Doran v. 7-Eleven, Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY DORAN, 
Plaintiff-Appellant, No. 05-56439
v.
 D.C. No.
CV-04-01125-JVS
7-ELEVEN, INC., d/b/a 7-ELEVEN;
SOUTHLAND CORP., OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
April 16, 2007—Pasadena, California
Filed November 9, 2007
Before: Jerome Farris and Ronald M. Gould, Circuit Judges,
and Kevin Thomas Duffy,* District Judge.
Per Curiam Opinion;
Dissent by Judge Duffy
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
14761
14764 DORAN v. 7-ELEVEN, INC.
COUNSEL
Lynn Hubbard, III and Scottlynn J. Hubbard, IV, Law Offices
of Lynn Hubbard, Chico, California, for plaintiff-appellant
Jerry Doran.
DORAN v. 7-ELEVEN, INC. 14765
Scott J. Ferrell, Julie R. Trotter, and Melinda Evans, Call, Jen-
sen & Ferrell, Newport Beach, California, for defendants-
appellees 7-Eleven, Inc. and Southland Corp.
OPINION
PER CURIAM:
We review an order of the district court granting summary
judgment to 7-Eleven, Inc. in Jerry Doran’s suit under the
Americans With Disabilities Act (“ADA”). We affirm the dis-
trict court’s summary judgment on certain alleged ADA viola-
tions Doran encountered or of which he had personal
knowledge. However, because the district court erred in con-
cluding that Doran did not have standing to challenge other
barriers related to his disability and identified in his expert’s
site inspection, we partially vacate the district court’s order
granting summary judgment, and we remand for further pro-
ceedings.
I
Doran is a paraplegic who uses a wheelchair for mobility
and travels in a wheelchair-accessible minivan. Doran lives in
Cottonwood, California, but has on several occasions visited
the 7-Eleven store on North Harbor Boulevard in Anaheim,
California. This 7-Eleven store is about 550 miles from his
home. In September 2004, Doran filed suit in the district
court, alleging that the North Harbor 7-Eleven store contained
barriers that denied him full and equal access to the store, that
he had personally encountered barriers at the store, and that
the barriers deterred him from visiting the store. He requested
injunctive relief under Title III of the ADA and injunctive
relief and monetary damages under California law.
In a deposition taken on May 19, 2005, Doran testified that
he had encountered or had knowledge of nine alleged barriers
14766 DORAN v. 7-ELEVEN, INC.
at the 7-Eleven store: (1) that there was no van-accessible
parking nor any sign denoting such parking; (2) that the strip-
ing outlining the disabled parking space was faded; (3) that
there was no sign designating the location of the wheelchair
ramp; (4) that the wheelchair ramp was too steep; (5) that the
store aisles were too narrow; (6) that the entry mat obstructed
entry to the store; (7) that disabled patrons were denied access
to the employees-only restroom; (8) that the floor space was
obstructed by merchandise; and (9) that there were no direc-
tional signs indicating the nearest accessible store entrance.
On June 23, 2005, the magistrate judge issued a discovery
order allowing Doran to conduct a site inspection of the store
but limiting the inspection to barriers that Doran testified he
had encountered or knew about but did not personally
encounter. The district court denied Doran’s motion for
review of the magistrate judge’s ruling. Despite the limited
scope of the discovery order, Doran’s expert inspected the
store and identified barriers, beyond those Doran identified in
his deposition, that would potentially impact mobility-
impaired individuals. The expert reported that, among other
things, the cashier’s counter and ATM were too high, the con-
diment counter required too long of a reach, and the accessi-
ble parking spaces were too sloped.
