                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 19-2508
                       ___________________________

                                  Zach Hillesheim,

                       lllllllllllllllllllllPlaintiff - Appellant,

                                           v.

                                  O.J.’s Cafe, Inc.,

                      lllllllllllllllllllllDefendant - Appellee.
                                      ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                  ____________

                             Submitted: May 12, 2020
                              Filed: August 5, 2020
                                   [Published]
                                  ____________

Before COLLOTON and BENTON, Circuit Judges, and WILLIAMS,1 District Judge.
                          ____________

PER CURIAM.

     Zach Hillesheim sued a restaurant, O.J.’s Cafe, alleging violations of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq. Hillesheim uses

      1
       The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa, sitting by designation.
a wheelchair; as relevant here, he claimed that slopes in the restaurant’s parking lot
deprived him of full and equal enjoyment of the facility. After the restaurant made
improvements to the lot, the district court2 conducted a bench trial and dismissed
Hillesheim’s claims as moot. The court found that the slopes at issue no longer posed
a threat of ongoing or future harm to Hillesheim. Hillesheim appeals, and we affirm.

       Hillesheim visited O.J.’s Cafe in June 2017 and perceived that the access aisle
for the accessible parking space was too narrow. He was also concerned about the
slope of the parking space and the access aisle. Hillesheim sued the restaurant,
alleging among other things that the parking lot did not comply with the ADA
Accessibility Guidelines.

       The applicable guideline on parking lots provides that “[s]lopes not steeper
than 1:48 shall be permitted” in accessible parking spaces and access aisles. ADA
Accessibility Guidelines § 502.4. A slope of this ratio is equivalent to an angle of
1.19 degrees. R. Doc. 87, at 93-94. The guidelines also provide that these
“dimensions are subject to conventional industry tolerances.” Guidelines § 104.1.1.
It is undisputed that the industry standard in this case tolerated a variance of 0.5
percent, which allowed an angle of up to 1.48 degrees. R. Doc. 87, at 95, 186-88.

       After Hillesheim sued, the restaurant made improvements to the accessible
space and access aisle. At Hillesheim’s request, Peter Hansmeier then visited the
restaurant to inspect the reconfigured areas. Hansmeier took forty-nine measurements
of slopes and found that seven slopes in the accessible space and eight slopes in the
access aisle exceeded angles of 1.48 degrees. Based on these measurements,
Hillesheim continued to argue that the presence of excess slopes created a risk of



      2
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

                                         -2-
harm to him when he traveled in a wheelchair and prevented him from accessing the
restaurant.

       The district court proceeded to a bench trial on Hillesheim’s claims related to
the slopes in the accessible parking space and access aisle. At trial, Hillesheim
described the areas of the space and aisle that he would use to remove his wheelchair
from the driver’s side of the vehicle and to assist his girlfriend who also uses a
wheelchair. Hansmeier testified about his measurements, but did not offer an opinion
on whether the slopes denied Hillesheim access to the restaurant.

       The restaurant’s expert, Larry Fleming, testified that a person using a
wheelchair is not affected by slopes that are located outside the path of travel or
beyond the area where a person would transfer to or from the wheelchair. Having
conducted an on-site inspection, Fleming stated that the parking space and access
aisle exceeded the minimum width required by the guidelines. He concluded that the
remaining slopes in excess of 1.48 degrees were located in areas outside the path of
travel for a wheelchair user. Fleming opined that the space and aisle thus met the
minimum guideline requirements because the previous barriers to access were
removed.

       The district court found that although the remaining slopes in excess of 1.48
degrees did not comply with the guidelines, they were not located in areas where
Hillesheim would travel. The court thus determined that Hillesheim failed to
demonstrate a risk of ongoing or future harm when he returns to dine at the restaurant.
Accordingly, the court dismissed the claims as moot. We review a district court’s
legal conclusions de novo and factual findings for clear error.

        Under Article III, federal courts have jurisdiction to hear only cases or
controversies. To establish a controversy, a plaintiff must demonstrate standing—that
is, “a personal injury fairly traceable to the defendant’s allegedly unlawful conduct

                                         -3-
and likely to be redressed by the requested relief”—and a controversy must exist
through all stages of the litigation. Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91
(2013) (internal quotation omitted). If the issues “are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome,” then there is no controversy and
the case is moot. Id. at 91 (internal quotation omitted). In the context of the ADA,
“permanent physical improvements . . . are sufficient to eliminate a case or
controversy if they provide the requested relief.” Davis v. Morris-Walker, LTD, 922
F.3d 868, 870 (8th Cir. 2019).

      Hillesheim asserts on appeal that the district court erred in dismissing his
claims as moot. He argues that the noncompliant slopes in the accessible space and
access aisle are sufficient to establish a threat of harm and an ongoing case or
controversy.

      Title III of the ADA proscribes discrimination in places of public
accommodation against persons with disabilities. See 42 U.S.C. § 12182(a).
Discrimination includes “a failure to remove architectural barriers, and
communication barriers that are structural in nature, in existing facilities . . . where
such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv).

       Hillesheim’s theory at trial was that the presence of slopes in the accessible
space and access aisle that exceed the guidelines and industry tolerance showed a risk
of ongoing or future harm. But “[a]lleging bare violations of the ADA without
evidence of an actual injury is insufficient to establish Article III standing.”
Hillesheim v. Holiday Stationstores, Inc., 900 F.3d 1007, 1010 (8th Cir. 2018).
Although Hillesheim need not traverse the disputed slopes to establish a risk of
ongoing or future harm, id. at 1011, he cannot seek relief by alleging an ADA
violation that would not affect his access to the restaurant. See Steger v. Franco, Inc.,
228 F.3d 889, 893 (8th Cir. 2000).



                                          -4-
       The district court found that any excess slopes in the parking lot were located
in areas that would not interfere with Hillesheim’s access to the restaurant. This
finding is supported by the record. The expert Fleming testified that the excess slopes
were either outside the minimum dimensions for a parking space or aisle, or were not
located in places where Hillesheim said that he would unload his wheelchair, transfer
to or from his wheelchair, maneuver to assist his girlfriend, or travel to enter the
restaurant. As such, Fleming opined that the access aisle and accessible space did not
present an architectural barrier that prevented Hillesheim from accessing the
restaurant. Hillesheim did not rebut this evidence, and the district court’s findings
of fact were not clearly erroneous. With Hillesheim left to rely on alleged violations
of the ADA that would not affect him, the district court correctly determined that
there was no ongoing injury sufficient to establish Article III standing, so the case
was moot.

      The judgment of the district court is affirmed.
                     ______________________________




                                         -5-
