               Case: 12-15403       Date Filed: 11/01/2013      Page: 1 of 43


                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 12-15403
                              ________________________

                          D. C. Docket No. 1:12-cv-22892-UU


JOE HOUSTON,
                                                                        Plaintiff-Appellant,

                                            versus


MAROD SUPERMARKETS, INC.,

                                                                      Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                    (November 1, 2013)

Before HULL and MARTIN, Circuit Judges, and BOWEN, * District Judge.

HULL, Circuit Judge:

       *
        Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
               Case: 12-15403     Date Filed: 11/01/2013     Page: 2 of 43


       Plaintiff-Appellant Joe Houston, who is disabled, sued Defendant-Appellee

Marod Supermarkets, Inc. (“Marod”) to compel Marod to bring one of its stores,

the Presidente Supermarket, into compliance with the Americans with Disabilities

Act (“ADA”). The district court determined that Plaintiff Houston lacked standing

and dismissed his complaint for lack of subject matter jurisdiction. After review

and with the benefit of oral argument, we conclude that Plaintiff Houston has

standing, vacate the dismissal, and remand for further proceedings.

                                  I. BACKGROUND

A.     Plaintiff’s Title III ADA Claim

       Plaintiff Houston is paralyzed, confined to a wheelchair, and disabled. In

2012, Houston filed suit against Marod, alleging that the architectural barriers at

the Presidente Supermarket violated Title III of the ADA. 42 U.S.C. §§ 12181-

12189 (“Title III”).

       Title III provides that “[n]o individual shall be discriminated against on the

basis of disability” in “any place of public accommodation.” 42 U.S.C.

§ 12182(a). As to public facilities, Title III defines “discrimination” as, inter alia,

“a failure to remove architectural barriers . . . in existing facilities . . . where such

removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). “[A]ny person who is

being subjected to discrimination on the basis of disability in violation of this

subchapter [Title III]” may bring a private action. Id. § 12188(a).


                                             2
                Case: 12-15403       Date Filed: 11/01/2013       Page: 3 of 43


         In his complaint, Plaintiff Houston alleged that he encountered these barriers

at the Presidente Supermarket in Miami-Dade County, Florida: (1) a lack of

designated disabled use parking spaces, (2) no clear path of travel connecting all

essential elements of the supermarket, and (3) restrooms that failed to comply with

all necessary ADA regulations. Houston also alleged that he plans to return to the

property to avail himself of the goods and services offered to the public at the

property, and to determine whether the property has been made ADA compliant.

Houston sought declaratory and injunctive relief as well as attorney’s fees and

costs.

B.       Defendant’s Motion to Dismiss

         Defendant Marod filed a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(1).1 Marod contended that Houston lacked standing to bring his

Title III ADA claim, depriving the district court of subject matter jurisdiction over

the suit. Marod styled its motion as a factual challenge to subject matter

jurisdiction.

         In its motion, Defendant Marod argued that Plaintiff Houston’s litigation

history cast doubt on his sincerity to return to the Presidente Supermarket and face

future discrimination. Marod attached to its motion a list of 271 cases in which


         1
         Rule 12(b)(1) provides: “Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may assert the following
defenses by motion: (1) lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1).
                                                3
                Case: 12-15403        Date Filed: 11/01/2013       Page: 4 of 43


Houston or an advocacy group he represents was a party, all filed in the Southern

and Middle Districts of Florida. 2 In these cases, Houston or his advocacy group

had sued Florida businesses alleging ADA violations. According to Marod, many

of those suits were dismissed for lack of subject matter jurisdiction because

Houston lacked standing. 3 Marod pointed out that Houston in 20 other active cases

had professed a desire and intent to revisit the locations that were the subject of

these cases, even though those locations are spread over half the state of Florida.

Given that Houston already had asserted his intent to return to so many different

locations, Defendant Marod claimed that Houston’s professed intent to return to

the Presidente Supermarket was not credible and, thus, insufficient to confer

standing.

       In addition, Defendant Marod contended that Plaintiff Houston could not

demonstrate the required imminent threat of future discrimination because there

was no “continuing connection” between Houston and the Presidente Supermarket.

Marod stressed that (1) Houston lives in Pompano Beach in Broward County, (2)

       2
          The lists showed that Houston or his advocacy group filed 170 cases in the Southern
District of Florida, the district in which Houston resides, and another 101 cases in the Middle
District of Florida, which is contiguous to the Southern District of Florida. It is not
unprecedented in this country for advocacy groups and individual members of advocacy groups
to find it necessary to file a long trail of lawsuits in federal courts to enforce legal and civil
rights.
       3
         In 2011, Houston and a co-plaintiff sued “President Supermarket, Inc.,” and 12 other
entities alleging ADA violations at “Presidente” supermarkets, including this one in Miami-Dade
County. The district court dismissed 12 defendants, including President Supermarket, Inc., for
improper joinder. Subsequently, the district court dismissed the sole remaining defendant for
lack of subject matter jurisdiction due to Houston’s inability to establish standing.
                                                 4
                Case: 12-15403     Date Filed: 11/01/2013   Page: 5 of 43


his home is “approximately 30.5 miles away” from the Presidente Supermarket in

Miami-Dade County, and (3) Houston did not state when his prior visits to the

store took place or provide any concrete plans or reason to revisit the store in the

future.

C.       Plaintiff’s Affidavit in Opposition to Dismissal

         In response, Plaintiff Houston submitted an affidavit providing details about

his prior visits to the Presidente Supermarket and his future plans to visit the store.

Houston has “a motorized wheelchair and a specially equipped van” that allow him

to travel. He goes grocery shopping, shops for clothes, goes out to eat, and travels

to “various attractions such as Disney World and the Daytona International

Speedway.” Plaintiff Houston has “shopped at various El Presidente Supermarkets

many times over the past ten years or so,” because he likes “Spanish food and can

find items in those stores not necessarily available at other supermarkets.”

Houston does “not necessarily shop at the store closest to [his] home.” Rather,

Houston shops at any number of stores depending on what else he is doing and

where he happens to be at the time.

         Houston swore that before filing the instant suit, he shopped at this particular

Presidente Supermarket on February 24, 2011 and June 15, 2011. Houston’s

affidavit included a receipt from the second visit, in which he spent $18.92 at the

store.


                                             5
               Case: 12-15403          Date Filed: 11/01/2013   Page: 6 of 43


       Plaintiff Houston further explained that he travels to Miami-Dade County,

where the Presidente Supermarket is located, “on a regular basis,” and that he

expects to be there “in the future.” Houston regularly travels to Miami-Dade

County because he is vice-president of an advocacy group, Access 4 All, Inc. The

group is represented by the law firm of Fuller, Fuller and Associates, whose offices

are located in Miami-Dade County. Houston’s affidavit included a map showing

that the law firm’s offices are only 1.8 miles away from the Presidente

Supermarket. And, while Houston did not have regularly scheduled meetings with

his attorneys, he “definitely” anticipated “going to Fuller, Fuller and Associates[’]

offices[] . . . in the near future.”

       Plaintiff Houston also described that when traveling from his home to his

lawyers’ offices, he drives down I-95, gets off at N.E. 125th Street, and drives east.

His usual route takes him right past the Presidente Supermarket. Houston swore

that if the supermarket had disabled use parking spaces, ADA-compliant

restrooms, and so forth, he “would return to the Defendant’s store to shop.”

D.     District Court’s Order Granting Motion to Dismiss

       The district court found that Plaintiff Houston lacked standing and,

consequently, the court lacked subject matter jurisdiction over his ADA claims.

