Chapman v. Pier 1 Imports

Filing

FILED OPINION (ALEX KOZINSKI, MARY M. SCHROEDER, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, KIM MCLANE WARDLAW, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, MILAN D. SMITH, JR. and N. RANDY SMITH)Because Chapman lacked standing at the outset of this litigation to assert the ADA claims, the district court should have dismissed them. See Fed. R. Civ. P. 12(b)(1); Hays, 515 U.S. at 747 (ordering the district court to dismiss the complaint for lack of standing). We therefore vacate the district court s grant of summary judgment, and remand with instructions to dismiss Chapman s ADA claim for lack of jurisdiction and for further proceedings consistent with this opinion. VACATED, DISMISSED and REMANDED. Judge: KMW Authoring, Judge: NRS Concurring. FILED AND ENTERED JUDGMENT. [7603240]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



BYRON CHAPMAN,

PIER
PIER

Plaintiff-Appellee,
v.
1 IMPORTS (U.S.) INC., dba
1 IMPORTS #1132,
Defendant-Appellant.




No. 07-16326
D.C. No.
CV-04-01339-LKK
OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted
March 23, 2010—San Francisco, California
Filed January 7, 2011
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Andrew J. Kleinfeld, Barry G. Silverman,
Kim McLane Wardlaw, Richard A. Paez, Marsha S. Berzon,
Johnnie B. Rawlinson, Richard R. Clifton,
Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges.
Opinion by Judge Wardlaw;
Concurrence by Judge N.R. Smith

439

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COUNSEL
Laura M. Franze (argued) and Richard Cortez, Jr., Hunton &
Williams LLP, Dallas, Texas, and Roland M. Juarez, Hunton
& Williams LLP, Los Angeles, California, for the appellant.
Lynn Hubbard III (argued) and Scottlynn J. Hubbard IV
(argued) of the Law Offices of Lynn Hubbard (Chico, California) for the appellee.
Thomas E. Perez, Samuel Bagenstos (argued), Jessica Dunsay
Silver, and Marie K. McElderry of the United States Department of Justice (Washington, D.C.) for amicus the United
States.

OPINION
WARDLAW, Circuit Judge:
Byron Chapman is unable to walk unassisted, and he
requires the use of a motorized wheelchair when traveling in
public. In July 2004, Chapman sued a Pier 1 Imports store
(“Pier One” or “Store”) in Vacaville, California, alleging that
some of the Store’s architectural features denied him full and
equal enjoyment of the premises in violation of the Americans
with Disabilities Act (“ADA”). Chapman requested an injunction requiring the Store to remove the barriers he personally
encountered during his visits to the Store that deprived him of
full and equal enjoyment because of his wheelchair confinement, as well as barriers that he did not personally encounter

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but that might impede his access during future visits due to
his disability. Chapman also requested monetary damages
pursuant to provisions of California law. During discovery,
Chapman testified that he was not deterred by the alleged
ADA violations; rather, Chapman freely acknowledged that
he actually intends to return to the Store, which is located near
his home and offers products he finds desirable.
Chapman’s complaint provided a list of the architectural
barriers existing at the Store, “to the extent known” to him,
some of which he alleged that he had personally encountered.1
More than one year after the complaint was filed, and two
months before the close of discovery, Chapman submitted an
additional report compiled by his expert, Joe Card. The Card
Report identified thirty alleged ADA and CBC violations at
the Store, some of which were listed in the complaint, others
of which were new. The parties cross-moved for summary
judgment. Chapman’s motion papers sought judgment as to
only eleven of the alleged barriers, some of which had been
listed in his complaint and some of which were identified only
in the Card Report. The Store moved for summary judgment
on the grounds that Chapman lacks standing and that the
asserted barriers were not barriers as a matter of law or had
been remedied.
The district court granted Pier One’s motion as to numerous challenged barriers, concluding either that Chapman had
failed to cite any applicable ADA regulation or that the barrier
Chapman identified no longer existed. The court considered
each of Chapman’s eleven claims, including some that were
raised only in the Card Report, finding that Chapman disclosed the violations in sufficient time to permit Pier One to
address them in the context of its summary judgment motion.
The court granted summary judgment to Chapman as to seven
1

Attached as Exhibit A to the complaint was an “Accessibility Survey,”
which listed purported ADA and California Building Code (“CBC”) violations at the Store.

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of the barriers listed solely in the Card Report. The parties
later jointly stipulated to entry of final judgment, subject to
Pier One’s reservation of the right to appeal the grant of summary judgment to Chapman and the denial of its motion to
strike the Card Report.
Pier One timely appealed, challenging, among other things,
the district court’s conclusion that Chapman had standing to
seek an injunction as to barriers he did not personally encounter. A three-judge panel of our court agreed with Pier One,
concluding that Chapman lacked Article III standing as to
barriers he had not personally encountered, because they did
not deter him from returning to the Store. See Chapman v.
Pier 1 Imports (U.S.), Inc., 571 F.3d 853 (9th Cir. 2009)
(withdrawn). We vacated the panel’s decision after a majority
of our court’s non-recused active judges voted to rehear the
appeal en banc to examine the Article III standing doctrine in
the context of actions for injunctive relief under the ADA.
We now clarify that when an ADA plaintiff has suffered an
injury-in-fact by encountering a barrier that deprives him of
full and equal enjoyment of the facility due to his particular
disability, he has standing to sue for injunctive relief as to that
barrier and other barriers related to his disability, even if he
is not deterred from returning to the public accommodation at
issue. First, we hold that an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an
intent to return to a noncompliant facility. Second, we hold
that an ADA plaintiff who establishes standing as to encountered barriers may also sue for injunctive relief as to unencountered barriers related to his disability. Here, however,
Chapman has failed to allege and prove the required elements
of Article III standing to support his claim for injunctive relief
under the ADA. Specifically, he has not alleged or proven that
he personally suffered discrimination as defined by the ADA
as to encountered barriers on account of his disability. We
therefore vacate the district court’s grant of summary judg-

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ment, and remand with instructions to dismiss Chapman’s
ADA claim for lack of jurisdiction and for further proceedings consistent with this opinion.
I.
The ADA was enacted “to provide clear, strong, consistent,
enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Its passage was premised on Congress’s finding that discrimination
against the disabled is “most often the product, not of invidious animus, but rather of thoughtlessness and indifference,”
of “benign neglect,” and of “apathetic attitudes rather than
affirmative animus.”2 Alexander v. Choate, 469 U.S. 287,
295-96 (1985). The concept of “discrimination” under the
ADA does not extend only to obviously exclusionary conduct
— such as a sign stating that persons with disabilities are
unwelcome or an obstacle course leading to a store’s entrance.
Rather, the ADA proscribes more subtle forms of discrimination — such as difficult-to-navigate restrooms and hard-toopen doors — that interfere with disabled individuals’ “full
and equal enjoyment” of places of public accommodation. 42
U.S.C. § 12182(a); see also PGA Tour, Inc. v. Martin, 532
U.S. 661, 674-75 (2001); Alexander, 469 U.S. at 295 (noting
Congress’s conclusion that “we can no longer tolerate the
invisibility of the handicapped in America” (quoting 118
Cong. Rec. 525-26 (1972))).
As defined by the ADA, unlawful “discrimination” occurs
when features of an accommodation
subject an individual or class of individuals on the
2

Although these findings supported the Rehabilitation Act of 1973, Pub.
L. No. 93-112, 87 Stat. 355, “[t]he legislative history of the ADA indicates
that Congress intended judicial interpretation of the Rehabilitation Act be
incorporated by reference when interpreting the ADA.” Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995).