The district court granted summary judgment to 7-Eleven
on all of Doran’s ADA claims. The court held that Doran did
not have standing to challenge the barriers first identified in
the expert report because Doran neither encountered nor had
personal knowledge of those barriers. As to the nine barriers
that Doran testified he had encountered or had known about,
the district court held either that 7-Eleven had already
removed them or that Doran had failed to provide any evi-
dence that the alleged barriers violated the ADA. As specifi-
cally relevant to this appeal, the district court held that (1)
Doran produced no evidence that the store aisles were too nar-
row under the ADA Accessibility Guidelines or that 7-Eleven
maintained an aisle-width policy that violated the ADA and
DORAN v. 7-ELEVEN, INC. 14767
(2) excluding disabled patrons from the store’s employees-
only restroom did not violate the ADA. After granting sum-
mary judgment to 7-Eleven on Doran’s federal claims, the
district court declined to exercise supplemental jurisdiction
over Doran’s state law claims and dismissed them without
prejudice.
II
Both parties raise standing issues. 7-Eleven argues that
Doran cannot establish that the North Harbor 7-Eleven store
poses an immediate threat of harm to him because it is more
than 500 miles away from his home and that Doran therefore
lacks standing to sue concerning any of the store’s barriers.
Doran, on the other hand, argues that a disabled person has
standing to challenge all of the barriers related to his disability
in a place of public accommodation, not just those he had
encountered or those of which he had personal knowledge.1
The doctrine of standing is based both on prudential con-
cerns and on constitutional limitations on the jurisdiction of
the federal courts. Bennett v. Spear, 520 U.S. 154, 162 (1997);
Warth v. Seldin, 422 U.S. 490, 498 (1975). To determine
whether a dispute presents a case or controversy sufficient to
give us jurisdiction under Article III of the Constitution, we
apply a three-element test formulated by the Supreme Court:
First, the plaintiff must have suffered an “injury in
fact”—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between
1
The existence of standing is a question of law that we review de novo.
Mortensen v. County of Sacramento, 368 F.3d 1082, 1086 (9th Cir. 2004).
We may affirm summary judgment on any ground supported by the
record. Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the
Navy, 383 F.3d 1082, 1086 (9th Cir. 2004).
14768 DORAN v. 7-ELEVEN, INC.
the injury and the conduct complained of . . . . Third,
it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable deci-
sion.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(internal quotation marks, citations, and footnote omitted).
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.” Trafficante v.
Metro. Life Ins. Co., 409 U.S. 205, 209 (1972); see also 42
U.S.C. § 12188(a) (providing private right of action for
injunctive relief against public accommodations that violate
the ADA).
We previously addressed the injury-in-fact prong of the
Article III standing test in another ADA case in which Doran
was the plaintiff: Pickern v. Holiday Quality Foods Inc., 293
F.3d 1133 (9th Cir. 2002). In that case, Doran brought suit
challenging architectural barriers in a Holiday Foods grocery
store in Paradise, California that was 70 miles from his home,
but near the home of his grandmother who he visited fre-
quently. Id. at 1135. Before filing suit, Doran had visited the
Paradise Holiday Foods only twice. Id. at 1136. During his
first visit, which occurred outside the relevant statute of limi-
tations period, Doran personally encountered architectural
barriers. Id. at 1135. During Doran’s second visit, because of
the barriers in the store, he had to wait in the parking lot while
his companion went into the store on his behalf. Id. at 1136.
Doran’s second trip to the store occurred within the limita-
tions period. Id. But because Doran’s personal encounter with
the barriers had occurred outside the limitations period, one
of the questions before us was whether he had suffered an
injury in fact within the limitations period sufficient to give
him standing. Id. at 1137.
As to Lujan’s requirement that an injury be concrete and
particularized, we held “that in stating that he is currently
DORAN v. 7-ELEVEN, INC. 14769
deterred from attempting to gain access to the Paradise store,
Doran has stated sufficient facts to show concrete, particular-
ized injury.” Id. at 1137-38. As to Lujan’s requirement that a
plaintiff’s injury be actual or imminent, we held
that a disabled individual who is currently deterred
from patronizing a public accommodation due to a
defendant’s failure to comply with the ADA has suf-
fered “actual injury.” Similarly, a plaintiff who is
threatened with harm in the future because of exist-
ing or imminently threatened non-compliance with
the ADA suffers “imminent injury.”
Id. at 1138.
A
As noted above, 7-Eleven argues that Doran lacks constitu-
tional standing to challenge any of the alleged barriers in the
North Harbor 7-Eleven because the store is so far away from
his home.