The district court applied a four-factor test, used by several district courts in

Florida, to assess the likelihood that a plaintiff would return to a defendant’s


                                                6
                Case: 12-15403        Date Filed: 11/01/2013       Page: 7 of 43


business and suffer future discrimination. The four factors are: (1) the proximity

of the defendant’s business to the plaintiff’s residence; (2) the plaintiff’s past

patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan to

return; and (4) the frequency of the plaintiff’s travel near the defendant’s business.

       As to Plaintiff Houston’s past and future visits, the district court did not

question that Houston has visited this supermarket in the past and plans to do so in

the future. Rather, the district court found that Houston was a “tester of ADA

compliance,” was not a “bona fide patron” of the Supermarket, and “plans to return

to determine . . . whether the property has been made ADA compliant.” The

district court ruled that Houston’s test visits are a testing campaign “rather than a

genuine prayer for relief by an aggrieved party.”

       The district court acknowledged that “[c]onstitutional standing requirements

do not require that [Houston] tally up a magic number of visits to Defendant’s

facilities, rather they require that he actually be a bona fide patron.” The district

court was persuaded that Houston’s “openly stated desire to act as a tester of ADA

compliance . . . establishes that he is something other than a bona fide patron.”4

       As to Plaintiff Houston’s proximity to the store, the district court observed

that because Plaintiff Houston lived 30 miles from Marod’s supermarket, “[e]ven if

       4
         The district court noted that at one point in his affidavit, Plaintiff Houston mistakenly
referred to the supermarket as a “motel,” “reinforc[ing] the [c]ourt’s conclusion that the
Complaint was submitted as part of a ‘testing’ campaign against a broader set of allegedly non-
compliant facilities, rather than a genuine prayer for relief made by an aggrieved party.”
                                                 7
              Case: 12-15403     Date Filed: 11/01/2013     Page: 8 of 43


[Houston] were a frequent visitor to his attorneys’ office,” the distance between

Houston’s home and the store “diminishes the likelihood of a continued threat of

injury necessitating injunctive relief.” The district court concluded that Houston

failed to establish that he “face[d] a continuing threat of discrimination from the

alleged deficiencies of this particular supermarket” and lacked standing to seek

injunctive relief.

                           II. STANDARD OF REVIEW

      In reviewing a district court’s dismissal of a complaint under Rule 12(b)(1)

for lack of subject matter jurisdiction, we review the district court’s legal

conclusions de novo, including the court’s conclusion concerning standing. Elend

v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006); see also McElmurray v. Consol.

Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1241 (11th Cir. 2007). We

review the district court’s “findings of jurisdictional facts for clear error.” City of

Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012).

                          III. ARTICLE III STANDING

      Plaintiff Houston must satisfy three requirements to have standing under

Article III of the Constitution: (1) “injury-in-fact”; (2) “a causal connection

between the asserted injury-in-fact and the challenged action of the defendant”;

and (3) “that the injury will be redressed by a favorable decision.” Shotz v. Cates,

256 F.3d 1077, 1081 (11th Cir. 2001) (internal quotation marks omitted) (citing


                                           8
              Case: 12-15403     Date Filed: 11/01/2013    Page: 9 of 43


Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136

(1992)). “These requirements are the irreducible minimum required by the

Constitution for a plaintiff to proceed in federal court.” Id. (internal quotation

marks omitted) (citing Ne. Fla. Chapter of Associated Gen. Contractors of Am. v.

City of Jacksonville, Fla., 508 U.S. 656, 664, 113 S. Ct. 2297, 2302 (1993)). The

dispute here is over the first requirement—“injury-in-fact.”

      The “injury-in-fact” demanded by Article III requires an additional showing

when injunctive relief is sought. In addition to past injury, a plaintiff seeking

injunctive relief “must show a sufficient likelihood that he will be affected by the

allegedly unlawful conduct in the future.” Wooden v. Bd. of Regents of Univ. Sys.

of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001). Because injunctions regulate future

conduct, a party has standing to seek injunctive relief only if the party shows “a

real and immediate—as opposed to a merely conjectural or hypothetical—threat of

future injury.” Shotz, 256 F.3d at 1081; Wooden, 247 F.3d at 1284 (citing City of

Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665 (1983)).

      In this case, Plaintiff Houston seeks injunctive relief, which is the only form

of relief available to plaintiffs suing under Title III of the ADA. See 42 U.S.C.

§ 12188(a) (providing that the remedies available to individuals shall be those set

forth in 42 U.S.C. § 2000a-3(a), which allows a private right of action for only

injunctive relief for violations of Title II of the Civil Rights Act of 1964, Pub. L.


                                           9
              Case: 12-15403    Date Filed: 11/01/2013    Page: 10 of 43


88–352, codified as amended at 42 U.S.C. § 2000a et seq.); Newman v. Piggie

Park Enters., Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966 (1968) (noting that Title II

of the Civil Rights Act of 1964 permits injunctive relief only). Therefore, to have

standing, Plaintiff Houston must show past injury and a real and immediate threat

of future injury.

      This appeal presents two issues: (1) whether Plaintiff Houston’s tester

motive behind his past and future visits precludes his having standing for this

particular lawsuit under Title III of the ADA, and (2), if not, whether under the

totality of the facts here Houston has shown a real and immediate threat of future

injury.

                      IV. HOUSTON’S TESTER MOTIVE

      The district court made a factual finding that Plaintiff Houston is a tester and

“not a bona fide patron.” While the evidence supports this factual finding, the

threshold question is whether Houston’s tester motive deprives him of standing to

sue for violations of 42 U.S.C. §§ 12182(a) and 12182(b)(2)(A)(iv). We review

those statutes and then relevant precedent as to standing.

A.    Title III of the ADA

      Title III of the ADA addresses “Public Accommodations and Services

Operated by Private Entities.” Section 12182(a) sets for the “[g]eneral rule” that

“[n]o individual shall be discriminated against on the basis of disability in the full


                                          10
             Case: 12-15403      Date Filed: 11/01/2013    Page: 11 of 43


and equal enjoyment” of the facilities 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).

      As defined in Title III, the term “public accommodation” includes a

“grocery store.” Id. § 12181(7)(E). Defendant Marod owns and operates a grocery

store, the Presidente Supermarket. Therefore, § 12182(a) provides that “[n]o

individual shall be discriminated against on the basis of disability in the full and

equal enjoyment” of the facilities and accommodations in the Presidente

Supermarket operated by Defendant Marod.

      Section 12182(b)(2) in Title III lists examples of what discrimination means

for purposes of § 12182(a), including the “failure to remove architectural barriers .

. . in existing facilities.” Id. § 12182(b)(2)(A)(iv). Plaintiff Houston alleges

discrimination in the form of architectural barriers in the Presidente Supermarket.

      In turn, §12188 is entitled “Enforcement,” and § 12188(a)(1) provides the

remedies set forth in 42 U.S.C. § 2000a-3(a) “to any person who is being subjected

to discrimination on the basis of disability in violation of this subchapter [Title

III].” 42 U.S.C. § 12188(a)(1). The remedies in 42 U.S.C. § 2000a-3(a) include

“a civil action for preventive relief, including an application for a permanent or

temporary injunction, restraining order, or other order.” Section 12188(a)(1) of

Title III also provides that “[n]othing in this section shall require a person with a


                                          11
               Case: 12-15403    Date Filed: 11/01/2013   Page: 12 of 43


disability to engage in a futile gesture if such person has actual notice that a person

or organization covered by this subchapter [Title III] does not intend to comply

with its provisions.” 42 U.S.C. § 12188(a)(1).

         This Court has not previously addressed whether a tester can have standing

under Title III of the ADA. However, the Supreme Court and this Court have

addressed tester standing under other anti-discrimination statutes, and we start

there.