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basis of a disability or disabilities of such individual
or class, directly, or through contractual, licensing,
or other arrangements, to a denial of the opportunity
of the individual or class to participate in or benefit
from the goods, services, facilities, privileges,
advantages, or accommodations of an entity.
42 U.S.C. § 12182(b)(1)(A)(i). In the context of existing facilities, discrimination includes “a failure to remove architectural barriers . . . where such removal is readily achievable.”
Id. § 12182(b)(2)(A)(iv). In the case of newly constructed
facilities, compliance with the ADA’s antidiscrimination
mandate requires that facilities be “readily accessible to and
usable by individuals with disabilities.” Id. § 12183(a)(1).
Whether a facility is “readily accessible” is defined, in part,
by the ADA Accessibility Guidelines (“ADAAG”). See 28
C.F.R. § 36.406(a); 28 C.F.R. pt. 36, app. A; Miller v. Cal.
Speedway Corp., 536 F.3d 1020, 1024-25 (9th Cir. 2008)
(describing the ADA’s regulatory framework), cert. denied,
129 S. Ct. 1349 (2009). Promulgated by the Attorney General
to “carry out the provisions” of the ADA, 42 U.S.C.
§ 12186(b), these guidelines “lay out the technical structural
requirements of places of public accommodation.” Fortyune
v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir.
2004); see also Indep. Living Res. v. Or. Arena Corp., 982 F.
Supp. 698, 714 (D. Or. 1997) (“The regulations establish a
national standard for minimum levels of accessibility in all
new facilities.”). The ADAAG provides the objective contours of the standard that architectural features must not
impede disabled individuals’ full and equal enjoyment of
accommodations. See Pascuiti v. N.Y. Yankees, 87 F. Supp. 2d
221, 225 (S.D.N.Y. 1999) (quoting a letter in which the
Department of Justice stated that it “consider[ed] any element
in a facility that does not meet or exceed the requirements set
forth in the [ADAAG] to be a barrier to access”). We have
held that “obedience to the spirit of the ADA” does not
excuse noncompliance with the ADAAG’s requirements. See

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Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir.
2001). The ADAAG’s requirements are as precise as they are
thorough, and the difference between compliance and noncompliance with the standard of full and equal enjoyment
established by the ADA is often a matter of inches. E.g.,
ADAAG § 4.16.4 (requiring grab bar behind water closets to
be at least thirty-six inches long); id. § 4.19.6 (“Mirrors shall
be mounted with the bottom edge of the reflecting surface no
higher than 40 in (1015 mm) above the finish floor . . . .”).
[1] Though its purpose is “sweeping,” PGA Tour, 532 U.S.
at 675, and its mandate “comprehensive,” 42 U.S.C.
§ 12101(b)(1), the ADA’s reach is not unlimited. Rather, as
with other civil rights statutes, to invoke the jurisdiction of the
federal courts, a disabled individual claiming discrimination
must satisfy the case or controversy requirement of Article III
by demonstrating his standing to sue at each stage of the litigation. See U.S. Const. art. III, § 2; Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); Fortyune, 364 F.3d at
1081 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 101
(1983)). As the Supreme Court has stated, “It goes without
saying that those who seek to invoke the jurisdiction of the
federal courts must satisfy the threshold requirements
imposed by Article III of the Constitution by alleging an
actual case or controversy.” Lyons, 461 U.S. at 101; see also
D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031,
1036 (9th Cir. 2008) (“A party invoking federal jurisdiction
has the burden of establishing that it has satisfied the ‘case-orcontroversy’ requirement of Article III of the Constitution;
standing is a ‘core component’ of that requirement.” (quoting
Lujan, 504 U.S. at 560)). Given these principles, we are also
mindful that the “Supreme Court has instructed us to take a
broad view of constitutional standing in civil rights cases,
especially where, as under the ADA, private enforcement
suits ‘are the primary method of obtaining compliance with
the Act.’ ” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th
Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409
U.S. 205, 209 (1972)).

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II.
[2] Under the oft-repeated standing formulation, Chapman
must demonstrate that he has suffered an injury-in-fact, that
the injury is traceable to the Store’s actions, and that the
injury can be redressed by a favorable decision. See Fortyune,
364 F.3d at 1081. In addition, to establish standing to pursue
injunctive relief, which is the only relief available to private
plaintiffs under the ADA,3 he must demonstrate a “real and
immediate threat of repeated injury” in the future. Id. (quoting
O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). As the threejudge panel observed, the causation and redressability elements of standing are not at issue in this appeal. Chapman,
571 F.3d at 857. Therefore, our standing inquiry focuses on
the legal standards governing whether Chapman has suffered
an injury-in-fact and whether he has demonstrated a likelihood of future injury sufficient to support injunctive relief.
The original panel concluded that Chapman did not suffer an
injury-in-fact as to unencountered accessibility barriers
because the barriers he did encounter did not deter him from
returning to the Store. Id. at 854. This conclusion was a misapplication of the deterrent effect doctrine and reflected a
misapprehension of its relationship to fundamental standing
principles.
A.
The existence of federal standing “often turns on the nature
and source of the claim asserted.” Warth v. Seldin, 422 U.S.
490, 500 (1975). Accordingly, our standing analysis must
focus on the nature and source of Chapman’s claim — discrimination as defined by the ADA. Under the ADA, when a
disabled person encounters an accessibility barrier violating
3

42 U.S.C. § 12188(a)(1) affords private plaintiffs the remedies provided under the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(a). Damages may be awarded to aggrieved individuals when requested in suits
brought by the Attorney General. See id. § 12188(b)(2)(B).

