the principle—which dates back centuries—
that ‘the Executive Branch has exclusive authority and absolute
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20-14846 NEWSOM, J., Concurring 19
discretion to decide whether to prosecute a case.’” In re Wild, 994
F.3d 1244, 1260 (11th Cir. 2021) (en banc) (quoting United States v.
Nixon, 418 U.S. 683, 693 (1974)). And to be clear, that discretion—
whether or not to prosecute a particular violation of federal law—
“‘flows not from a desire to give carte blanche to law enforcement
officials but from recognition of the constitutional principle of sep-
aration of powers.’” Id. at 1260 n.16 (quoting United States v.
Ream, 491 F.2d 1243, 1246 n.2 (5th Cir. 1974)). And to be equally
clear, while the Executive Branch’s exclusive enforcement discre-
tion may be most conspicuous in criminal prosecutions, it extends
further to include civil-enforcement actions, as well. See, e.g., In
re Aiken County, 725 F.3d 255, 264 n.9 (D.C. Cir. 2013) (opinion of
Kavanaugh, J.) (“Because they are to some extent analogous to
criminal prosecution decisions and stem from similar Article II
roots . . . civil enforcement decisions brought by the Federal Gov-
ernment are presumptively an exclusive Executive power.”); see
also, e.g., Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“[A]n
agency’s refusal to institute proceedings shares to some extent the
characteristics of the decision of a prosecutor in the Executive
Branch not to indict—a decision which has long been regarded as
the special province of the Executive Branch, inasmuch as it is the
Executive who is charged by the Constitution to ‘take Care that the
Laws be faithfully executed.’” (quoting U.S. Const. art. II, § 3)).
As best I can tell, modern Article II doctrine—which holds
that case-by-case enforcement discretion is a core and nondelega-
ble component of the executive power—is firmly rooted in
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20 NEWSOM, J., Concurring 20-14846
Founding-era history and practice. Let’s start with pre-American
sources, which reveal an understandable preoccupation with “tyr-
anny”—and a corresponding commitment to a separation of the
law-making and law-enforcing powers. For instance, “the cele-
brated Montesquieu,” as James Madison dubbed the influential
French political philosopher in The Federalist, wrote that “[w]hen
the legislative and executive powers are united in the same person,
or in the same body of magistrates, there can be no liberty”—be-
cause, he warned, “apprehensions may arise, lest the same mon-
arch or senate should enact tyrannical laws, to execute them in a
tyrannical manner.” 1 Baron de Montesquieu, The Spirit of the
Laws 182 (J.V. Prichard ed., Thomas Nugent trans., 1900); see The
Federalist No. 47, at 298, 300 (James Madison) (Clinton Rossiter
ed., 1961) (quoting this passage of The Spirit of the Laws). Not long
thereafter, just across the English Channel, Blackstone sounded a
similar theme using similar terms: “In all tyrannical governments,
the supreme magistracy, or the right of making and of enforcing
the laws, is vested in one and the same man,” such that “there can
be no public liberty” because “[t]he magistrate may enact tyranni-
cal laws, and execute them in a tyrannical manner.” 1 William
Blackstone, Commentaries on the Laws of England *146 (1765)
(emphasis omitted).
This country’s Framers likewise “saw the separation of the
power to prosecute from the power to legislate as essential to pre-
serving individual liberty.” Aiken County, 725 F.3d at 264 (opinion
of Kavanaugh, J.). Perhaps most famously, Madison wrote in
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20-14846 NEWSOM, J., Concurring 21
Federalist No. 47 that “[t]he accumulation of all powers, legislative,
executive, and judiciary, in the same hands . . . may justly be pro-
nounced the very definition of tyranny.” The Federalist No. 47,
supra, at 298. But Madison was hardly alone. James Wilson—who
was a delegate to the Constitutional Convention, a member of the
Committee of Detail that produced the initial draft of the Consti-
tution, and later a Supreme Court justice—voiced the same con-
cern:
Let us suppose the legislative and executive powers
united in the same person: can liberty or security be
expected? No. . . . May [that person] not then—and,
if he may, will he not then . . . enact tyrannical laws
to furnish himself with an opportunity of executing
them in a tyrannical manner?