B.       Tester Standing Under Anti-discrimination Statutes

         The Supreme Court has recognized the standing of a tester to pursue a

lawsuit to remedy violations of the Fair Housing Act’s (FHA) prohibition in

§ 804(d) against misrepresentations regarding the availability of housing. See

Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74, 102 S. Ct. 1114, 1121–22

(1982) (involving FHA § 804(d) codified at 42 U.S.C. § 3604(d)). The Supreme

Court in Havens Realty defined “testers” as individuals “who, without an intent to

rent or purchase a home or apartment, pose as renters or purchasers for the purpose

of collecting evidence of unlawful steering practices.” Id. at 373, 102 S. Ct. at

1121. The Supreme Court concluded that a black tester who was misinformed

about the availability of a rental property had alleged sufficient injury-in-fact to

support standing to sue under § 804(d) of the FHA. Id. at 374, 102 S. Ct. at 1121–

22. The plaintiff-tester in Havens Realty never intended to rent the apartment;


                                          12
             Case: 12-15403      Date Filed: 11/01/2013    Page: 13 of 43


rather, his sole purpose was to determine whether the defendant engaged in

unlawful practices. Id.

      In considering the tester’s standing, the Supreme Court in Havens Realty

explained that the “‘the actual or threatened injury required by Art. III may exist

solely by virtue of statutes creating legal rights, the invasion of which creates

standing.” Id. at 373, 102 S. Ct. at 1121 (alterations adopted) (quoting Warth v.

Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206 (1975)); see also Linda R.S. v.

Richard D., 410 U.S. 614, 617 n.3, 93 S. Ct. 1146, 1148 n.3 (1973) (“Congress

may enact statutes creating legal rights, the invasion of which creates standing,

even though no injury would exist without the statute.”). The statutory language of

the relevant FHA provision, § 804(d), was therefore critical to the Supreme Court’s

decision. Havens Realty, 455 U.S. at 373, 102 S. Ct. at 1121.

      The Supreme Court noted that FHA’s § 804(d) makes it unlawful “[t]o

represent to any person because of race . . . that any dwelling is not available for . .

. rental when such dwelling is in fact so available.” Id. (quoting 42 U.S.C.

§ 3604(d)). The Supreme Court further observed that Congress made the

prohibition in FHA’s § 804(d) “enforceable through the creation of an explicit

cause of action in § 812(a) of the Act, 42 U.S.C. § 3612(a).” Havens Realty, 455

U.S. at 373, 102 S. Ct. at 1121. The Supreme Court therefore concluded that §

804(d) “establishes an enforceable right to truthful information concerning the


                                           13
               Case: 12-15403   Date Filed: 11/01/2013    Page: 14 of 43


availability of housing” and “[a] tester who has been the object of a

misrepresentation made unlawful under § 804(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 Act’s provisions.” Id. at 373-74; 102 S.

Ct. at 1121.

      The Supreme Court admonished “[t]hat the tester may have approached the

real estate agent fully expecting that 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 § 804(d).” Id. at 374; 102 S. Ct. at 1121. The

Supreme Court explained that “[w]hereas Congress, in prohibiting discriminatory

refusals to sell or rent in § 804(a) of the Act, 42 U.S.C. § 3604(a), required that

there be a ‘bona fide offer’ to rent or purchase, Congress plainly omitted any such

requirement insofar as it banned discriminatory representations in § 804(d).”

Havens Realty, 455 U.S. at 374; 102 S. Ct. at 1122.

      Subsequently, in Watts v. Boyd Properties, 758 F.2d 1482 (11th Cir. 1985),

this Court applied the Supreme Court’s rationale in Havens Realty to recognize the

standing of a tester to sue under 42 U.S.C. § 1982. The plaintiff “Kathy Watts, a

black female, was a volunteer ‘tester’ for Metro,” a nonprofit organization

dedicated to eliminating discriminatory housing practices. Id. at 1483-84.

Although Watts never intended to actually rent an apartment from the defendant,


                                          14
              Case: 12-15403     Date Filed: 11/01/2013     Page: 15 of 43


she inquired about the availability of apartments in the defendant’s complex in

June of 1982. Id. at 1483. Watts was told that no apartment would be available

until the fall of 1982. Id. at 1484. Shortly thereafter, a white tester working for

Metro inquired about the availability of apartments in the same complex. Id. The

white tester was told that an apartment would be available for rent on July 1, 1982.

Id.

      Plaintiff Watts brought suit under FHA § 804(d) and under 42 U.S.C.

§ 1982, alleging that the defendant had intentionally provided Watts with false

information about the availability of housing. Id. The district court denied the

defendant’s motion for summary judgment as to Watts’s FHA claim but granted it

as to her § 1982 claim for lack of standing. Id. Because “Watts did not allege any

injury to herself arising from a violation . . . of § 1982,” the district court

concluded that “she was without standing to assert a claim based upon § 1982.” Id.

      In reversing the district court’s § 1982 ruling, this Court first turned to the

language of § 1982, which provides that “[a]ll citizens of the United States shall

have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase,

lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. This

Court pointed to the similarities between § 1982 and FHA § 804(d), which Havens

Realty found to confer standing to a tester. Watts, 785 F.2d at 1485. Extending

the Supreme Court’s rationale in Havens Realty to § 1982, we concluded that


                                            15
              Case: 12-15403      Date Filed: 11/01/2013    Page: 16 of 43


“even if a tester is motivated solely by the desire to challenge the legality of

allegedly discriminatory practices, this is a sufficient purpose to confer standing”

under § 1982. Id.

       In addition to our Circuit’s decision in Watts, we review the Tenth Circuit’s

decision in Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004), which

involved a tester suing under § 12132 of ADA’s Title II. That statute prohibits

disability discrimination in the provision of public services. 42 U.S.C. § 12132.

The Tenth Circuit in Tandy observed that § 12132 of Title II includes language

substantially similar to FHA § 804(d), which the Supreme Court analyzed in

Havens Realty. Tandy, 380 F.3d at 1286.

       Specifically, the Tenth Circuit focused § 12132’s phrase that “no qualified

individual with a disability shall, by reason of such disability, be excluded from

participation in . . . the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” Id. (quoting 42 U.S.C. § 12132)

(emphasis and alterations in original). The Tenth Circuit reasoned that “Title II’s

words ‘no’ and ‘shall’ function like [FHA] § 804(d)’s phrase ‘any person’ because,

read in context, these words clearly proscribe discrimination against any person

who is a ‘qualified individual with a disability.’” Id. (emphasis in original). Thus,

according to the Tenth Circuit, “[t]he plain language of Title II evinces Congress’

intent to confer upon a ‘qualified individual with a disability’ a legal right not to be


                                            16
              Case: 12-15403     Date Filed: 11/01/2013     Page: 17 of 43


excluded from participation in the services of a public entity by reason of his or her

disability.” Id.

      The Tenth Circuit also considered the language of Title II’s enforcement

provision, which extends “‘remedies, procedures, and rights’ under the statute to

‘any person alleging discrimination on the basis of disability in violation of [Title

II].’” Id. at 1287 (quoting 42 U.S.C. § 12133) (emphasis in Tandy). The Tenth

Circuit stated that “the totality of Title II’s plain language, the plain language of its

enforcement provision, and the statutory scheme’s anti-discriminatory purpose lead

[that] court to conclude that Congress intended Title II to confer standing to the

full limits of Article III.” Id. The Tenth Circuit therefore held that “testers have

standing to sue under Title II of the ADA.” Id.

      With these decisions as background, we turn to Houston’s claims.

C.    Tester Motive Does Not Negate Injury-in-Fact

      For the following three reasons taken together, we conclude that Houston’s

status as a tester does not deprive him of standing to maintain his civil action for

injunctive relief under 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iv), and 12188(a)(1)

of the ADA’s Title III.