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its provisions, it is not necessary for standing purposes that
the barrier completely preclude the plaintiff from entering or
from using a facility in any way. See Doran, 524 F.3d at 1041
n.4 (stating that the ADA “does not limit its antidiscrimination mandate to barriers that completely prohibit access”).
Rather, the barrier need only interfere with the plaintiff’s “full
and equal enjoyment” of the facility. 42 U.S.C. § 12182(a).
As we stated in Doran,
Once a disabled individual has encountered or
become aware of alleged ADA violations that deter
his patronage of or otherwise interfere with his
access to a place of public accommodation, he has
already suffered an injury in fact traceable to the
defendant’s conduct and capable of being redressed
by the courts, and so he possesses standing under
Article III . . . .
Doran, 524 F.3d at 1042 n.5.
[3] Of course, a “barrier” will only amount to such interference if it affects the plaintiff’s full and equal enjoyment of
the facility on account of his particular disability. Because the
ADAAG establishes the technical standards required for “full
and equal enjoyment,” if a barrier violating these standards
relates to a plaintiff’s disability, it will impair the plaintiff’s
full and equal access, which constitutes “discrimination”
under the ADA. That discrimination satisfies the “injury-infact” element of Lujan. As we have held, once a disabled
plaintiff has encountered a barrier violating the ADA, “that
plaintiff will have a ‘personal stake in the outcome of the controversy’ so long as his or her suit is limited to barriers related
to that person’s particular disability.”4 Id. at 1044.
4

The concurrence fails to recognize that a plaintiff’s standing to claim
an ADA violation is necessarily linked to the nature of his disability. We
recognize that an encountered barrier must interfere with the particular
plaintiff’s full and equal enjoyment of the facility, making his use of the

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Following this principle, the original three-judge panel recognized that Chapman’s initial encounter with accessibility
barriers at the Store constituted an injury-in-fact.5 The now
withdrawn panel opinion stated, “It is clear that Chapman had
standing to sue Pier 1 Imports for not complying with the
ADA with respect to the . . . barriers he claimed to have
encountered.” Chapman, 571 F.3d at 857. Although encounters with the noncompliant barriers related to one’s disability
are sufficient to demonstrate an injury-in-fact for standing
purposes, a plaintiff seeking injunctive relief must additionfacility more difficult than a nondisabled individual’s, to constitute an
injury-in-fact, and that he is required to allege and prove that injury. Thus,
a blind person would have standing to assert an ADA violation where a
newly constructed multi-story facility has elevators lacking floor buttons
in Braille, while Chapman, who we assume can see and press the floor
buttons, would not. See, e.g., ADAAG § 4.10.12(2) (requiring that “[a]ll
control buttons shall be designated by Braille and by raised standard
alphabet characters for letters, arabic characters for numerals, or standard
symbols”). Where the barrier is related to the particular plaintiff’s disability, however, an encounter with the barrier necessarily injures the plaintiff
by depriving him of full and equal enjoyment of the facility. See, e.g.,
Doran, 524 F.3d at 1044 n.7 (stating that a wheelchair-bound plaintiff cannot challenge all accessibility barriers, but only those affecting mobility);
accord Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000) (finding
that a disabled plaintiff who was not blind “is not ‘among the injured’ with
regard to ADA violations in the building that do not affect the blind,” and
that he therefore did not have standing as to those violations).
5
That opinion’s author now disagrees with this well-established principle, but it is far from clear what the concurrence actually would require
instead, given the ADA’s structure. A disabled person who encounters a
“barrier,” i.e., an architectural feature that fails to comply with an
ADAAG standard relating to his disability, suffers unlawful discrimination as defined by the ADA. 42 U.S.C. § 12182(b)(1)(A)(i). Indeed, by
“establish[ing] a national standard for minimum levels of accessability in
all new facilities,” Indep. Living Res., 982 F. Supp. at 714, the ADAAG
removes the risk of vexatious litigation that a more subjective test would
create. Those responsible for new construction are on notice that if they
comply with the ADAAG’s objectively measurable requirements, they
will be free from suit by a person who has a particular disability related
to that requirement.

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ally demonstrate “a sufficient likelihood that he will again be
wronged in a similar way.” Lyons, 461 U.S. at 111. That is,
he must establish a “real and immediate threat of repeated
injury.” Id. at 102 (quoting O’Shea, 414 U.S. at 496). For
instance, in Fortyune, a quadriplegic plaintiff sued to enjoin
a movie theater’s ongoing seating policy that failed to ensure
that wheelchair-bound patrons could sit next to their companions or aides during sold-out shows. Fortyune, 364 F.3d at
1078-79.
Fortyune required both a wheelchair and an aide to attend
movies at the theater. Thus, to have full and equal access to
the movie theater he needed to have available a “companion
seat” for his aide (in his case, his wife) next to which he could
situate his wheelchair. He suffered an injury-in-fact when he
and his wife attempted to see an AMC movie, but were prevented from doing so, because the companion seats were
occupied by nondisabled patrons whom the manager refused
to move on the basis of a company-wide policy governing the
use of wheelchair companion seats at sold-out screenings. We
noted that, while “past wrongs do not in themselves amount
to [a] real and immediate threat of injury necessary to make
out a case or controversy, past wrongs are evidence bearing
on whether there is a real and immediate threat of repeated
injury.” Id. at 1081 (internal quotation marks and citation
omitted) (alteration in original). Because Fortyune attended
three or four movies per week with a companion, id. at 1079,
and the theater’s discriminatory seating policy was ongoing,
we concluded that Fortyune established “a ‘real and immediate threat’ that the injury will be repeated” sufficient to permit
him to pursue injunctive relief. Id. at 1081; see also id. at
1082 (“[T]he possibility of his injury recurring cannot be said
to be so remote as to preclude standing.”); Pickern v. Holiday
Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002)
(“[A] plaintiff who is threatened with harm in the future
because of existing . . . noncompliance with the ADA suffers
‘imminent injury.’ ”).

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Other circuits also recognize that an ADA plaintiff demonstrates a sufficient likelihood of future harm to establish
standing to sue for an injunction when he intends to return to
a noncompliant place of public accommodation where he will
likely suffer repeated injury. In Disabled Americans for Equal
Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60 (1st Cir.
2005), a wheelchair-bound individual sued the operator of a
cruise ship, alleging that he was subjected to discrimination
and was likely to suffer discrimination in the future because
accessibility barriers on the defendant’s vessel denied him full
and equal enjoyment of its goods, services, and other privileges. Id. at 62-63. The First Circuit concluded that the plaintiff had standing to pursue injunctive relief, noting that the
plaintiff alleged an intent to return to the vessel notwithstanding its noncompliance with the ADA, and that unless the barriers were removed, his ability to use the accommodations
would be compromised and his safety would be endangered.
Id. at 64-65.
Similarly, in Camarillo v. Carrols Corp., 518 F.3d 153 (2d
Cir. 2008), a blind woman sued the owner of several fast-food
restaurants, alleging that she was subjected to unlawful discrimination under the ADA when the restaurants failed to
communicate their menu items to her effectively. Id. at 154,
156. The Second Circuit held that Camarillo had standing to
sue for injunctive relief because “(1) she has alleged past
injury under the ADA (namely, defendants’ discriminatory
failure to ensure effective communication of their menu
items); (2) it is reasonable to infer from her complaint that
this discriminatory treatment will continue; and (3) it is also
reasonable to infer, based on the past frequency of her visits
and the proximity of defendants’ restaurants to her home, that
Camarillo intends to return to these restaurants in the future.”
Id. at 158.
[4] These opinions reflect first principles: It is well settled
that a plaintiff need not “await the consummation of threatened injury to obtain prospective relief.” Farmer v. Brennan,