1 Collected Works of James Wilson 705 (Liberty Fund ed., 2007).
As Professor Zachary Price has explained in a thorough
treatment of the subject, the Framers’ general concerns about di-
viding the law-making and law-enforcing powers “presume,” more
particularly, “that enforcement discretion is a proper aspect of the
executive function.” Zachary S. Price, Enforcement Discretion and
Executive Duty, 67 Vand. L. Rev. 671, 701 (2014) (emphasis added).
The reason: “Were the President obliged to enforce congressional
statutes to the hilt, the separation of executive and legislative func-
tions would do nothing to moderate tyrannical laws.” Id. at 701–
02. “The separation of legislative and executive functions helps
prevent tyranny precisely because a discretionary decision by
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22 NEWSOM, J., Concurring 20-14846
executive officers intervenes between the enactment of the prohi-
bition and its application to any particular individual.” Id. at 702
(emphasis added).
One powerful piece of evidence regarding this connection—
between dividing power as a means of avoiding tyranny in general
and the exercise of case-by-case enforcement discretion in particu-
lar—comes from a speech that future Chief Justice John Marshall
made on the floor of Congress while serving in the House of Rep-
resentatives. In it, Marshall defended President Adams’s handling
of two cases involving allegedly mutinous sailors—one of whom
Adams chose to extradite to England, the other of whom he opted
not to prosecute: “If judgment of death [in a criminal case] is to be
pronounced,” Marshall said, “it must be at the prosecution of the
nation, and the nation may at will stop that prosecution.” 10 An-
nals of Cong. 615 (1800). Importantly for our purposes, Marshall
then explained that “[i]n this respect the President expresses consti-
tutionally the will of the nation” and in so doing “may rightfully
. . . enter a nolle prosequi, or direct that the criminal be prosecuted
no farther.” Id. “This,” Marshall concluded, “is the exercise of an
indubitable and a Constitutional power.” Id. In his speech, Mar-
shall thereby “articulated, in strikingly modern terms, the norma-
tive theory that the President, as the constitutional representative
of ‘the nation,’ may decide which criminal violations to pursue and
which to ignore.” Price, Enforcement Discretion, at 702–03.
“Even more clearly than Madison, Montesquieu, or Blackstone,
Marshall asserted that the executive function entails exercising
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20-14846 NEWSOM, J., Concurring 23
independent judgment regarding whether the ‘will of the nation’
requires prosecution of a particular defendant who violated Con-
gress’s general enactments.” Id. at 703. And to be clear, other
Framing-era evidence—like modern doctrine—indicates that the
President’s constitutional power “to enforce the execution of [the]
laws” transcends the criminal-prosecution realm to include, as
well, the pursuit of what we would recognize today as civil sanc-
tions—for example, “pecuniary mulcts” (i.e., fines) and “suspen-
sion[s] or divestiture[s] of privileges.” The Federalist No. 21, supra,
at 134–35 (Alexander Hamilton).