      First, the plain language of § 12182(a) confers on Plaintiff Houston a legal

right to be free from discrimination on the basis of disability with respect to “the

full and equal enjoyment of the . . . facilities” of the Presidente Supermarket.” See


                                           17
              Case: 12-15403     Date Filed: 11/01/2013   Page: 18 of 43


42 U.S.C. § 12182(a). The invasion of Houston’s statutory right in § 12182(a)

occurs when he encounters architectural barriers that discriminate against him on

the basis of his disability. Id. § 12182(b)(2)(A)(iv). When he encounters those

barriers, Plaintiff Houston “has suffered injury in precisely the form the statute was

intended to guard against.” Cf. Havens Realty, 455 U.S. at 373-74, 102 S. Ct. at

1121.

        This legal right created by §§ 12182(a) and 12182(b)(2)(A)(iv) does not

depend on the motive behind Plaintiff Houston’s attempt to enjoy the facilities of

the Presidente Supermarket. The text of §§ 12182(a) and 12182(b)(2)(A)(iv)

provides no basis for the suggestion that Plaintiff Houston’s motive is relevant to

this legal right. The substantive right conferred by the statute is to be free from

disability discrimination in the enjoyment of the facility, regardless of Houston’s

motive for visiting the facility. Houston suffered an injury when he allegedly

encountered architectural barriers at the Presidente Supermarket—notwithstanding

that he did so while testing for ADA compliance. Thus, the tester motive behind

Houston’s past and future visits to the Presidente Supermarket does not preclude

his having standing to sue for invasions of his legal rights under §§ 12182(a) and

12182(b)(2)(A)(iv). See Havens Realty, 455 U.S. at 373-75, 102 S. Ct. at 1121;

Watts, 758 F.2d at 1485; Tandy, 380 F.3d at 1287.

        Second, the relevant operative phrases here are (1) “[n]o individual shall be


                                          18
              Case: 12-15403     Date Filed: 11/01/2013    Page: 19 of 43


discriminated against on the basis of disability,” 42 U.S.C. § 12182(a) (emphasis

added); and (2) “any person who is being subjected to discrimination on the basis

of disability” may bring suit. Id. § 12188(a)(1) (emphasis added). Nothing in that

statutory language precludes standing for tester plaintiffs; if anything, “no

individual” and “any person” are broad terms that necessarily encompass testers.

These two phrases are similar to the language in FHA § 804(d) which the Supreme

Court found to permit tester standing because it prohibits misrepresentations about

the availability of housing to “any person.” Havens Realty, 455 U.S. at 373-75;

102 S. Ct. at 1121-22. The two phrases are virtually identical to the Title II

provisions in Tandy which provide that “no qualified individual” shall be excluded

on the basis of disability, see 42 U.S.C. § 12132, and that “any person alleging

discrimination on the basis of disability” may sue, see 42 U.S.C. § 12133. See

Tandy, 380 F.3d at 1286-87 (concluding that a tester can have standing for a

lawsuit under § 12132 of Title II).

      Third, Congress has in other anti-discrimination statutes required that a

plaintiff have “bona fide”—as opposed to tester––status. In FHA § 804(a) for

example, Congress made it unlawful “[t]o refuse to sell or rent after the making of

a bona fide offer . . . to any person because of race, color, religion, sex, familial

status, or national origin.” 42 U.S.C. § 3604(a) (emphasis added). In other words,

a plaintiff seeking redress for an alleged refusal to sell or to rent housing on the


                                           19
              Case: 12-15403     Date Filed: 11/01/2013     Page: 20 of 43


basis of race must have made an actual “bona fide” offer—not a mere “tester”

offer. Congress said so expressly in § 804(a) of the FHA. But Congress imposed

no “bona fide” requirement § 804(d) of the FHA. Havens Realty, 455 U.S. at 374;

102 S. Ct. at 1122. And, Congress imposed no “bona fide” requirement in the

statutory provisions at issue here, namely 42 U.S.C. §§ 12182(a),

12182(b)(2)(A)(iv), and 12188(a)(1) of the ADA’s Title III.

      Importantly, Congress has limited other provisions of the ADA’s Title III to

protect only “clients or customers of the covered public accommodation.” See 42

U.S.C. § 12182(b)(1)(A)(iv). Congress expressly imposed the “client or customer”

limitation for three specific prohibited activities: (i) denial of participation,

(ii) participation in unequal benefit, and (iii) separate benefit. Id.

§ 12182(b)(1)(A)(i-iii).

       But Congress made clear that the “client and customer” limitation applies

only to these three prohibited activities. See 42 U.S.C. § 12182(b)(1)(A)(iv).

Congress imposed no such limitation in the provisions of Title III upon which

Plaintiff Houston relies, which are §§ 12182(a), 12182(b)(2)(A)(iv), and

12188(a)(1). See Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113, 121-22

(3d Cir. 1998) (holding that “both the language of Title III and its legislative

history clearly demonstrate [that] the phrase ‘clients or customers,’ which only

appears in 42 U.S.C. § 12182(b)(1)(A)(iv), is not a general circumscription of


                                            20
              Case: 12-15403     Date Filed: 11/01/2013     Page: 21 of 43


Title III and cannot serve to limit the broad rule announced in 42 U.S.C.

§ 12182(a),” and noting that the “[t]he operative rule announced in Title III speaks

not in terms of ‘guests,’ ‘patrons,’ ‘clients,’ ‘customers,’ or ‘members of the

public’ but, instead, broadly uses the word ‘individuals.’”); Molski v. M.J. Cable,

Inc., 481 F.3d 724, 733 (9th Cir. 2007) (holding that the “client or customer”

limitation of § 12182(b)(1)(A)(iv) does not apply to § 12182(a) or to

§ 12182(b)(2)(A)(iv)); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 679, 121

S. Ct. 1879, 1891 (2001) (noting that § 12182(b)(1)(A)(iv) “is not literally

applicable to Title III’s general rule prohibiting discrimination against disabled

individuals” and holding that “Title III’s broad general rule contains no express

‘clients or customers’ limitation, § 12182(a), and § 12182(b)(1)(A)(iv) provides

that its limitation is only ‘[f]or purposes of’ the clauses in that separate

subparagraph.”).

      These examples illustrate that Congress has said so expressly when it wants

to limit the class of people protected by anti-discrimination statutes to only clients

or customers or to people of bona fide status. But Congress expressed no such

limitation in the parts of Title III that are relevant to Plaintiff Houston’s lawsuit.

This absence of legislative language restricts our interpretation, as we are “not

allowed to add or subtract words from a statute.” Friends of the Everglades v. S.

Fla. Water Mgmt. Dist., 570 F.3d 1210, 1224 (11th Cir. 2009). Because our task is


                                           21
              Case: 12-15403    Date Filed: 11/01/2013    Page: 22 of 43


merely “to apply statutory language, not to rewrite it,” Harris v. Garner, 216 F.3d

970, 976 (11th Cir. 2000), we are not at liberty to impose a “bona fide patron”

requirement for Plaintiff Houston’s lawsuit for violations of §§ 12182(a) and

12182(b)(2)(A)(iv) of Title III, see T-Mobile South, LLC v. City of Milton, Ga.,

No. 12-10487, --- F.3d ----, 2013 WL 4750549, at *10 (11th Cir. Sept. 5, 2013)

(“Our duty is to say what statutory language means, not what it should mean, and

not what it would mean if we had drafted it.”); Ali v. Fed. Bureau of Prisons, 552

U.S. 214, 228, 128 S. Ct. 831, 841 (2008) (“We are not at liberty to rewrite the

statute to reflect a meaning we deem more desirable.”).