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511 U.S. 825, 845 (1994) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)); see also Lewis v. Casey,
518 U.S. 343, 349 (1996) (“It is the role of courts to provide
relief to claimants . . . who have suffered, or will imminently
suffer, actual harm . . . .”). Rather than contending with discriminatory barriers due to his related disability when he
returns to a public accommodation, a plaintiff may seek a
judicial order requiring their removal. Article III, however,
requires a sufficient showing of likely injury in the future
related to the plaintiff’s disability to ensure that injunctive
relief will vindicate the rights of the particular plaintiff rather
than the rights of third parties.6
B.
Demonstrating an intent to return to a noncompliant accommodation is but one way for an injured plaintiff to establish
Article III standing to pursue injunctive relief. A disabled
individual also suffers a cognizable injury if he is deterred
from visiting a noncompliant public accommodation because
he has encountered barriers related to his disability there.
We first recognized that the “deterrent effect doctrine” may
confer standing in Pickern. There, the plaintiff had encountered accessibility barriers on past visits to the Paradise market, which deterred him from returning to the market even
though he preferred to shop there. Pickern, 293 F.3d at 1135.
Because the plaintiff’s initial encounter with the barriers had
occurred outside the relevant statute of limitations, the injury
inflicted by that encounter did not confer standing to sue. We
6

See, e.g., Hoepfl v. Barlow, 906 F. Supp. 317, 322-23 (E.D. Va. 1995)
(concluding plaintiff lacked standing to sue for injunctive relief where she
challenged a doctor’s refusal to treat her but was no longer in need of
medical services and she had moved to another state); Atakpa v. Perimeter
OB-GYN Assocs., 912 F. Supp. 1566, 1573-74 (N.D. Ga. 1994) (concluding plaintiff lacked standing where she challenged discriminatory prenatal
HIV testing and failed to demonstrate that she would ever seek services
from the health provider in the future).

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nevertheless concluded that the plaintiff had Article III standing because “a disabled individual who is currently deterred
from patronizing a public accommodation due to a defendant’s failure to comply with the ADA has suffered ‘actual
injury’ ” for standing purposes. Id. at 1138. Although the
plaintiff was unlikely to return to the market while the barriers
remained, given that he “would shop at the Paradise market
if it were accessible,” the threat of injury was sufficiently
“imminent” to permit him to sue for injunctive relief. Id.
We reaffirmed the deterrent effect doctrine in Doran. In
Doran, the plaintiff
alleged that he had visited the 7-Eleven store on ten
to twenty prior occasions, that he is currently
deterred from visiting the store because of its accessibility barriers, that the store is conveniently located
near his favorite fast food restaurant in Anaheim,
and that he plan[ned] to visit Anaheim at least once
a year on his annual trips to Disneyland.
Doran, 524 F.3d at 1040. Because the plaintiff was deterred
from visiting the store, we concluded that there was “an actual
or imminent threat that, during his planned future visits to
Anaheim, [he] will suffer harm as a result of the alleged barriers,” and we found standing to pursue injunctive relief. Id. at
1041.
[5] Thus, an ADA plaintiff can show a likelihood of future
injury when he intends to return to a noncompliant accommodation and is therefore likely to reencounter a discriminatory
architectural barrier. Alternatively, a plaintiff can demonstrate
sufficient injury to pursue injunctive relief when discriminatory architectural barriers deter him from returning to a noncompliant accommodation. Just as a disabled individual who
intends to return to a noncompliant facility suffers an imminent injury from the facility’s “existing or imminently threatened non-compliance with the ADA,” a plaintiff who is

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deterred from patronizing a store suffers the ongoing “actual
injury” of lack of access to the store. Pickern, 293 F.3d at
1138. That is, an ADA plaintiff suffers an injury-in-fact either
because discriminatory architectural barriers deter him from
returning to a facility or because they “otherwise interfere
with his access to” the facility. Doran, 524 F.3d at 1042 n.5.
Thus, we have Article III jurisdiction to entertain requests for
injunctive relief both to halt the deterrent effect of a noncompliant accommodation and to prevent imminent “discrimination,” as defined by the ADA, against a disabled individual
who plans to visit a noncompliant accommodation in the
future.
III.
[6] Once a plaintiff establishes Article III standing, there
remains the question of the scope of his standing. See Doran,
524 F.3d at 1042. As we have explained, “This question
requires us to consider the precise nature and scope of the
injury that [Chapman] and similarly situated plaintiffs have
suffered when they encounter . . . architectural barriers violative of the ADA.” Id. Because the parties dispute the legal
rule governing this question, we address it here.
[7] We have held that “[a]n ADA plaintiff who has Article
III standing as a result of at least one barrier at a place of public accommodation may, in one suit, permissibly challenge all
barriers in that public accommodation that are related to his
or her specific disability.” Id. at 1047.7 Under Doran, Chapman need not have personally encountered all the barriers that
impede his access to the Store in order to seek an injunction
7

Though Doran involved the deterrent effect doctrine, the Doran court
did not limit the applicability of this rule to cases where standing is predicated upon deterrence as opposed to imminently threatened injury. See
Doran, 524 F.3d at 1042 (“[I]t is not an essential prerequisite of an ADA
plaintiff’s standing that he prove that deterrence caused by previously
encountered violations was the reason that a particular violation was not
discovered and hence alleged in his complaint.”).

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to remove those barriers. See Pickern, 293 F.3d at 1138. If
Chapman has standing to pursue injunctive relief as to some
of the barriers that he actually encountered, then he has standing to seek an order requiring the removal of all barriers at the
Store that are related to his disability and that he is likely to
encounter on future visits. Doran, 524 F.3d at 1047.
[8] The rule in Doran is a direct application of the statute.
The ADA’s remedial scheme is not limited to orders for the
removal of encountered barriers, but instead dictates that “injunctive relief shall include an order to alter facilities to make
such facilities readily accessible to and usable by individuals
with disabilities.” 42 U.S.C. § 12188(a)(2); see also Doran,
524 F.3d at 1043. The ability to pursue this relief extends to
“any person who is being subjected to discrimination on the
basis of disability in violation of this subchapter or who has
reasonable grounds for believing that such person is about to
be subjected to discrimination.” 42 U.S.C. § 12188(a)(1). The
statute provides that “[n]othing in this section shall require a
person with a disability to engage in a futile gesture if such
person has actual notice that a person or organization covered
by this subchapter does not intend to comply with its provisions.” Id. Thus, the ADA specifically does not require that
the disabled individual personally encounter each architectural barrier as a predicate to seeking its removal.
We explained in Doran that our holding was “fully consistent with the Supreme Court’s Article III standing discourse.”
Doran, 524 F.3d at 1044. Indeed, our analysis simply applied
the standing framework established in Lujan. In Lujan, there
was no dispute that the plaintiffs had not suffered a past injury
from the administrative rule they challenged. The Court concluded the plaintiffs lacked Article III standing only because
the threat of future harm was too remote to constitute an
imminent injury. Lujan, 504 U.S. at 564. Had the prospect of
future injury been more concrete, the absence of a past injury
resulting from the rule’s application would not have precluded
Article III standing. Id. at 564 n.2; see also Pickern, 293 F.3d