Rounding out the story, it seems clear that the Framers’ un-
derstanding—that as a protection against tyrannical government
Executive Branch officials were vested with substantial discretion
in deciding how and to what extent to enforce federal law in par-
ticular instances—carried over into actual practice: “[F]ederal pros-
ecutors and other executive officials claimed from the beginning
authority to decline enforcement of federal statutes in particular
cases—an important indication that the executive role has always
been understood to entail such authority.” Price, Enforcement
Discretion, at 676. Professor Price has compiled substantial evi-
dence, for instance, (1) that early administrations “terminated
roughly a third of federal prosecutions between 1801 and 1829” via
writs of nolle prosequi, see id. at 724 (citing Statement of Convic-
tions, Executions, and Pardons, H.R. Doc. No. 20-146 (Feb. 26,
1829)); (2) that in 1821 the Attorney General formally opined that
“‘[t]here can be no doubt of the power of the President to order a
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24 NEWSOM, J., Concurring 20-14846
nolle prosequi in any stage of a criminal proceeding in the name of
the United States,’” id. at 725 (quoting Power to Order a Nolle
Prosequi, 5 Op. Att’y Gen. 729, 729 (1821)); and (3) that in 1832 the
Supreme Court dismissed a pending case because the President di-
rected a nol pros, id. at 724–25 (citing United States v. Phillips, 31
U.S. 776, 777 (1832)). 3
3 As should be clear from the material quoted in text, the historical sources
seem to reflect a distinction between ordinary, case-by-case discretionary en-
forcement determinations, which Article II protects, and what I’ll call “pro-
grammatic” non-enforcement, which it does not. The 1689 English Bill of
Rights, for instance, expressly declared “illegal” the “pretended power[s]” of
“suspending” and “dispensing with” parliamentary acts “by regal authority.”
An Act Declaring the Rights and Liberties of the Subject, and Settling the Suc-
cess of the Crown, 1 W. & M., Sess. 2, c. 2 (1689). On this side of the Atlantic,
“several states during the American revolutionary period adopted constitu-
tions including prohibitions on executive suspension of laws,” Price, Enforce-
ment Discretion, at 692 (citing Steven G. Calabresi et al., State Bills of Rights
in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in Amer-
ican History and Tradition?, 85 S. Cal. L. Rev. 1451, 1534–35 (2012)), and “[a]t
the Constitutional Convention, the delegates unanimously rejected a proposal
to grant the President suspending authority,” id. at 693 (citing 1 The Records
of the Federal Convention of 1787, at 103–04 (Max Farrand ed., 1966)). I read-
ily confess, of course, that the distinction between case-by-case and program-
matic non-enforcement could get a little fuzzy at the border, but that doesn’t
render the line illusory. Cf., e.g., Chaney, 470 U.S. at 833 n.4 (noting that while
agency nonenforcement decisions are generally unreviewable, the situation at
issue was not one “where it could justifiably be found that the agency ha[d]
consciously and expressly adopted a general policy that [was] so extreme as to
amount to an abdication of its statutory responsibilities” (quotation marks
omitted)).
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20-14846 NEWSOM, J., Concurring 25
In sum, it seems to me that the Founding-era and early his-
torical evidence strongly indicates that as originally understood,
the Constitution protected private citizens from arbitrary—“tyran-
nical”—exercises of government power, at least in part, by vesting
enforcement discretion in the President and his subordinates.
C
If, as I think the evidence bears out, enforcement discretion
is part and parcel of the “executive Power” vested by Article II in
the President, then it follows, for reasons I explained in Sierra, that
such discretion “can’t be exercised by private parties—including, as
relevant here, private plaintiffs.” 996 F.3d at 1133 (citing Martin v.
Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 329–30 (1816) (Story, J.)). 4
That is true not only for formal, structural reasons—in particular,
Article II’s explicit vesting of federal “executive Power” in the Pres-
ident, see U.S. Const. art. II, § 1—but also instrumental ones.
Scholars—most prominently Tara Grove—have explained that Ar-
ticle II’s Vesting and Take Care Clauses prohibit both Congress and
the President from delegating to private parties discretion over the
4 As I’ve previously explained, I view qui tam actions as an idiosyncratic ex-
ception to the general rule that private parties can’t exercise executive power.
See Sierra, 996 F.3d at 1135. And in any event, it may well be that, as an orig-
inal matter, qui tam actions didn’t present serious Article II problems because
any executive power and discretion exercised by private relators remained
subject to the control of federal district attorneys, who could terminate the
suits at will. See id. at 1135 n.14 (citing Harold J. Krent, Executive Control
Over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L.
Rev. 275, 292–93, 296 (1989)).
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26 NEWSOM, J., Concurring 20-14846
enforcement of federal criminal and civil laws. See Tara Leigh
Grove, Standing as an Article II Nondelegation Doctrine, 11 U. Pa.