     We hold that Plaintiff Houston’s tester motive behind his visits to the

Presidente Supermarket does not foreclose 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 a not a prerequisite for Houston to

obtain standing for a lawsuit under these statutory provisions. Stated differently,

the alleged violations of Houston’s statutory rights under Title III may constitute

an injury-in-fact, even though he is a mere tester of ADA compliance. But this

conclusion alone is not enough. Because Plaintiff Houston seeks injunctive relief,

he also must show a real and immediate threat of future injury. We address this

issue next.




                                         22
             Case: 12-15403     Date Filed: 11/01/2013   Page: 23 of 43




         V. HOUSTON’S STANDING TO SEEK INJUNCTIVE RELIEF

      As noted earlier, Plaintiff Houston’s “standing to seek the injunction

requested depend[s] on whether he [i]s likely to suffer future injury.” Lyons, 461

U.S. at 105, 103 S. Ct. at 1667. Houston “must show a sufficient likelihood that

he will be affected by the allegedly unlawful conduct in the future.” Wooden , 247

F.3d at 1283. That requires “a real and immediate—as opposed to a merely

conjectural or hypothetical—threat of future injury.” Shotz, 256 F.3d at 1082;

Wooden , 247 F.3d at 1283. This Court has addressed the requirement of a real

and immediate threat of future injury in two prior ADA cases. See Shotz, 256 F.3d

at 1081; Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000). Both

cases involved motions to dismiss where we addressed standing based on facts

alleged in the complaint taken as true for purposes of the motions. We examine

both cases below.

A.    Circuit Precedent

      In Shotz, this Court held that the plaintiffs lacked standing to pursue their

disability discrimination claims under § 12132 of the ADA’s Title II. 256 F.3d at

1082. The Shotz plaintiffs alleged that they had encountered architectural barriers

when they visited a Levy County, Florida courthouse in July of 1999. Id. at 1078-

79. The plaintiffs sought “injunctive relief compelling [Levy] County to comply


                                         23
              Case: 12-15403     Date Filed: 11/01/2013    Page: 24 of 43


with the ADA.” Id. at 1079.

      The district court in Shotz dismissed the plaintiffs’ complaint because, inter

alia, plaintiffs had failed to sufficiently allege their standing to pursue injunctive

relief. On appeal, this Court explained that “a plaintiff lacks standing to seek

injunctive relief unless he alleges facts giving rise to an inference that he will

suffer future discrimination by the defendant.” Id. at 1081(emphasis added). We

concluded that the Shotz plaintiffs failed to “allege a real and immediate threat of

future discrimination” because their “complaint contain[ed] only past incidents of

discrimination.” Id. at 1082. We observed that “since their July 1999 visit to the

Levy County Courthouse, the plaintiffs have not attempted to return, nor have they

alleged that they intend to do so in the future.” Id. We explained that “[a]bsent

such an allegation, the likelihood of future discrimination remains conjectural,

hypothetical, or contingent, and not real and immediate.” Id. (internal quotation

marks omitted) We, therefore, concluded that the Shotz plaintiffs lacked Article

III standing to sue for injunctive relief. Id.

      In contrast, in Stevens, this Court concluded that the plaintiff had standing to

seek an injunction under ADA’s Title III. 215 F.3d at 1239. The Stevens plaintiff

took a trip aboard defendant’s cruise ship and allegedly discovered multiple ADA

violations, including a lack of wheelchair accessible cabins and paths to public

areas. Id. at 1238-39.


                                           24
             Case: 12-15403      Date Filed: 11/01/2013    Page: 25 of 43


      The district court in Stevens dismissed the plaintiff’s complaint on two

grounds. Id. First, because the plaintiff sought only injunctive relief but did not

allege a threat of future injury, the district court concluded that the “[p]laintiff had

not pleaded properly her standing to pursue the ADA claim.” Id. Second, the

district court concluded that the ADA did not apply to the defendant’s foreign-flag

cruise ship as a matter of law. Id. The plaintiff moved for reconsideration and

sought leave to amend her complaint so that she could “cure the failure to plead

standing to pursue injunctive relief.” Id. The plaintiff attached a proposed

amended complaint to her motion in which she alleged that “in the near future, she

would take another cruise aboard Defendant’s ship.” Id. The district court denied

leave to amend, reasoning that the amendment would be futile given the

inapplicability of the ADA to the defendant’s foreign-flag ship. Id.

      On appeal, this Court concluded that the defendant’s foreign-flag ship was

covered by Title III of the ADA. Id. at 1242-43. Amending the complaint to cure

the standing deficiency was, therefore, not a futile exercise. This Court thus

reversed the district court’s denial of leave to amend. Id. We noted that a plaintiff

pursuing “injunctive relief in federal court must plead a genuine threat of imminent

injury.” Id. This Court was “satisfied” that the Stevens plaintiff’s allegation that

she would take another cruise aboard defendant’s ship “in the near future” was

sufficient to properly allege standing for injunctive relief under Title III of the


                                           25
              Case: 12-15403       Date Filed: 11/01/2013      Page: 26 of 43


ADA. Id. 5

       We now turn to Houston’s case.

B.     Houston has Standing

       As demonstrated in Shotz, in a motion to dismiss, we usually “evaluate

standing based on the facts alleged in the complaint.” 256 F.3d at 1081. Here,

however, Defendant Marod in his Rule 12(b)(1) motion attacked Plaintiff

Houston’s standing in a factual challenge—as opposed to a facial challenge. Facial

attacks to subject matter jurisdiction require the court merely to look and see if the

plaintiff’s complaint 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. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279

(11th Cir. 2009). However, in a factual challenge to subject matter jurisdiction, a

district court can “consider extrinsic evidence such as deposition testimony and

affidavits.” Id. In so doing, a district court is “free to weigh the facts” and is “not

constrained to view them in the light most favorable” to the plaintiff. Id.

       Here, both Marod and Houston filed and argued evidence outside the

complaint. But the relevant facts contained in their evidence were not disputed,



       5
         Defendant Marod argues that our decision in Stevens conflicts with the Supreme Court’s
holding in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130 (1992), that “some day
intentions” are not enough. Id. at 564, 112 S. Ct. at 1238. We need not address that issue
because, as explained in our Lujan discussion later, the facts in Houston’s case establish more
than the plaintiff did in Stevens and satisfy Lujan.
                                              26
             Case: 12-15403     Date Filed: 11/01/2013    Page: 27 of 43


such as (1) Houston’s two prior visits to the Presidente Supermarket, (2) his

proximity to the store, (3) his averments as to future visits, and (4) that Houston is

an ADA tester who has filed many similar lawsuits. Indeed, the district court

acknowledged that Houston plans to return to the supermarket. Having concluded

that Houston’s undisputed tester motive behind his plan to return does not defeat

standing, we now conclude that the other undisputed facts are sufficient to

establish Houston’s standing.

      Plaintiff Houston had two undisputed past encounters of the alleged

architectural barriers in the Presidente Supermarket. While “past wrongs do not in

themselves amount to that real and immediate threat of injury necessary to make

out a case or controversy,” Lyons, 461 U.S. at 103, 103 S. Ct. at 1666, the

plaintiff’s exposure to illegal conduct in the past is nonetheless “evidence bearing

on whether there is a real and immediate threat of repeated injury,” O’Shea v.

Littleton, 414 U.S. 488, 496, 94 S. Ct. 669, 676 (1974). As this Court stated in

Shotz, a plaintiff seeking an injunction under Title III either must “have attempted

to return” to the non-compliant building or at least “intend to do so in the future.”