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at 1138 (“[A] plaintiff who is threatened with harm in the
future because of existing or imminently threatened noncompliance with the ADA suffers ‘imminent injury.’ ”).
[9] An ADA challenge to unencountered barriers does not
implicate the prohibition on generalized grievances, or violate
prudential standing principles, by raising the rights of third
parties rather than the rights of the individual plaintiff. We
stated in Doran that “[e]ven if a disabled plaintiff did not
know about certain barriers when the plaintiff first filed suit,
that plaintiff will have a ‘personal stake in the outcome of the
controversy’ so long as his or her suit is limited to barriers
related to that person’s particular disability.” Doran, 524 F.3d
at 1044. We recognized that “it is ultimately misleading to
conceptualize each separate architectural barrier inhibiting a
disabled person’s access to a public accommodation as a separate injury that must satisfy the requirements of Article III.”
Id. at 1042. Rather, the injury suffered by disabled plaintiffs
is the “discrimination” under the ADA that results from an
accommodation’s “failure to remove architectural barriers.”
Id. at 1043 (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)). In
Doran, this injury was suffered “the first time [the plaintiff]
encountered architectural barriers,” and it continued even
after some of the barriers were corrected because “others
remained in place that would have interfered with his access
as a wheelchair user.” Id. at 1042-43. We held that “a constricted reading of the ADA,” such as requiring an encounter
with each alleged barrier, “could render the benefits [the
ADA] promises largely illusory.” Id. at 1047.
Moreover, “a rule limiting a plaintiff to challenging the barriers he or she had encountered . . . would burden businesses
and other places of public accommodation with more ADA
litigation, encourage piecemeal compliance with the ADA,
and ultimately thwart the ADA’s remedial goals of eliminating widespread discrimination against the disabled and integrating the disabled into the mainstream of American life.” Id.
Noting the “broad view” of standing that applies in the con-

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text of remedial civil rights legislation, as well as the scope
of injunctive relief provided by the ADA, id. at 1043-44, we
held that an ADA plaintiff who has standing to sue because
he has been discriminated against in one aspect of a public
accommodation may, in one lawsuit, obtain an injunction to
prevent impending discrimination throughout the accommodation, id. at 1047.
[10] The Store asks us to overturn our precedent on this
point, arguing that each architectural barrier in a public
accommodation be treated as a separate injury in the standing
inquiry. We decline to do so. The Store’s conception of a cognizable “injury” under the ADA mistakes the statute’s forest
for its trees by focusing on individual barriers instead of
access to places of public accommodation. An ADA plaintiff
suffers a legally cognizable injury under the ADA if he is
“discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, [or] facilities . . . of
any place of public accommodation.” 42 U.S.C. § 12182(a).
This experience of discrimination confers standing to seek the
remedy provided by the ADA — an injunction to correct the
other, albeit unencountered, barriers that will subject a
wheelchair-bound individual like Chapman to future discrimination, provided that the threat of such discrimination is real
and immediate.
The only other circuit to have considered the question
agrees with our conclusion that an ADA plaintiff may, in one
lawsuit, pursue an injunction to remove all accessibility barriers related to his disability that he is likely to encounter at a
place of public accommodation to which he intends to return.
See Steger, 228 F.3d at 894. In Steger, a blind individual was
unable to locate the men’s restroom on the first floor of an
office building because it lacked signage with raised lettering.
Id. at 891-92. The plaintiff sought an injunction to address
barriers related to his disability that existed throughout the
building, including not only the inadequate signage for the
men’s restroom on the first floor, but also for unencountered

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barriers, including an elevator that lacked audible signals and
numerous other doors that lacked raised-letter signs. Id. at
893. The building’s owner argued that the plaintiff’s injury
was limited to the first floor restroom and he lacked standing
as to any other barriers. The Eighth Circuit rejected the defendant’s narrow construction of the plaintiff’s injury, concluding that the plaintiff “need not encounter all of these barriers
to obtain effective relief.” Id. at 894. Recognizing that, under
the ADA, “injunctive relief is mandated to ‘make such facilities readily accessible to and usable by individuals with disabilities,’ ” the Eighth Circuit concluded that Steger had
standing to seek relief for any ADA violations in the building
that affected his specific disability. Id. (quoting 42 U.S.C.
§ 12188(a)(2)). We share the Eighth Circuit’s view that an
ADA plaintiff who has been discriminated against in one
aspect of a public accommodation may, in a single lawsuit,
obtain an injunction to prevent impending discrimination on
account of his specific disability throughout the accommodation.
[11] This conclusion does not transform the ADA into an
open-ended private attorney general statute, because the scope
of such an injunction is limited. First, our holding in no way
relieves plaintiffs from the constitutionally imposed burden of
demonstrating an injury-in-fact and a sufficient likelihood of
repeated harm. An ADA plaintiff must show at each stage of
the proceedings either that he is deterred from returning to the
facility or that he intends to return to the facility and is therefore likely to suffer repeated injury. He lacks standing if he
is indifferent to returning to the store or if his alleged intent
to return is not genuine, or if the barriers he seeks to enjoin
do not pose a real and immediate threat to him due to his particular disability. Injunctions do not extend to barriers not
affecting persons with the plaintiff’s particular disability, see
Steger, 228 F.3d at 893-94; barriers that the plaintiff is not
reasonably likely to encounter, such as those in areas off limits to customers, see Long, 267 F.3d at 924; or barriers in

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areas he is unlikely to enter, such as ladies’ restrooms or
employee work areas.
Second, in declining to overturn Doran, we do not expand
or otherwise modify Congress’s considered choice as to the
rights or remedies available to the disabled. As noted above,
our precedent is anchored in Congress’s decision to authorize
courts to issue “order[s] to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12188(a)(2).
Finally, we are not persuaded by Pier One’s warning that
Doran opens the floodgates to “potentially vexatious lawsuits.” Instead, our precedent facilitates ADA compliance by
eliminating the piecemeal litigation that would result from the
contrary rule Pier One urges. As we have previously
observed, “It makes no sense to require a disabled plaintiff to
challenge, in separate cases, multiple barriers in the same
facility, controlled by the same entity, all related to the plaintiff’s specific disability.” Doran, 524 F.3d at 1047.
[12] Our reaffirmance of Doran is entirely consistent with
our standing discourse. When a plaintiff “has encountered or
become aware of alleged ADA violations that deter his
patronage of or otherwise interfere with his access to a place
of public accommodation, he has . . . suffered an injury in
fact.” Id. at 1042 n.5. The threat of repeated injury in the
future is “real and immediate” so long as the encountered barriers either deter him from returning or continue to exist at a
place of public accommodation to which he intends to return.
When discrimination under the ADA subjects the plaintiff to
an injury-in-fact, injunctive relief addressing only the barriers
that the plaintiff encountered, but ignoring other existing barriers that he is reasonably likely to encounter, fails to dissipate
the real and immediate threat of future discrimination.
IV.
[13] Throughout this litigation Chapman has failed to
allege and prove the elements of standing in the ADA context