J. Const. L. 781, 783–85 (2008). Grove contends that this Article-II-
based nondelegation principle serves, among other objectives, to
“safeguard individual liberty against arbitrary exercises of private
prosecutorial discretion” by ensuring that the awesome power of
law enforcement—the authority to bring suit against anyone, at
any time, anywhere in the country, for any of innumerable ongo-
ing legal violations—is exercised only by actors subject to political
and legal constraints. See id. at 783, 791. Allowing unaccountable
private plaintiffs to exercise enforcement discretion “to pursue the
violators of [their] choice, unencumbered by the legal and practical
checks that constrain public enforcement agencies,” would impli-
cate a “central premise of our constitutional order,” already dis-
cussed in detail—namely, “the need for structural checks against
the exercise of arbitrary power.” Id. at 822, 837 (quotation marks
omitted).
D
Which brings us back to Laufer. Do tester plaintiffs like Lau-
fer proactively exercise law-enforcement discretion in a way that
implicates—and may actually violate—Article II? Do they, in the
TransUnion Court’s words, choose “how to prioritize and how ag-
gressively to pursue legal actions against defendants who violate
the law”? 141 S. Ct. at 2207. It seems to me that they do.
First, and most prominently, a tester like Laufer exercises
executive-style enforcement discretion by freely choosing how
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20-14846 NEWSOM, J., Concurring 27
vigorously the law should be enforced—she can bring one lawsuit,
or a dozen, or hundreds. And there’s no external check on that
choice: There’s no limit to the number of defendants that a tester
can investigate, decide to sue, and (then) obtain the necessary in-
jury from—except her (and her attorneys’) time, will, and money.
For their part, Laufer and her lawyers have opted for an aggressive
enforcement strategy. The record in this case reveals that Laufer
filed more than 50 ADA-related lawsuits in the Northern District of
Florida during 2019 alone. And publicly available docket data re-
veal the breadth of Laufer’s (and her lawyers’) enforcement pro-
gram: Again, from what I can tell, since 2018 Laufer herself has
filed more than 600 suits nationwide—in federal courts in Colo-
rado, Connecticut, the District of Columbia, Florida, Georgia, Illi-
nois, Indiana, Maine, Maryland, Massachusetts, New Jersey, New
York, Ohio, Pennsylvania, Rhode Island, Texas, and Wisconsin.
And Laufer has help: First, Patricia Kennedy, who, like Laufer,
views herself as “an ADA advocate and a ‘tester’” who “monitor[s]”
hotels’ “compliance with” the Act—and who, conspicuously, is of-
ten represented by the same lawyers who represent Laufer—has
filed at least “250 ADA cases in the Southern District of Florida
since . . . October 2018,” and, according to online court records,
many hundreds more in other districts around the country. Ken-
nedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1226 (11th Cir. 2021).
And then there is Owen Harty, who is also represented by the same
lawyers, is also a self-proclaimed “tester” who “monitors whether
places of public accommodation and their websites comply with
the ADA,” Harty v. West Point Realty, Inc., No. 20-2672, 2022 WL
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28 NEWSOM, J., Concurring 20-14846
815685, at * 1 (2d Cir. Mar. 18, 2022), and, according to online rec-
ords, has also filed hundreds of website-related ADA suits across
the country.
Second, and relatedly, a tester like Laufer investigates her
targets first and then selects from among them which to pursue.