256 F.3d at 1081.

      Plaintiff Houston has visited this particular supermarket twice and

encountered the alleged architectural barriers during each visit. He submitted a

receipt from the second visit. We therefore note that Houston did, in fact, return to


                                          27
              Case: 12-15403      Date Filed: 11/01/2013   Page: 28 of 43


the Presidente Supermarket before filing this lawsuit, even after he had faced the

alleged barriers during his first visit.

       Turning to the 30.5 mile distance between Plaintiff Houston’s residence and

the Presidente Supermarket, we understand that this particular store is not the

closest supermarket to Houston’s home. But Houston explained his reason to go to

this store: he travels to Miami-Dade County, where the Presidente Supermarket is

located, “on a regular basis,” and Houston expects to be there in the future.

Houston takes these trips to Miami-Dade County because his lawyer’s offices are

located there—less than two miles from the Presidente Supermarket. And because

of his many ADA lawsuits, Plaintiff Houston “definitely” anticipates going to his

lawyer’s offices “in the near future.” Houston passes the Presidente Supermarket

on his way to and from his lawyer’s office. According to his affidavit, Houston

therefore “would return to the Defendant’s store to shop if [he] were able to park in

the parking spaces, have accessible restrooms, and be able to avail [him]self of the

store’s other facilities.”

       Under these particular, undisputed facts, we cannot say that a distance of

30.5 miles makes the threat of future injury conjectural. Of course, different facts

may demand a different conclusion. Plaintiff Houston lives in the next county. He

does not live hundreds of miles away from the store with no particular reason to

return.


                                           28
              Case: 12-15403     Date Filed: 11/01/2013    Page: 29 of 43


      In light of the totality of the undisputed facts here, we conclude that Plaintiff

Houston has standing to seek injunctive relief for violations of 42 U.S.C.

§§ 12182(a) and 12182(b)(2)(A)(iv) of the ADA’s Title III. See Shotz, 256 F.3d at

1081. There is no indication in the record that the alleged architectural barriers in

the Presidente Supermarket have been remedied. As a result, there is a 100 percent

likelihood that Plaintiff Houston will suffer the alleged injury again when he

returns to the store. Cf. 31 Foster Children v. Bush, 329 F.3d 1255, 1266 (11th

Cir. 2003) (holding that “when the threatened acts that will cause injury are

authorized or part of a policy, it is significantly more likely that the injury will

occur again”).

      The likelihood of Houston suffering future injury thus is not contingent upon

events that are speculative or beyond his control. Cf. Lyons, 461 U.S. at 107-09,

103 S. Ct. at 1668-69 (holding that the plaintiff lacked standing for injunctive relief

because it was speculative that police officers would arrest him again and that

those police officers would then apply an allegedly unconstitutional chokehold

again). Rather, the cause of the injury continues to exist, and the likelihood of

Houston encountering that cause in the future depends only on Houston’s own

volition. Houston has been to the store in the past, he wants to return, and his

frequent trips directly past the store render it likely that he would do so were it not

for the alleged ADA violations in the Presidente Supermarket. Under the totality


                                           29
                Case: 12-15403        Date Filed: 11/01/2013        Page: 30 of 43


of the facts here, the threat of future injury to Houston is not merely “conjectural”

or “hypothetical.” Instead, it is “real and immediate.” See Church v. City of

Huntsville, 30 F.3d 1332, 1337-39 (11th Cir. 1994) (finding standing for homeless

plaintiffs to seek injunctive relief to stop certain police practices). 6

C.     Lujan and Our Progeny

       We reject Defendant Marod’s argument that recognizing Houston’s standing

conflicts with the Supreme Court’s decision in Lujan v. Defenders of Wildlife, 504

U.S. 555, 112 S. Ct. 2130 (1992). We explain why.

       In Lujan, the Supreme Court considered the standing of two plaintiffs under

the Endangered Species Act. 504 U.S at 562-64, 112 S. Ct. 2137-38. The first

plaintiff sued to enjoin the rehabilitation of the Aswan High Dam in Egypt because

of endangered Nile crocodiles. Id. at 563; 112 S. Ct. at 2138. In a 1988 affidavit,

this first plaintiff stated that she had traveled to Egypt in 1986 and “‘observed the

traditional habitat of the endangered [N]ile crocodile there and intends to do so

again, and hopes to observe the crocodile directly.’” Id. (alterations adopted). She

also swore that she intended to return and at that time would “‘suffer harm in fact


       6
         As noted earlier, the district court applied a four-factor test to determine whether
Houston faces a real and immediate threat of future injury. Those four factors are (1) the
proximity of the defendant’s business to the plaintiff’s residence; (2) the plaintiff’s past
patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan to return; and
(4) the frequency of the plaintiff’s travel near the defendant’s business. While we considered
each of the four factors in reaching our decision today, we note that these factors are not
exclusive and that no single factor is dispositive. District courts must consider the totality of all
relevant facts to determine whether a plaintiff faces a real and immediate threat of future injury.
                                                  30
               Case: 12-15403   Date Filed: 11/01/2013   Page: 31 of 43


as the result of the American role in overseeing the rehabilitation of the Aswan

High Dam on the Nile and in developing Egypt’s Master Water Plan.’” Id.

(alterations adopted).

      The second plaintiff in Lujan sought to protect various endangered species in

Sri Lanka, after having traveled there only once, in 1981. Id. When questioned

about her intent to return to Sri Lanka during her deposition, the second plaintiff

confessed that she had no current plans: “‘I don’t know [when]. There is a civil

war going on right now. I don’t know. Not next year, I will say. In the future.’”

Id. at 564; 112 S. Ct. at 2138 (alterations adopted). Indeed, except for a

generalized wish to return to Egypt and Sri Lanka “in the future,” neither plaintiff

offered any indication as to when they would next visit the environmental treasures

they hoped to rescue. Id. at 563-64, 112 S. Ct. at 2138. The Supreme Court held

that “such ‘some day’ intentions—without any description of concrete plans, or

indeed even any specification of when the some day will be—do not support a

finding of the ‘actual or imminent’ injury that our cases require.” Id. at 564, 112 S.

Ct. at 2138.

      In Elend v. Basham, 471 F.3d 1199 (11th Cir. 2006), this Court relied on

Lujan in affirming the district court’s dismissal for lack of standing. Elend, 471

F.3d at 1209. In Elend, the plaintiffs protested outside of the Sun Dome in Tampa

when President George W. Bush attended a political rally there in 2002. Id. at


                                          31
             Case: 12-15403      Date Filed: 11/01/2013    Page: 32 of 43


1202. The Secret Service ordered the plaintiffs to move to a “protest zone,” which

was further away from the venue than the plaintiffs wished to be. Id. at 1202-03.

The plaintiffs sought to enjoin the Secret Service from taking similar action in the

future, and they claimed to have standing because they “fully intend to peacefully

express their viewpoints in the future in a manner similar to their activities on

November 2, 2002 in concert with presidential appearances at the . . . Sun Dome

and at other locations around the country.” Id. at 1204.

      In Elend, this Court affirmed the district court’s dismissal for lack of

standing. We explained that “the [p]laintiffs’ avowed intention to protest in a

similar manner in the future is akin to the plaintiff in Lujan who declared, ‘I intend

to go back to Sri Lanka [to observe endangered species], but confessed that she had

no current plans: I don’t know [when].’” Elend, 471 F.3d at 1209 (quoting Lujan,

504 U.S. at 564, 112 S. Ct. at 2138).

      In four additional cases, this Court applied Lujan’s holding that “some day

intentions” are not enough. See Nat. Parks Conservation Ass’n v. Norton, 324

F.3d 1229 (11th Cir. 2003); Fla. State Conf. of the NAACP v. Browning, 522 F.3d

1153 (11th Cir. 2008); ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d

1177 (11th Cir. 2009); Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010).