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that we describe above. Chapman’s complaint itself is jurisdictionally defective. Although Pier One failed to move to
dismiss under Federal Rule of Civil Procedure 12(b)(1),
“[f]ederal courts are required sua sponte to examine jurisdictional issues such as standing.” Bernhardt v. County of Los
Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (internal quotation
marks omitted); accord United States v. Hays, 515 U.S. 737,
742 (1995). The existence of Article III standing is not subject
to waiver. Hays, 515 U.S. at 742. It must be demonstrated “at
the successive stages of the litigation,” Lujan, 504 U.S. at
561, and “[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action,”
Fed. R. Civ. P. 12(h)(3). “[E]very federal appellate court has
a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under
review.’ ” Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237,
244 (1934)).
[14] While we are mindful of the generous pleading standards that apply to civil rights plaintiffs, “a liberal interpretation of a . . . civil rights complaint may not supply essential
elements of the claim that were not initially pled.” Pena v.
Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (quoting Ivey v.
Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). Chapman’s complaint fails to sufficiently allege the essential elements of Article III standing. Although Chapman alleges that
he is “physically disabled,” and that he “visited the Store” and
“encountered architectural barriers that denied him full and
equal access,” he never alleges what those barriers were and
how his disability was affected by them so as to deny him the
“full and equal” access that would satisfy the injury-in-fact
requirement (i.e., that he personally suffered discrimination
under the ADA on account of his disability).
Instead, Chapman attached to his complaint an “Accessibility Survey,” which listed barriers known to him that he claims
“denied him access to the Store, or which he seeks to remove

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on behalf of others under related state statutes.” The Accessibility Survey simply identifies alleged ADA and CBC violations without connecting the alleged violations to Chapman’s
disability, or indicating whether or not he encountered any
one of them in such a way as to impair his full and equal
enjoyment of the Store.
The nature of the entries in the Accessibility Survey is
illustrated by the entry for “Accessible Entrance Door Outside
Signage.” Below that heading is listed:

This list of alleged CBC and ADAAG violations8 cannot substitute for the factual allegations required in the complaint to
satisfy Article III’s requirement of an injury-in-fact. Chapman
does not even attempt to relate the alleged violations to his disability.9
Unlike in other cases where we have found Article III
standing, see, e.g., D’Lil, 538 F.3d at 1037, Chapman leaves
the federal court to guess which, if any, of the alleged viola8

It bears noting that some of the listings in the Accessibility Survey,
such as signage above the panic bar, do not even allege violations of the
ADAAG; instead, they merely recite portions of the ADAAG’s requirements. This is insufficient to allege discrimination under the ADA.
9
The Supreme Court’s recent decision in Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009), supports this conclusion. Chapman’s allegation that the barriers at the Store “denied him full and equal enjoyment” is precisely the
“formulaic recitation” of the elements of a claim that the Supreme Court
has deemed insufficient under Rule 8. Id. at 1949. To sufficiently allege
standing, Chapman must do more than offer “labels and conclusions” that
parrot the language of the ADA. Id.

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tions deprived him of the same full and equal access that a
person who is not wheelchair bound would enjoy when shopping at Pier One. Nor does he identify how any of the alleged
violations threatens to deprive him of full and equal access
due to his disability if he were to return to the Store, or how
any of them deter him from visiting the Store due to his disability. Although Chapman may establish standing as to unencountered barriers related to his disability, the list of barriers
incorporated into his complaint does nothing more than “perform a wholesale audit of the defendant’s premises.” Martinez
v. Longs Drug Stores, Inc., No. CIV-S-03-1843 DFL CMK,
2005 U.S. Dist. LEXIS 23737, at *12 (E.D. Cal. Aug. 25,
2005).10
[15] Because Chapman lacked standing at the outset of this
litigation to assert the ADA claims, the district court should
have dismissed them. See Fed. R. Civ. P. 12(b)(1); Hays, 515
U.S. at 747 (ordering the district court to dismiss the complaint for lack of standing). We therefore vacate the district
court’s grant of summary judgment, and remand with instructions to dismiss Chapman’s ADA claim for lack of jurisdiction and for further proceedings consistent with this opinion.11
VACATED, DISMISSED and REMANDED.

10

It is for the same reason that the Card Report does not supply the
“injury-in-fact” element, even if it had been properly filed as part of an
amended complaint. It, too, does nothing more than to list additional CBC
and ADAAG provisions that the Store allegedly violated.
11
Because we reverse the district court’s Article III standing determination, we need not address the remaining issues on appeal.

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N.R. SMITH, Circuit Judge, concurring in the judgment,
joined by RAWLINSON, Circuit Judge:
I concur in the majority’s conclusion that Chapman failed
procedurally to demonstrate standing to maintain this action.
However, I disagree with the majority’s analysis in reaching
its conclusion and believe it expands standing for ADA plaintiffs beyond the constitutional confines of Article III.
I.

Standing under the Americans with Disabilities Act of
1990

The Supreme Court has not equivocated regarding the
importance of standing within the federal courts. “No principle is more fundamental to the judiciary’s proper role in our
system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.”
Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 37
(1976). The Article III requirement of standing is “essential
and unchanging.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). At an irreducible constitutional minimum, an
Americans with Disabilities Act of 1990 (“ADA”) plaintiff
must establish standing by showing (1) he or she has suffered
an “injury in fact;” (2) there is “a causal connection between
the injury” and the defendant’s complained-of conduct; and
(3) it is likely “that the injury will be redressed by a favorable
decision.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th
Cir. 2008) (citing Lujan, 504 U.S. at 560-61). Even if a claim
satisfies the three elements of standing to sue for past illegal
conduct, to sustain standing for injunctive relief, a claimant
must also establish a “ ‘real and immediate threat of repeated
injury.’ ” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075,
1081 (9th Cir. 2004) (quoting O’Shea v. Littleton, 414 U.S.
488, 496 (1974)).
A.

Encountered Barriers

In the ADA, Congress created a cause of action for disabled persons who experience discrimination through archi-

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tectural barriers. 42 U.S.C. § 12101(a)(5). “Congress may
enact statutes creating legal rights, the invasion of which
creates standing, even though no injury would exist without
the statute.” Linda R. S. v. Richard D., 410 U.S. 614, 617 n.3
(1973). This principle reflects Congress’s ability to elevate
“de facto injuries,” otherwise not actionable at common law,
into “legally cognizable injuries.” Lujan, 504 U.S. at 578. For
example, the Civil Rights Act of 1968 elevated an individual’s “personal interest in living in a racially integrated community” to a cognizable legal injury if a private party denied
that interest. Id. (citing Trafficante v. Metro. Life Ins. Co., 409
U.S. 205, 208-12 (1972)). However, “broadening of the categories of injury that may be alleged in support of standing is
a different matter from abandoning the requirement that the
party seeking review must himself have suffered an injury.”
Id. (quoting Sierra Club v. Morton, 405 U.S. 727, 738 (1972))
(quotation marks and alteration omitted).
Under the above articulated requirements for standing, I
agree fully with the majority’s ultimate holding that:
Chapman leaves the federal court to guess which, if
any, of the alleged violations deprived him of the
same full and equal access that a person who is not
wheelchair bound would enjoy when shopping at
Pier One. Nor does he identify how any of the
alleged violations threatens to deprive him of full
and equal access due to his disability if he were to
return to the Store, or how any of them deter him
from visiting the Store due to his disability.
Maj. Op. at 463-64. Requiring that an ADA plaintiff plead
and prove that a barrier affects him by making access or
enjoyment of a facility more difficult for him than for a nondisabled person satisfies Article III’s requirement that an
injury affect a “plaintiff in a personal and individual way.”
Lujan, 504 U.S. at 560 n.1. However, I must disagree with the
majority’s statement that “[w]here the [ADAAG defined] bar-