During oral argument, for instance, Laufer’s attorney announced
that “we”—by which he presumably meant Laufer, Kennedy, and
the other lawyers in his firm—“do strictly online reservation
cases.” Oral Arg. at 17:11–17:18. His statement speaks volumes
about how tester plaintiffs and their lawyers proactively exercise
executive enforcement discretion. Just as Laufer and her attorneys
only prosecute “online reservation cases,” they could just as easily
exercise enforcement discretion in other ways or to other ends. For
instance, they could opt to prioritize large chain establishments or
hotels in a particular region of the country. They could even single
out a particular hotel or brand that they view as recalcitrant. Alter-
natively, they could target noncompliance with an altogether dif-
ferent ADA provision or regulation. They could opt to go easy on
a hotel that has fallen on hard times or, more perniciously, target
small mom-and-pop establishments that lack the resources to fight
back. Worst of all, a tester or her lawyers could (at least theoreti-
cally) choose among enforcement targets based on arbitrary or dis-
criminatory factors that Executive Branch officials, bound by con-
stitutional and legal strictures, would be barred from considering.
See, e.g., Grove, Standing as Nondelegation, at 798. I don’t mean
to suggest that Laufer and her attorneys have engaged in these
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20-14846 NEWSOM, J., Concurring 29
sorts of case-by-case determinations, for good or ill—only that they
could.
Executive Branch officials make these sorts of discretionary
enforcement judgments every day. In doing so, they carry out the
Framers’ design and check the ambition of potentially overzealous
legislators. And for their choices, they are accountable—both po-
litically, to the voters, and legally, to the Constitution. Unaccount-
able private parties (and their fee-conscious lawyers) have no in-
centive to play that role. By making enforcement decisions that are
not only different from those that Executive Branch officials might
make but are also unchecked by the sorts of political and legal con-
straints that bind government enforcers, private parties may actu-
ally exacerbate the risk of arbitrary power. 5
5 Because Laufer sued (at least in part) under an Attorney-General-promul-
gated regulation, see 28 C.F.R. § 36.501(a), one might argue that Congress
properly authorized the Executive Branch to enforce Title III of the ADA, see
42 U.S.C. § 12188(b) (“Enforcement by the Attorney General”), and that the
Executive Branch, in turn, delegated its enforcement authority to private
plaintiffs by granting them a cause of action. I don’t think so. If, as I contend,
tester-brought lawsuits are an exercise of executive power, then the Attorney
General’s purported delegation is ineffective, because the constitutionally
vested “executive Power” to enforce the law cannot be delegated (abdicated)
to private parties. See supra at 25–26; Grove, Standing as Nondelegation, at
783 (“Article II prohibits Congress and the Executive Branch from delegating
. . . discretionary enforcement authority to private parties . . . .” (emphasis
added)); see also Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.
2183, 2191–92 (2020) (“The President’s power to remove—and thus super-
vise—those who wield executive power on his behalf follows from the text of
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30 NEWSOM, J., Concurring 20-14846
* * *
To sum up, a plaintiff’s suit implicates (and may well violate)
Article II if the plaintiff, in bringing the action, exercises the sort of
broad-ranging enforcement discretion that the Constitution vests
exclusively in Executive Branch officials—if, in the Supreme
Court’s words, she chooses “how to prioritize and how aggres-
sively to pursue legal actions against defendants who violate the
law.” TransUnion, 141 S. Ct. at 2207. 6 Having said that, a caveat:
Just as I acknowledged in Sierra that “re-conceptualizing ‘standing’
Article II, was settled by the First Congress, and was confirmed in the land-
mark decision Myers v. United States, 272 U.S. 52 (1926)”); John F. Manning,
Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 2011
(2011) (noting that with respect to the Vesting Clauses of Articles I, II, and III,
“the careful and intricate design of each branch makes it difficult to think of
the accompanying assignments of power as merely provisional”).
6 To be clear, my concern here isn’t with statutory enactments themselves,
but rather the way that they can be enforced—in particular, by testers. In Si-
erra, I argued that Article II limits Congress’s ability to enact statutes “author-
izing an individual plaintiff to sue for harm done to society generally.” 996
F.3d at 1136 (emphasis added). As already noted, tester plaintiffs like Laufer
at least nominally allege personal injuries—as they must, to obtain conven-
tional Article III standing. The Article II problem arises, I argue, when those
plaintiffs exercise enforcement discretion by proactively manufacturing inju-
ries in order to sue and thereby remedy public wrongs. So, the statutes under
which tester plaintiffs sue aren’t facially unconstitutional, because they validly
apply to plaintiffs seeking redress for private injuries. They are, however, un-
constitutional as applied to tester suits. See, e.g., Harris v. Mexican Specialty
Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009) (noting the question whether
an otherwise valid statute can “be constitutionally applied in [the] particular
circumstances” presented by a specific plaintiff’s suit).