However, Doran has suffered an injury that is concrete and
particularized because he alleged that he personally suffered
discrimination as a result of the barriers in place during his
visits to 7-Eleven and that those barriers have deterred him
from continuing to patronize the store. See Pickern, 293 F.3d
at 1137-38; see also Parr v. L & L Drive-Inn Rest., 96 F.
Supp. 2d 1065, 1079 (D. Haw. 2000) (“Plaintiff’s desire to
patronize Defendant’s restaurant free from discrimination is
clearly a cognizable interest for the purposes of standing.”).
[1] As to whether Doran’s injury is actual or imminent,
Doran alleged that he had visited the 7-Eleven store on ten to
twenty prior occasions, that he is currently deterred from vis-
iting the store because of its accessibility barriers, that the
store is conveniently located near his favorite fast food restau-
rant in Anaheim, and that he plans to visit Anaheim at least
14770 DORAN v. 7-ELEVEN, INC.
once a year on his annual trips to Disneyland. Allegations that
a plaintiff has visited a public accommodation on a prior
occasion and is currently deterred from visiting that accom-
modation by accessibility barriers establish that a plaintiff’s
injury is actual or imminent. Pickern, 293 F.3d at 1138; Mol-
ski v. Arby’s Huntington Beach, 359 F. Supp. 2d 938, 947
(C.D. Cal. 2005) (holding that a plaintiff suffered actual and
imminent injury when he alleged (1) that he visited an accom-
modation in the past; (2) that he was currently deterred from
returning to the accommodation because of ADA violations;
and (3) that he would return if the ADA violations were reme-
died); Parr, 96 F. Supp. 2d at 1079 (noting that past patronage
plus a sincere intent to return renders an injury actual or
imminent); see also Disabled Ams. for Equal Access, Inc. v.
Ferries del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005)
(granting standing to an ADA plaintiff who had visited a
cruise ship on three previous occasions and averred an intent
to do so again at some nonspecific future time). Notwithstand-
ing the distance between Doran’s home and the 7-Eleven,
there is an actual or imminent threat that, during his planned
future visits to Anaheim, Doran will suffer harm as a result of
the alleged barriers.
[2] We hold that Doran has suffered an injury in fact that
is concrete, particularized, actual, and imminent. Doran there-
fore has constitutional standing to bring his suit challenging
accessibility barriers in the North Harbor 7-Eleven store.
B
We next address Doran’s argument that the district court
erred in ruling that he had standing to challenge only those
barriers that he had encountered or about which he had per-
sonal knowledge.
It is of signal importance that the parties do not dispute that
Doran personally encountered or had personal knowledge of
nine barriers to accessing the North Harbor 7-Eleven store in
DORAN v. 7-ELEVEN, INC. 14771
his wheelchair. We concluded above that Doran’s encounters
with and knowledge of those barriers gave him Article III
standing at the time he filed his complaint. See Lujan, 504
U.S. at 560; Pickern, 293 F.3d at 1138. This standing gets him
inside the courthouse door and brings his Article III case for-
ward for our judicial evaluation.2
[3] There remains a question, however, about the scope of
barriers that Doran may challenge. This question requires us
to consider the precise nature and scope of the injury that
Doran and similarly situated plaintiffs have suffered when
they encounter what they allege to be architectural barriers
violative of the ADA, both in the context of Article III’s
injury-in-fact requirement and in the context of the ADA
itself. As we discussed in part A above, Doran encountered
several barriers to accessing the North Harbor 7-Eleven in his
wheelchair, and these barriers deterred him from attempting
to enter the store again. This deterrent effect in turn prevented
Doran from discovering what other access barriers might exist
within the store that he had not encountered on his previous
visits. In other words, the reason that he did not know the full
scope of 7-Eleven’s ADA violations when he filed his com-
plaint is that the violations he did know about deterred him
from conducting further first-hand investigation of the store’s
accessibility. Where this deterrence itself has been identified
2
The dissent contends that our opinion would “preempt the Constitu-
tion” by “confer[ring] standing [on ADA plaintiffs] . . . for things that did
not injure” them. However, the above discussion with respect to Doran
makes clear that it is the access barriers that the ADA plaintiff actually
encountered or about which he had personal knowledge that “confer”
standing on him under Article III. Once a disabled individual has encoun-
tered or become aware of alleged ADA violations that deter his patronage
of or otherwise interfere with his access to a place of public accommoda-
tion, 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 to bring his claim for injunctive relief forward.