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rier is related to the particular plaintiff’s disability, . . . an
encounter with the barrier necessarily injures the plaintiff by
depriving him of full and equal enjoyment of the facility.”
Maj. Op. at 450-51 n.4. In this statement, the majority confuses a cognizable interest with an actual injury to that interest.
To demonstrate that he has suffered an “injury in fact,” a
plaintiff must establish an “invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical.” Doran, 524
F.3d at 1039 (quoting Lujan, 504 U.S. at 560). Thus, a plaintiff must allege more than encountering an ADAAG defined
barrier in order to establish standing. See Lujan, 504 U.S. at
563 (“[T]he injury in fact test requires more than an injury to
a cognizable interest. It requires that the party seeking review
be himself among the injured.” (internal quotation marks and
citation omitted)); id. at 560 n.1 (“By particularized, we mean
that the injury must affect the plaintiff in a personal and individual way.”); see also Warth v. Seldin, 422 U.S. 490, 501
(1975) (Although Congress may grant a right to bring an
action otherwise barred, “the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury
shared by a large class of other possible litigants.”).
To the extent the majority’s analysis would have allowed
Chapman to simply allege a specific encounter with an
ADAAG barrier related to his disability to satisfy the injury
in fact requirement for standing, it fails to meet the requirement that the encounter “affect[s] the plaintiff in a personal
and individual way,” Lujan, 504 U.S. at 560 n.1, and is no different than allowing standing for barriers not related to the
plaintiff’s disability. An encounter with an ADAAG defined
barrier that a disabled person does not notice (or that does not
affect the individual) is not a “distinct and palpable” injury.
See Warth, 422 U.S. at 501.
The majority correctly points out that a barrier need not
“completely preclude the plaintiff from entering or from any

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use of the facility” to give standing to the plaintiff. Maj. Op.
at 450, See Fortyune, 364 F.3d 1081-82. However, it is
important that the encounter with the barrier adversely affect
the plaintiff in some way to satisfy the particularized injury
requirement for injury in fact. Lujan, 504 U.S. at 578; Doran,
524 F.3d at 1042 n.5 (“Once a disabled individual has
encountered or become aware of alleged ADA violations that
deter his patronage of or otherwise interfere with his access
to a place of public accommodation, he has already suffered
an injury in fact. . . .” (emphasis added)).
An abstract injury (as suggested by the majority) is not
enough. City of Los Angeles v. Lyons, 461 U.S. 95, 101
(1983). “[C]laims of injury that are purely abstract, even if
they might be understood to lead to ‘the psychological consequence presumably produced by observation of conduct with
which one disagrees,’ do not provide the kind of particular,
direct, and concrete injury that is necessary to confer standing. . . .” ASARCO, Inc. v. Kadish, 490 U.S. 605, 616 (1989)
(internal citation omitted).
Rather than merely pointing to a violation of the ADAAG,
a plaintiff must also point to some type of personalized injury,
whether the injury is objective (physical or economic)1 or subjective (emotional or aesthetic). This requirement is consistent
with precedent. For example, in Fortyune, the plaintiff who
planned to return to the movie theater nevertheless was
adversely affected, because he worried about his ability to sit
with his wife, as was his right. See 364 F.3d at 1081. Given
the language in Fortyune, a barrier’s adverse effect on a plaintiff may encompass frustration, embarrassment, or physical
difficulty with a barrier in addition to actually being deterred
from entering a facility. Another example of a subjective
adverse affect is the aesthetic injury relied upon by environ1

Physical or economic injuries, of course, have long been recognized as
generally sufficient to maintain injury in fact. See Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U. S. 150 (1970).

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mental plaintiffs to maintain standing. See Sierra Club, 405
U.S. at 734-35.
The majority misconstrues personalized injury as a solely
subjective one that could give rise to “vexatious litigation.”2
Majority Opinion at 451 n.5. The majority ignores, however,
that in addition to a personalized injury a plaintiff must also
plead and prove the other two elements of standing in order
to meet the standing requirements. An ADA plaintiff must
show his injury is caused by a violation of the objective
ADAAG standards and may be redressed by a favorable order
from a court. See Pickern v. Holiday Quality Foods, Inc., 293
F.3d 1133, 1137 (9th Cir. 2002) (“[Defendant’s] noncompliance with [the ADA] has caused [plaintiff’s] injury, and an
injunction requiring [defendant] to comply with the ADA
would redress it.”). Thus, rather than leading to vexatious litigation, this is a higher standard from that announced by the
majority.3
2

In addition, the majority attempts to fault the concurrence for articulating a different standard than that recognized by the three-judge panel, on
which he sat. Confined by the holding of another three-judge panel in
Doran, the original panel also held that it was “clear” Chapman had standing to challenge the ADA barriers that he “claimed to have encountered”
without analyzing whether he claimed that he was harmed by the barriers.
See Chapman v. Pier 1 Imports, Inc., 571 F.3d 853, 857 (9th Cir. 2009).
While the original panel was confined by Doran, an en banc panel need
not be constrained by such precedent. See Upton v. C.I.R., 283 F.2d 716,
723 (9th Cir. 1960). Regardless of whether Chapman encountered barriers,
the court should be required to analyze whether Chapman has alleged or
shown that the barriers actually adversely affected him.
3
It is true that the vast majority of plaintiffs will believe that they have
been adversely affected by a barrier that is noncompliant with the ADA.
When a plaintiff, however, encounters a barrier, yet believes it has no
actual effect on his ability to participate in or benefit from a place of
accommodation, then the plaintiff is, in reality, suing on behalf of others
and does not have standing. See Valley Forge Christian College v. Am.
United for Separation of Church and State, Inc., 454 U.S. 464, 473 (1982)
(“The federal courts have abjured appeals to their authority which would
convert the judicial process into no more than a vehicle for the vindication
of the value interests of concerned bystanders.” (internal quotations and
citation omitted)).