In all four cases, we concluded that the plaintiffs had Article III standing, given the

particular facts in each case.


                                          32
             Case: 12-15403      Date Filed: 11/01/2013    Page: 33 of 43


       First, in Norton, two environmental organizations sued the National Park

Service for violating the equal protection rights of their members by failing to evict

the occupants of the Stiltsville properties (buildings on stilts in the middle of

Biscayne National Park) following the expiration of the lease agreement between

the occupants and the National Park Service. 324 F.3d at 1231. The plaintiffs

claimed that this failure was “tantamount to the grant of an exclusive lease to the

occupants.” Id. at 1234.

      This Court reversed the district court’s dismissal for lack of standing in

Norton because the plaintiffs had visited the Biscayne Bay National Park

frequently in the past and “indicated an intent to maintain the frequency of these

visits in the future.” Id. at 1242. We emphasized that unlike the plaintiffs in

Lujan, the plaintiffs in Norton “state with particularity that they have definite plans

to continue visiting Stiltsville with precisely the same frequency that they have to

date, and that in the absence of remedial action they will continue to experience the

aesthetic and recreational harms described.” Id. at 1243.

      In Browning, we also concluded that the plaintiffs satisfied Lujan’s

immediacy requirement. 522 F.3d at 1161. There, a group of voting rights

organizations sued the State of Florida in September 2007, alleging that the state

violated a number of their members’ constitutional and statutory rights to vote. Id.

at 1158. The state required that all voter registration applicants provide


                                           33
             Case: 12-15403      Date Filed: 11/01/2013   Page: 34 of 43


information, such as an address and a driver’s license number. Id. at 1156. The

state would not register an applicant if the information provided by the applicant

did not match the state’s own information database. Id. at 1156-57. The plaintiffs

alleged that this procedure, in many cases, would leave applicants with too little

time to fix the database-matching error before voter rolls closed in advance of an

upcoming election. Id.

      In Browning, this Court affirmed the district court’s denial of the state’s

motion to dismiss for lack of standing. After explaining that “[a]n imminent injury

is one that is likely to occur immediately,” Browning, 522 F.3d at 1161, we noted

that the plaintiffs had alleged the “denial of voter registration and hence the right to

have one’s vote counted,” which would occur “before the scheduled elections in

November 2008.” Id. The plaintiffs also alleged that “they intend to increase

voter registration efforts and anticipate increased registration applications ahead of

the upcoming presidential election.” Id. We held that these allegations satisfied

Lujan’s immediacy requirement. Id.

      This Court reached the same conclusion in ACLU of Florida. In that case,

the parent of a student sought to enjoin the school board after that board removed a

certain book from the school’s library. ACLU of Fla., 557 F.3d at 1182-83. The

school board argued that the parent lacked standing because she failed to present

the imminent injury that Lujan requires. Id. at 1190.


                                          34
             Case: 12-15403     Date Filed: 11/01/2013   Page: 35 of 43


      This Court analyzed Lujan and synthesized our prior cases addressing

Lujan’s immediacy requirement. We concluded that “[t]he key in all . . . of our

decisions applying Lujan is that immediacy requires only that the anticipated injury

occur with[in] some fixed period of time in the future.” Id. at 1193 (internal

quotation marks omitted). We explained that “[i]mmediacy, in this context, means

reasonably fixed and specific in time and not too far off.” Id. at 1193-94.

      In light of this analysis, this Court concluded in ACLU of Florida that the

parent had standing. Her declaration stated that she had seen the book in question

in the library with her son and “had planned to check it out and read it together

[with her son] in the future.” Id. at 1194. The parent also averred that, without the

requested injunction, she and her son “will not be able to [check out the book]

when the school resumes on August 14, 2006.” Id. This Court noted that the

parent’s declaration anticipated checking out the book on a specific date six weeks

after the declaration was signed and, thus, provided “a specific intention pegged to

a sufficiently fixed period of time.” Id. We concluded that “Lujan and our

decisions interpreting it require no more immediacy than that.” Id. at 1195.

      This Court also distinguished Lujan in Harrell. The Harrell plaintiff alleged

that a Florida Bar Rule prohibited the type of advertisements he wanted to run, in

violation of his rights under the First Amendment. 608 F.3d at 1247. Relying on

the reasoning in Lujan, the district court dismissed the case for lack of standing


                                          35
              Case: 12-15403    Date Filed: 11/01/2013    Page: 36 of 43


after concluding that the plaintiff’s “claimed injury-in-fact was not sufficiently

concrete or imminent because he failed to identify a date on which he proposed to

run his desired advertisements.” Id. at 1260 n.7. This Court reversed because

“unlike the vague, ‘some day’ intentions of the wildlife enthusiasts in Lujan to

return to Egypt and observe a Nile crocodile, [the plaintiff’s] intense professional

dependence on advertising makes it very likely that he will attempt to run

advertisements of the kind he describes in his declaration.” Id.

      Applying these principles to Houston’s case before us, we conclude that our

decision today is wholly consistent with the reasoning in Lujan. Plaintiff

Houston’s intent to return to the Presidente Supermarket cannot be characterized as

the unspecified “some day” intentions that the Supreme Court found too

speculative in Lujan. 504 U.S. at 564, 112 S. Ct. at 2138. The Presidente

Supermarket is neither in Egypt nor in war-torn Sri Lanka. It is located in Miami-

Dade County, which is next to Broward County where Houston resides. Houston

shopped at the Presidente Supermarket twice in the months before filing this

lawsuit, whereas the Lujan plaintiffs’ visits to Egypt or Sri-Lanka occurred several

years before filing suit.

      Immediacy is an “elastic concept,” Lujan, 504 U.S. at 564 n.2, 112 S. Ct. at

2138 n.2, and in this context “means reasonably fixed and specific in time and not

too far off,” ACLU of Fla., 557 F.3d at 1193-94. This Court held that the


                                          36
             Case: 12-15403       Date Filed: 11/01/2013   Page: 37 of 43


plaintiffs in Norton, satisfied Lujan’s immediacy requirement because they had

visited the Biscayne Bay Park frequently in the past and intended to do so in the

future. 324 F.3d at 1243. Plaintiff Houston has traveled to Miami-Dade County

on a regular basis in the past and expects to do so in the near future. Indeed, he

drives right by the store on a regular basis, he entered the store on two prior

occasions, and he would do so again if the store were ADA compliant. That is

enough; like the plaintiffs in Norton, Houston has frequently visited the area near

the store in the past and will maintain the same frequency in the future. Id.

      Moreover, in Harrell, this Court held that the plaintiff satisfied Lujan

because his “intense professional dependence” on the activity that the defendant

prohibited made it likely that he would suffer the injury again. Harrell, 608 F.3d at

1260 n.7. Given that ADA testing appears to be Houston’s avocation or at least

what he does on a daily basis, the likelihood of his return for another test of the

Presidente Supermarket, which is located on his routine travel route, is

considerably greater than the Lujan plaintiffs’ return to far away countries with

unstable political situations. See Harrell, 608 F.3d at 1260 n.7 (distinguishing

Lujan by explaining that the nature of the plaintiff’s business renders the likelihood

of future injury greater than the “some day” aspirations to revisit Egypt and Sri

Lanka of the Lujan plaintiffs).

      Finally, Houston has offered the “description of concrete plans” that the


                                           37
             Case: 12-15403      Date Filed: 11/01/2013    Page: 38 of 43


Supreme Court found missing in Lujan: Plaintiff Houston visits his lawyer’s

offices near the Presidente Supermarket on a frequent basis and, thus, drives by the

store frequently. During these trips to his lawyer’s office in the near future, he

wants to visit the store. Unlike the plaintiffs in Lujan, Houston has averred a

concrete and realistic plan of when he would visit the store again.