See Lujan, 504 U.S. at 560-61. The only remaining question is one of
scope: namely, what particular alleged ADA violations he may include in
that claim for injunctive relief.
14772 DORAN v. 7-ELEVEN, INC.
as the injury conferring standing to sue on an ADA plaintiff,
see Pickern, 293 F.3d at 1137-38, it would be ironic if not
perverse to charge that the natural consequence of this deter-
rence, the inability to personally discover additional facts
about the defendant’s violations, would defeat that plaintiff’s
standing to challenge other violations at the same location that
subsequently come to light. This, however, is the crux of 7-
Eleven’s position.
[4] However, it is also 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. Doran suffered
“discrimination” within the meaning of Title III of the ADA,
as well as a legally cognizable injury for purposes of Article
III standing, the first time that he encountered architectural
barriers at the North Harbor 7-Eleven. The relevant section of
the ADA provides that “discriminat[ion] . . . on the basis of
disability” includes “a failure to remove architectural barriers
. . . where such removal is readily achievable.” 42 U.S.C.
§ 12182. While 7-Eleven did remove some of the architectural
barriers at the North Harbor location about which Doran had
complained, others remained in place that would have inter-
fered with his access as a wheelchair user, as evidenced by the
site inspection of Doran’s expert. Thus the discrimination
against Doran, and the corresponding Article III injury of
deterrence from visiting the store, continued even after the
violations he initially listed were corrected. Although he is
aware of this fact because his expert had an opportunity to
inspect the location, many disabled individuals will not have
this chance and so, under the district court’s view, would have
uncertainty about whether the list of access barriers they per-
chance encountered or learned about before being deterred
from entry is exhaustive or whether other, potentially danger-
ous obstacles to a person with their disability remain in place,
only to be encountered when the disabled persons return to
the site after the “successful” conclusion of their suit. Such
uncertainty is itself an actual, concrete and particularized
DORAN v. 7-ELEVEN, INC. 14773
injury under the deterrence framework of standing articulated
in Pickern, for when a disabled individual knows that a facil-
ity is noncompliant with the ADA in at least some respects
but does not know the full extent of the noncompliance, he or
she is likely to be deterred from returning to that facility, even
if some of the violations are corrected, until he or she can get
more information about the extent of the violations. This pre-
sents a real and concrete burden for a disabled person, espe-
cially when unknown violations may pose safety hazards to
that individual.
[5] Reinforcing 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 defen-
dant’s violations that he or she was unable to ascertain per-
sonally because of those same violations. This course is
consistent with Constitutional requirements, for we have been
instructed to take a broad view of Article III standing in civil
rights cases where private rights of action are the primary
means of enforcing the statute. See Trafficante, 409 U.S. at
209. Indeed, the enforcement scheme of Title III of the ADA
would be severely undermined if we were to adopt the piece-
meal approach to standing advocated by 7-Eleven. The statute
provides that where an individual, like Doran, has suffered
discrimination in the form of a refusal to remove architectural
barriers, he may seek injunctive relief including “an order to
alter facilities to make such facilities readily accessible . . .
and usable.” 42 U.S.C. § 12188(a)(2). Such injunctive relief
could not be crafted, however, if the parties had not been
allowed to determine through discovery precisely what barri-
ers prevented the facility in question from being “readily
accessible to and usable by” Doran. We therefore hold that
where a disabled person has Article III standing to bring a
claim for injunctive relief under the ADA because of at least
one statutory violation of which he or she has knowledge and
which deters access to a place of public accommodation, he
14774 DORAN v. 7-ELEVEN, INC.
or she may conduct discovery to determine what, if any, other
barriers affecting his or her disability existed at the time he or
she brought the claim. This list of barriers would then in total
constitute the factual underpinnings of a single legal injury,
namely, the failure to remove architectural barriers in viola-
tion of the ADA, which failure actually harmed the disabled
person by deterring that disabled person from visiting a facil-
ity that otherwise would have been visited at a definite future
time, yielding Article III standing. See Pickern, 293 F.3d at
1138.
