A Standoff: Havens Realty v. Coleman Tester Standing and TransUnion v. Ramirez in the Circuit Courts.

• Author: Cole, Catherine

INTRODUCTION

Two lines of Article III standing law are at odds with each other. Forty years ago, in Havens Realty Corp. v Coleman, (1) the Supreme Court held that a tester had standing for a stigmatic injury due to the violation of a statutory right. (2) Scores of testers have since gotten into federal court for claims of discrimination under laws like the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Fair Housing Act (FHA). This type of tester standing seemed like settled law. But in last term's decision in TransUnion v. Ramirez, (3) the Court reframed Article III standing. Under TransUnion, violations of statutory law are justiciable in federal court only if the violated rights have "a close historical or common-law analogue." (4) Additionally, plaintiffs must have suffered a real, not just legal, harm. (5) Havens Realty's tester standing seems irreconcilable with TransUnion's standing redefinition, yet both remain good law. Now what?

The courts of appeal have begun to venture their guesses. In four near-identical cases in the year following TransUnion, all involving a tester plaintiff suing for online disability accommodations required by the ADA, the circuit courts reached different conclusions. (6) The Second, Fifth, and Tenth Circuits denied standing to their tester plaintiffs, though for different reasons. The Eleventh Circuit concluded the tester plaintiff had standing. While these cases strained to follow both Havens Realty and TransUnion (along with TransUnion's predecessor case, Spokeo v. Robins (7)), none presented a satisfactory theory of standing doctrine that accommodates them both.

This Note analyzes the circuit court split on tester stigmatic injury standing and concludes that the conflict between Havens Realty and TransUnion is untenable. One must bend to the other, if standing law is to be coherent. Part I looks at the circuit court cases that have taken on this conflict, summarizing their decisions and evaluating each court's rationale on its own terms. Part II argues that this collective body of decisions, in failing to harmonize Havens Realty and TransUnion, presents a meaningful problem for standing law. Part III considers options for resolution. Until this conflict is resolved, it will remain unclear what is left standing of tester stigmatic injury claims.

1. TESTER STIGMATIC INJURY STANDING IN THE SECOND, FIFTH, TENTH, AND ELEVENTH CIRCUITS

   Four cases decided on the grounds of standing for tester stigmatic injuries represent circuit courts' different interpretations of TransUnion. The facts of the cases are remarkably alike. In the Fifth, Tenth, and Eleventh Circuits, serial plaintiff Deborah Laufer, a woman with vision, dexterity, and ambulation problems, alleged that various hotels failed to provide online information about accessible rooms and features for disabled people in violation of the ADA and its regulations. (8) In the Second Circuit, plaintiff Owen Harty, a wheelchair-bound man, alleged the same thing of a hotel in New York. (9) While the plaintiffs hinted at possible plans to book rooms for themselves, (10) both self-identified as testers whose primary aim was to verify the hotels' ADA compliance. Both plaintiffs were also represented by the same lawyers. (11) Such are the similarities among these cases that, for the purposes of this Note, they can be considered factually indistinct, which throws the rationales of the four circuit courts into relief. This Part describes and evaluates the reasoning used by each circuit court in turn, beginning with the three circuit courts that did not award standing to their tester plaintiffs.

   All three of the circuits that denied standing for tester stigmatic injury grappled with the tension between Havens Realty and TransUnion, though they split roughly into two camps in terms of how they resolved it. The Tenth Circuit confronted the conflict head-on. It framed TransUnion's main innovation as the repudiation of statutory rights-based standing and thereby concluded that "a violation of a legal entitlement alone is insufficient under Spokeo and TransUnion to establish that Ms. Laufer suffered a concrete injury." (12) Per the Tenth Circuit, Ms. Laufer's complaint alleged only that she was unable to enjoy ADA-created entitlements--that is, that she suffered exactly the sort of mere statutory violation contemplated and rejected by TransUnion. (13) Without more, this deprivation was inadequate to get her into federal court, and Ms. Laufer's case was rightly dismissed.

   The Tenth Circuit then engaged the Havens Realty problem, concluding that Havens Realty was still good law but that it did not apply in Ms. Laufer's case. It stated that the Havens Realty plaintiff was given false information due to her race--a concrete and particularized harm sufficient for Article III standing--whereas Ms. Laufer was simply denied information. (14) As such, the Tenth Circuit concluded that although a Havens Realty-style injury, narrowly defined, would merit standing even after TransUnion because that injury constitutes something more than a statutory violation, the Havens Realty and Laufer cases were distinguishable due to the relative offensiveness of the injuries experienced. On these bases, the Tenth Circuit affirmed the dismissal of Ms. Laufer's claims.