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20-14846 NEWSOM, J., Concurring 31
in Article II terms . . . raise[d] its own set of hard questions,” 996
F.3d at 1139, so it is with this more particular application of Article
II to tester plaintiffs. Here, as there, it won’t always be “self-evident
where proper individual enforcement leaves off and the ‘executive
Power’ begins.” Id. Perhaps the hardest question of all with re-
spect to testers is how to identify them and distinguish them from
conventional, non-tester plaintiffs. I needn’t—and so won’t—at-
tempt to definitively answer that question today. This case is
straightforward: Laufer openly advertises herself as a “tester” and
an “advocate of the rights” of others and admits that she has no
intention ever to patronize the hotels whose policies she is attempt-
ing to change. Even in less obvious cases, it would seem to me
significant—and indicative of tester status—if a plaintiff brought
herself, as Laufer did, to the source of her own injuries in order to
manufacture standing to sue and took actions that she wouldn’t
otherwise have taken but for her desire to advance the rights of
others. In those circumstances—which strongly suggest that the
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32 NEWSOM, J., Concurring 20-14846
plaintiff has exercised executive enforcement discretion—Article II
imposes a real constraint. 7
7 One last thing: Given my conclusion that tester suits like Laufer’s violate
Article II, why am I concurring in, rather than dissenting from, my own opin-
ion for the Court vacating the district court’s dismissal of Laufer’s action? In
short, because I recognize that my own view about how Article II might effec-
tively limit plaintiffs’—and particularly tester plaintiffs’—authority to sue is
not the law. In TransUnion, the Supreme Court observed that a “regime
where Congress could freely authorize unharmed plaintiffs to sue defendants
who violate federal law . . . would infringe on the Executive Branch’s Article
II authority.” 141 S. Ct. at 2207 (emphasis in original). But as my opinion for
the Court in this case explains, I think we’re compelled by existing precedent
to conclude that Laufer has suffered a stigmatic injury. I happen to think that
her suit violates Article II anyway, but I recognize that, at least for now, I am
alone in that view. Moreover, the Supreme Court expressly sanctioned a
tester-brought lawsuit in Havens Realty, 455 U.S. 363. To be sure, Havens
Realty’s standing discussion relied on the now-abrogated proposition that Ar-
ticle III injury “may exist solely by virtue of statutes creating legal rights, the
invasion of which creates standing.” Id. at 373 (quotation mark omitted). But
see TransUnion, 141 S. Ct. at 2205 (“[W]e cannot treat an injury as ‘concrete’
for Article III purposes based only on Congress’s say-so.” (quoting Trichell v.
Midland Credit Mgmt., Inc., 964 F.3d 990, 999 n.2 (11th Cir. 2020))). But the
Supreme Court hasn’t—either in TransUnion or elsewhere—expressly over-
ruled Havens’s approval of tester actions. So even though I think, as a matter
of first principles, Laufer’s suit runs afoul of Article II, there’s no basis in cur-
rent doctrine to so hold.
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20-14846 ED CARNES, J., Concurring 1
ED CARNES, Circuit Judge, concurring:
I concur in the majority opinion, which holds that Laufer
has properly alleged stigmatic injury but correctly states that its
holding “does not prevent the district court from inquiring on re-
mand into the jurisdictional facts underlying Laufer’s alleged in-
jury.” Maj. Op. at 5–6 n.2. Not only is the district court free to
inquire into the jurisdictional facts, it has a duty to do so. See, e.g.,
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[C]ourts, includ-
ing this Court, have an independent obligation to determine
whether subject-matter jurisdiction exists, even in the absence of a
challenge from any party.”); ACLU of Fla., Inc. v. City of Sarasota,
859 F.3d 1337, 1340 (11th Cir. 2017) (noting that a court has an ob-
ligation to inquire into its jurisdiction any time it may be lacking).