[6] This question regarding the breadth of Doran’s right to
sue also implicates the prudential aspects of the standing doc-
trine. See Bennett, 520 U.S. at 164; Warth, 422 U.S. at 499;
Wilson v. Pier 1 Imports (US), Inc., 413 F. Supp. 2d 1130,
1135 (E.D. Cal. 2006). “[P]rudential standing . . . embodies
judicially self-imposed limits on the exercise of federal juris-
diction.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S.
1, 11 (2004). These limits include “the general prohibition on
a litigant’s raising another person’s legal rights, the rule bar-
ring adjudication of generalized grievances more appropri-
ately addressed in the representative branches, and the
requirement that a plaintiff’s complaint fall within the zone of
interests protected by the law invoked.” Allen v. Wright, 468
U.S. 737, 751 (1984).
In Pickern, in the course of holding that Doran’s deterrence
from visiting the Paradise Holiday Foods was an injury in
fact, we stated our agreement with the Eighth Circuit’s hold-
ing in Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000).
Pickern, 293 F.3d at 1138. In Steger, the Eighth Circuit
directly addressed the scope of barriers an ADA plaintiff
could challenge. In that case, a blind plaintiff had entered the
defendant’s office building one time before filing an ADA
suit. Steger, 228 F.3d at 893. During that visit, the plaintiff
entered the common area of the building to access the men’s
restroom, but he was unable to find the restroom because the
building’s signage did not comply with the ADA. Id. The
DORAN v. 7-ELEVEN, INC. 14775
plaintiff filed suit, challenging all of the ADA violations in
the building, both related and unrelated to his disability of
blindness. Id.
The Eighth Circuit held that the plaintiff lacked standing to
challenge the ADA violations unrelated to his particular dis-
ability. Id. However, the court did not limit the blind plain-
tiff’s standing to only the signage barrier that he had
personally encountered. See id. at 893-94. The plaintiff’s
expert presented evidence that the building contained many
ADA violations that could injure blind persons. Id. at 893.
The Eighth Circuit observed that a rule limiting the plaintiff’s
standing to the signage barrier he personally encountered and
forbidding the plaintiff from challenging other barriers related
to his disability would result in “piecemeal compliance” with
the ADA. Id. at 894. The court reasoned that “[t]o compel a
building’s ADA compliance, numerous blind plaintiffs, each
injured by a different barrier, would have to seek injunctive
relief as to the particular barrier encountered until all barriers
had been removed.” Id. The court therefore concluded that the
blind plaintiff had standing to seek relief for any ADA viola-
tion in the defendant’s building “affecting his specific disabil-
ity.” Id.
Though the Eighth Circuit in Steger couched its opinion in
terms of Article III’s irreducible requirement of standing, we
think the more compelling elements of the Steger analysis
involve considerations relevant to prudential standing. In the
ADA context, constitutional limits on standing ensure that we
do not adjudicate a case where a plaintiff does not have an
actual or imminent, concrete injury, caused by the discrimina-
tion challenged in the suit, which is redressable by judicial
decision. Here, as in Steger, the requirements of constitutional
standing were met where the plaintiff encountered one barrier
related to his disability and, because of that barrier and his
attendant inability fully to access the facility, was unable to
determine what other barriers might also obstruct his access
and so was deterred from attempting to enter the facility
14776 DORAN v. 7-ELEVEN, INC.
again. Prudential limits on standing, by contrast, ensure that
we do not “decide abstract questions of wide public signifi-
cance even though other governmental institutions may be
more competent to address the questions and even though
judicial intervention may be unnecessary to protect individual
rights.” Warth, 422 U.S. at 500.