   As a matter of law, this is mystifying. There is no perceptible legal difference between the harms suffered by the Havens Realty plaintiff and Ms. Laufer. The Havens Realty plaintiff was guaranteed "truthful information concerning the availability of housing" by the Fair Housing Act--and was denied it. (15) Ms. Laufer was guaranteed information "[i]dentify[ing] and describing] accessible features in ... hotels and guest rooms" by ADA regulations--and was denied it. (16) Both denials are straightforward statutory violations. To avoid the parallel, the Tenth Circuit invented a distinction. It reported that the Havens Realty injury "was grounded in misrepresentation and racial animus," which was somehow worse than Ms. Laufer's injury in a way that gave rise to Article III standing. (17) It is not evident why this distinction mattered. Is the reason that the offenses of "misrepresentation and racial animus" parallel a historical or common-law harm, which is the plus factor demanded by TransUnion? Probably not, as the purpose of much of the (20)th Century's civil rights legislation was to penalize racial animus where historical causes of action had not. (18) Is it that discriminatory or racist intent creates a real, not just legal, injury? No, because the injury inquiry focuses on effect, not intent. (19) Statutory law makes intent relevant, (20) but considerations of statutory law without more are verboten under the Tenth Circuit's interpretation of TransUnion. Is it something else? If so, the Tenth Circuit did not say. It declared that the injury in Havens Realty was worse and moved on, without any clear legal foundation.

   The Second and Fifth Circuits arrived at the same destination as did the Tenth Circuit by a different route. Both circuits denied standing due to features of the plaintiffs that were intrinsic to their identities as testers and thus seemed to invalidate post- TransUnion tester standing altogether. In contrast to the Tenth Circuit with its focus on TransUnion's overall standing redefinition, the Second Circuit emphasized that TransUnion rejected speculative harm as a possible standing basis. In the Second Circuit's view, the key to the case was that "TransUnion now makes clear that ... mere risk of future harm, standing alone, cannot qualify" as an injury in a suit over a statutory right. (21) The tester plaintiff's lack of plans to visit the hotel himself, a subject which seemed to preoccupy the Second Circuit, thus foreclosed his pathway to standing. (22) Rather than entangle itself with Havens Realty, the Second Circuit relegated Havens Realty to a footnote and ignored the consequences of its TransUnion interpretation for testers as a class.

   The Fifth Circuit similarly jumped on the idea that Ms. Laufer's injury, due to characteristics inherent to tester injuries, was insufficient to get Ms. Laufer into federal court. (23) The court listed Ms. Laufer's fatal flaw as having "visited the [Online Reservation System website] to see if the motel complied with the law, and nothing more." (24) This, of course, is exactly what a tester does. No matter, to the Fifth Circuit. Because Ms. Laufer, like the Second Circuit plaintiff, could not demonstrate that she "even intended to [book a room]," the Fifth Circuit concluded that she had suffered no real injury and that her case was rightly dismissed for lack of standing. In this way, both the Second and Fifth Circuits denied plaintiffs standing due to their natures as testers who court injury for purposes of legal monitoring rather than for their own purposes.

   Mirroring the Second Circuit, the Fifth Circuit dispensed of Havens Realty quickly. It answered the question of whether Havens Realty controlled in the case at issue in a short paragraph with an unsurprising "no." From the Fifth Circuit's perspective, the Havens Realty plaintiff had standing because "the [FHA] forbade misrepresenting [information] to 'any person,' quite apart from whether the tester needed it for some other purpose." (25) In this view, Havens Realty did not recognize standing for testers generally. It recognized standing for the specific Havens Realty plaintiff because she demonstrated the concrete harm of an FHA violation, with her tester status merely incidental to the analysis.

   The Fifth Circuit's reasoning here was erroneous for at least two reasons. For starters, the Havens Realty plaintiff's injury, the misrepresentation, was a statutory violation. If violation of the FHA alone gave rise to Article III standing in Havens Realty, then the hotels' violation of the ADA by withholding accessibility information should have given rise to Ms...