      In sum, we conclude that under the specific facts in the record before us,

Plaintiff Houston has standing to seek injunctive relief against Defendant Marod.

We caution, however, that determining standing for injunctive relief is often a fact-

sensitive inquiry, as it is in this case. Each plaintiff must establish standing on the

facts of the case before the court. That is equally as true about a regular customer

of a public accommodation as it is for a tester like Plaintiff Houston.

                                 IV. CONCLUSION

      For the reasons set forth above, we vacate the district court’s dismissal for

lack of subject matter jurisdiction and remand for further proceedings consistent

with this opinion.

      VACATED AND REMANDED.




                                           38
              Case: 12-15403      Date Filed: 11/01/2013     Page: 39 of 43


BOWEN, District Judge, dissenting:

       Article III of the United States Constitution requires a genuine case or

controversy be before the court in order for the court to rule on it. Accordingly,

our standing jurisprudence exists to separate those cases that present a case or

controversy from those that simply ask the court to issue an advisory opinion. In

the present case, I fully agree with the district court that this plaintiff “tester”

lacked standing to sue. Therefore, I respectfully dissent from the scholarly,

detailed, but mistaken opinion of the majority.

       The Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213

(2006), is counted among the most salutary remedial laws ever passed by a well-

intended Congress. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 676 (2001)

(“[T]he [ADA] has been described as a milestone on the path to a more decent,

tolerant, and progressive society.”) (internal quotations and citations omitted).

Because of its commendable purpose, its provisions are liberally construed. See §

12101(b)(1) (“It is the purpose of [the ADA] to provide a clear and comprehensive

national mandate for the elimination of discrimination against individuals with

disabilities.”); Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)

(“[T]he fact that a statute can be applied in situations not expressly anticipated by

Congress does not demonstrate ambiguity. It demonstrates breadth.”). The district

court, mindful of its obligations under the law, approached this case with


                                            39
               Case: 12-15403       Date Filed: 11/01/2013       Page: 40 of 43


circumspection, obedient to Congress’ intent and the mandate of the ADA.

       Consistent with Rule 12(b)(1) of the Federal Rules of Civil Procedure, the

district court assembled, reviewed, and determined whether underlying facts

supported its subject-matter jurisdiction in the instant matter. See U.S. Const. Art.

III § 2 (“The judicial Power shall extend to . . . Cases [and] . . . Controversies.”).

Those facts, properly considered by the district court, are beyond cavil.

       The Plaintiff is a serial litigator. The misfortune of his disability does not

make him less so. Plaintiff has been a party to 170 cases in the Southern District

of Florida and 101 in the Middle District.1 His travels up, down, and across the

byways of South Florida, doggedly in search of a grievance to call his own, are

worthy of a Carl Hiassen plot. Seeking injunctions, costs in every variety, and

monetary grist for the mills of his attorneys’ offices (the wheels of which surely

grind exceeding expensive), this plaintiff is doubtless a force with which many a

small business will reckon.

       In a thoroughly departmental way, the majority parsed the prongs and

principles of standing better applied to a more typical plaintiff in a more

conventional case. There is nothing conventional about this matter. The district

court (in more polite terms) identified the Plaintiff for what he is: the volunteer


       1
          It should be noted that, unless he has been allowed some remission or reduction thereof,
Plaintiff’s filing fees alone in these cases would amount to $108,000.00 at today’s rates in the
two districts.
                                                40
             Case: 12-15403     Date Filed: 11/01/2013   Page: 41 of 43


point man for a litigation combat patrol.

      The majority fail to see a distinguishing principle between the roles of a

“tester” under the ADA and a “tester” under the Fair Housing Act, 42 U.S.C. §§

3601-3631 (2006). To me, the distinction readily appears. In a Fair Housing Act

case, the permit extended to a “tester” is grounded in necessity. In such an

endeavor the “tester” is seeking to unearth information and evidence which bears

upon the motive, intent, and state of mind of those who would covertly or secretly

practice invidious discrimination. Cf. Sec’y of U.S. Dep’t of Hous. and Urban

Dev. ex rel. Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990) (applying the

burden-shifting framework used in a Title VII employment discrimination case to

root out veiled discrimination in a FHA case) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973)). On the other hand, in an ADA case the so-called

“tester” is a self-appointed private attorney general foraging for conditions,

defects, and shortcomings which are physically manifest for all who would see.

Accordingly, even the nomenclature of a “tester” in a Title III ADA case is

inappropriate.

      The district court did not dismiss the case because it labeled Houston a

“tester.” It dismissed Houston’s complaint because this plaintiff has no standing to

bring this case. As found by the district court, “The ADA permits suits to be

brought by any person who is subjected to discrimination on the basis of disability


                                            41
             Case: 12-15403      Date Filed: 11/01/2013    Page: 42 of 43


or who has reasonable grounds for believing that he is about to be subjected to

discrimination on that basis.” Nevertheless, although Congress may create legal

rights and interests in others, it may not bypass the Constitution’s “Case or

Controversy” requirement. Warth v. Seldin, 422 U.S. 490, 501 (1975). Thus, as

the district court properly observed, the fundamental issue before it was whether

Houston had “constitutional standing to bring this action against [Marod

Supermarkets].”

      The crux of the district court’s inquiry was whether the plaintiff had

demonstrated a likelihood that he would “return to [Presidente Supermarket] and

continue to suffer” from its noncompliance with the ADA. Carefully sifting

Houston’s complaint and supplemental affidavit, the district court found four

factors dispositive in its inquiry: (1) the thirty-plus miles separating the

Supermarket and Houston’s residence; (2) Houston’s negligible previous patronage

of the defendant’s business; (3) Houston’s “plans” to return to the Supermarket,

not to continue his nonexistent patronage of the Supermarket, but rather to only

further his litigation interests; and (4) Houston’s intermittent travel to his

attorneys’ law offices to pursue his litigation interests. The district court ultimately

concluded that Houston failed to demonstrate the threat of an actual and imminent

injury at the hands of Defendant. Moreover, Houston’s vague, generalized

affidavit and own reference to Defendant’s Supermarket as a “motel” further


                                           42
              Case: 12-15403      Date Filed: 11/01/2013    Page: 43 of 43


heightened the court’s skepticism that his complaint was “a genuine prayer for

relief made by an aggrieved party.”

       It is my conclusion that the district court was not only not clearly erroneous,

but entirely correct in its decision that this plaintiff “tester” lacked standing to sue.

That this plaintiff has uttered some incantations about his intentions to visit a

grocery store over thirty miles from his home (about a gallon of gasoline in the

best of cars), possibly to make another eighteen-dollar purchase, should be of no

avail. This Court should see this case as the district court saw it–-a disingenuous

medium for self-promotion and the multiplication of attorney’s fees. See 42

U.S.C. § 12205. Despite Houston’s obvious intent in pursuing these 271 lawsuits,

“‘[t]he province of the Court is solely to decide on the rights of individuals.’

Vindicating the public interest . . . is the function of Congress and the Chief

Executive.” Lujan, 504 U.S. at 576 (1992) (quoting Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 170 (1803) (Marshall, C.J.)) (emphasis added).

       The majority’s rigid focus on the conventional criteria for standing obscures

the facts the district court so clearly perceived. “What you see, yet cannot see

over, is as good as infinite.” Thomas Carlyle, 2 Sartor Resartus 84 (London,

William Clowes & Sons 1838) (1833).

       Because this plaintiff lacks standing to bring this lawsuit, I would affirm the

district court in its dismissal of the case.


                                               43