Plaintiffs may make factual allegations about a court’s juris-
diction to decide their lawsuits, but they do not make factual find-
ings about it. Courts do. That is why there is a difference in the
procedures used to decide facial and factual questions about juris-
diction. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990) (“Facial attacks on the complaint require the court merely to
look and see if the plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are taken
as true for the purposes of the motion. Factual attacks, on the other
hand, challenge the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings,
such as testimony and affidavits, are considered.”) (cleaned up).
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2 ED CARNES, J., Concurring 20-14846
As the majority opinion instructs, on remand it “remains for
the district court to determine (or, if it has done so already, to clar-
ify) whether, as a factual matter, Laufer has shown that she suffered
the requisite frustration and humiliation as a result of viewing the
Value Inn’s websites.” Maj. Op. at 12. And, by “district court,” we
mean the district court judge, not the jury in a trial presided over
by the judge. See, e.g., ACLU of Fla., Inc., 859 F.3d at 1340 (noting
that “a district court confronted with a factual challenge to its juris-
diction” must “inquire into jurisdiction, including probing into and
resolving any factual disputes which go to its power to adjudicate
the matter”) (cleaned up); Barnett v. Okeechobee Hosp., 283 F.3d
1232, 1237–38 (11th Cir. 2002) (noting that in a “factual attack on
jurisdiction,” where “the very facts providing cause for jurisdiction
are themselves challenged,” the “district court is allowed to con-
sider the facts as it sees fit” and in “essence . . . conducts a bench
trial on the facts that give rise to its subject matter jurisdiction”).
The factual issue relevant to jurisdiction is whether Laufer’s
inability to obtain from the hotel’s website the information she
wanted caused her to suffer emotional distress in the form of hu-
miliation, frustration, and a sense of isolation and segregation,
which she otherwise would not have suffered. Laufer filed an affi-
davit averring that she did suffer those kinds of emotional distress
because she could not obtain from the website information, which
she does not contend would ever be of the slightest practical value
to her personally. It is unlikely that at a hearing on the issue there
will be any witnesses refuting Laufer’s own testimony about how
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20-14846 ED CARNES, J., Concurring 3
she felt and how much, if any, distress she suffered. How could
there be any, since we are talking about what went on inside her
head?
Still, that is not the end of the matter. It isn’t because, as we
have held many times, a district court is not bound to accept as true
a party or other witness’ testimony even if it is unrefuted. See, e.g.,
Hawk v. Olson, 326 U.S. 271, 279 (1945) (“This, of course, does not
mean that uncontradicted evidence of a witness must be accepted
as true on the hearing. Credibility is for the trier of facts.”); Negron
v. City of Miami Beach, 113 F.3d 1563, 1570 (11th Cir. 1997) (noting
that the “district court as factfinder was free to reject” a witness’
“testimony, even if it was uncontradicted”); Burston v. Caldwell,
506 F.2d 24, 26 (5th Cir. 1975) (“The district court, of course, was
not required to accept his testimony, even if uncontradicted.”); Ty-
ler v. Beto, 391 F.2d 993, 995 (5th Cir. 1968) (“Credibility is for the
trier of the facts and the uncontradicted testimony of a witness does
not have to be accepted.”); Slater v. U. S. Steel Corp., 871 F.3d 1174,
1190–91 (11th Cir. 2017) (Carnes, J., concurring) (noting that the
reason a district court need not accept a party’s testimony even if it
is not contradicted by other evidence is that a court “has the au-
thority and responsibility to find the facts and not to blindly accept
testimony”).
Were it otherwise, a plaintiff in this kind of case could al-
ways establish injury by testifying that she suffered in ways that
only she could possibly know or have witnessed. The injury in fact
requirement of standing is not that much of a pushover.