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In fact, the majority’s statement that a simple encounter
with a barrier is sufficient to confer standing collapses the
injury in fact element of standing with the causation element.
If the injury in fact element is an encounter with an ADA noncompliant barrier and the causation element is “noncompliance with [the ADA],” then, in reality, these two elements are
now one and the majority has expanded standing under the
ADA to render the three part test illusory.
Lastly, to satisfy the requirement for a “real and immediate” threat of repeated injury required by Article III for
injunctive relief, a plaintiff must also show an “actual or
imminent” injury. Pickern, 293 F.3d at 1138. An actual or
imminent injury occurs when a plaintiff has a concrete intent
to return to a facility with a barrier which will continue to
adversely affect his ability to benefit from or participate in the
facility. Id.; see also Fortyune, 364 F.3d at 1081-82. As an
alternative basis for an actual injury, this circuit has held that
a plaintiff, who does not intend to return to a non-ADA compliant store because he is deterred by a barrier at the store,
suffers an ongoing injury, redressable by injunctive relief.
Pickern, 293 F.3d at 1138; D’Lil v. Best W. Encina Lodge &
Suites, 538 F.3d 1031, 1036-37 (9th Cir. 2008). In Pickern
and D’Lil, plaintiffs’ refusal to return to facilities where barriers existed was the injury that satisfied Lujan’s requirement
that the plaintiff be affected in a “personal and individual
way.” In Fortyune, the personalized, ongoing adverse effect
was the inability to sit next to a companion (i.e., enjoy full
benefit of the facility). In either case, an injury in addition to
the encounter with the barrier itself satisfied the “actual or
imminent” injury requirement for injunctive relief.
Under the above reasoning, the majority’s holding that
Chapman failed to identify how any of the alleged violations
“deprived him of the same full and equal access that a person
who is not wheelchair bound would enjoy” adequately reflects
the requirements that an ADA plaintiff must plead and prove
to show injury in fact sufficient to maintain standing. To be

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consistent with the Constitution, injury in fact for standing for
injunctive relief under the ADA requires a plaintiff to (1)
encounter or have knowledge of a barrier; (2) sufficiently
allege that he or she was, at a minimum, adversely affected
by the barrier; and (3) sufficiently allege either a concrete
plan to return to the facility or that the adverse effect of the
barrier deters the plaintiff from returning to the facility. To
the extent that the majority would allow a simple encounter
with an ADAAG barrier that does not “deprive” a plaintiff “of
the same full and equal access” that a non-disabled person
would enjoy at a facility to confer standing, it exceeds the
confines of Article III and impermissibly allows plaintiffs to
sue on behalf of others, rather then themselves.
B.

Unencountered Barriers

Once standing based on encountering one barrier is established, “[t]here remains a question . . . about the scope of barriers that [a plaintiff] may challenge.” Doran, 524 F.3d at
1042. Expanding on the “deterrent effect” doctrine, Doran
held that, once a plaintiff establishes that he encountered a
barrier which deterred him from use and enjoyment of the
facility, that plaintiff could then send an expert into the store
to discover other ADA violations. 524 F.3d at 1043-44. The
plaintiff was then deemed to have standing to challenge all
discovered violations affecting his or her disability. Id. Doran
reasoned:
Given that an ADA plaintiff has standing because of
deterrence from returning in the face of uncertainty,
it is prudent to eliminate that uncertainty through the
judicial device of discovery, thus allowing the plaintiff to obtain by formal means the information about
the scope of the defendant’s violations that he may
have been unable to safely ascertain himself because
of those same violations.
Id. at 1043. Doran justified the constitutionality of this rule
by stating “we have been instructed to take a broad view of

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Article III standing in civil rights cases where private rights
of action are the primary means of enforcing the statute.” Id.
Doran concluded that the “list of barriers would then in total
constitute the factual underpinnings of a single legal injury
. . . [that] actually harmed the disabled person by deterring
that disabled person from visiting a facility . . . .” Id. at 1044.
In other words, when a plaintiff is deterred from entering a
facility because of non-ADA compliant barriers, all the barriers existing at the facility (known and unknown) can be construed as one injury of deterrence. Our holding in Doran
reflects the necessity of deterrence:
An ADA plaintiff who has encountered or has personal knowledge of at least one barrier related to his
or her disability when he or she files a complaint,
and who has been deterred from attempting to gain
access to the public accommodation because of that
barrier, has suffered an injury in fact for the purpose
of Article III. An ADA plaintiff who has Article III
standing as a result of at least one barrier at a place
of public accommodation may, in one suit, permissibly challenge all barriers in that public accommodation that are related to his or her specific disability.
524 F.3d at 1047 (internal citation omitted, emphasis added).
When a plaintiff is not deterred from returning to a facility,
there is not a unification of barriers into one injury in fact
constituting deterrence. Thus, there can be no standing to
challenge unencountered barriers.
Doran’s reasoning did not require “completely preclud[ing]” a plaintiff from entering a facility in order to satisfy the
“imminent” injury necessary for injunctive relief. Instead, the
deterrence necessary for standing to challenge unencountered
barriers in the context of Doran means, at a minimum, “uncertainty about . . . other, potentially dangerous obstacles . . .
to be encountered when the disabled persons return to the site
after the ‘successful’ conclusion of their suit. Such uncer-

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tainty is itself an actual, concrete and particularized injury.”
524 F.3d at 1043. This uncertainty ensures that the plaintiff is
not asking for an injunction based solely on past injuries, but
is continuing to suffer the ongoing injury of deterrence.
By not requiring deterrence before a plaintiff can conduct
discovery to find barriers, the majority seeks to allow an ADA
plaintiff to represent similarly situated plaintiffs, regardless of
whether he would be injured (adversely affected) by the challenged barrier. Because Chapman repeatedly disavowed any
deterrence resulted from the barriers he encountered, he experienced no unified injury and had no basis to challenge all
unencountered barriers at Pier 1.
Not only does such an expansion of standing violate the
constitutional aspects of standing, as discussed above, but it
also violates the prudential aspects of standing. In Doran, we
recognized the “question regarding the breadth of [an ADA
plaintiff’s] right to sue also implicates the prudential aspects
of the standing doctrine.” 524 F.3d at 1044 (citing Bennett v.
Spear, 520 U.S. 154, 164 (1997)). Prudential standing limits
federal jurisdiction, including “the general prohibition on a
litigant’s raising another person’s legal rights, the rule barring
adjudication of generalized grievances more appropriately
addressed in the representative branches, and the requirement
that a plaintiff’s complaint fall within the zone of interests
protected by the law invoked.” Id. (quoting Allen v. Wright,
468 U.S. 737, 751 (1984)). Allowing a plaintiff to challenge
barriers which never affected him in the past, which he had
never considered at the time of filing the complaint, and of
which he could easily learn by returning to a store (that he is
not deterred from frequenting), runs afoul of the prudential
principles against generalized grievances.
As our sister circuit has explained, “[t]he ADA does not
permit private plaintiffs to bring claims as private attorneys
general to vindicate other people’s injuries.” McInnis-Misenor
v. Maine Med. Ctr., 319 F.3d 63, 69 (1st Cir. 2003); see also

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Raines v. Byrd, 521 U.S. 811, 820 (1997) (“[W]e must put
aside the natural urge to proceed directly to the merits of this
important dispute and to ‘settle’ it for the sake of convenience
and efficiency. Instead, we must carefully inquire as to
whether appellees have met their burden of establishing that
their claimed injury is personal, particularized, concrete, and
otherwise judicially cognizable.”).
Therefore, as the prior panel outlined, Chapman did not
have standing as to unencountered barriers, because he was
not deterred from returning to Pier 1. The lack of deterrence
defeats Doran’s justification for allowing unencountered barriers to be considered as one injury and allows Chapman to
bring what amounts to generalized grievances against Pier 1.