In this case, Doran seeks to cure the North Harbor 7-Eleven
store of all ADA violations that impede his full enjoyment of
the facility as a wheelchair user. Because Doran challenges
only those barriers that affect his specific disability and there-
fore impinge on his individual right to fully enjoy the 7-
Eleven store, the case before us presents neither abstract ques-
tions nor questions better answered by other governmental
bodies. In light of Doran’s personal desire to return to the 7-
Eleven store and the deterrence imposed by the barriers
within the store, our intervention is necessary to protect the
individual rights conferred on Doran by the ADA. See 42
U.S.C. § 12182(a) (“No individual shall be discriminated
against on the basis of disability in the full and equal enjoy-
ment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation.
. . .”).
Concerns of judicial economy properly affect our resolu-
tion of prudential standing disputes. See, e.g., United Food &
Commercial Workers Union Local 751 v. Brown Group, Inc.,
517 U.S. 544, 557 (1996) (noting that the prudential standing
rules focus on “matters of administrative convenience and
efficiency”); Ecological Rights Found. v. Pac. Lumber Co.,
230 F.3d 1141, 1147 n.6. (9th Cir. 2000). The rule proposed
by 7-Eleven, permitting a plaintiff to challenge only barriers
that he or she personally encountered or of which the plaintiff
had first-hand knowledge, not only would invite but would
require disabled plaintiffs to engage in piecemeal litigation to
eliminate barriers the ADA prohibits. A thought experiment
illustrates:
DORAN v. 7-ELEVEN, INC. 14777
Suppose a wheelchair-bound person cannot access a restau-
rant because the restaurant has no place to park a wheelchair-
accessible van and the only entry to the restaurant is up a
flight of stairs. Suppose further that, inside the restaurant, an
additional flight of stairs precludes wheelchair access to the
dining room and that the table layout does not permit wheel-
chair egress. Under 7-Eleven’s proposed rule, when the dis-
abled person initially cannot enter the restaurant to encounter
or gain personal knowledge of the barriers within it, the dis-
abled person as a plaintiff does not have standing to challenge
the barriers inside the restaurant. So, the disabled person sues,
challenging only the barriers encountered—the lack of a park-
ing space and the lack of an accessible entry. Victorious in
that case, the disabled person parks his or her van in the res-
taurant’s new handicapped parking space and, on a new
wheelchair ramp, enters the restaurant for a meal, only to dis-
cover the accessibility problems with the internal stairs and
table layout. The restaurant is still inaccessible. The parking
and entry problems remedied by the prior litigation only fos-
tered an illusion of accessibility, and the restaurant still cannot
be fully enjoyed by a person in a wheelchair.
Suppose the disabled person brings a second lawsuit, and
this results in removal of the inside stairs that pose a barrier.
Returning to the restaurant again, in hopes of a victory meal,
the disabled person now gets in the door and by a ramp or lift
gets past the internal stairs, only to find that the table layout
prohibits access from a wheelchair. If that problem is reme-
died by another lawsuit, the disabled person may still encoun-
ter another barrier, say, an inaccessible restroom that, for
practical purposes, rules out his or her use of this restaurant.
Under 7-Eleven’s proposed rule, because the plaintiff did not
encounter and could not discover3 the internal stairs and the
3
Under 7-Eleven’s proposed rule, the disabled person would not be per-
mitted to conduct discovery about the barriers inside the restaurant in the
first case because Federal Rule of Civil Procedure 26(b)(1) limits the
scope of discovery to matters relevant to the claims of a party. Barriers
within the restaurant would be irrelevant to a claim challenging barriers
outside the restaurant.
14778 DORAN v. 7-ELEVEN, INC.
table and restroom barriers in the first case, the plaintiff must
file a succession of suits to challenge newly-encountered bar-
riers. It might be argued that the example is somewhat exag-
gerated because the disabled person could perhaps get a
person who was not disabled to scout out any barrier before
suing, thereby giving the disabled person knowledge of the
internal barriers. However, to force the disabled person’s reli-
ance on some other person is inconsistent with the ADA’s
goals and another person’s assessment, apart from that of an
expert, might be less knowledgeable about how barriers can
preclude a disabled person’s full use and enjoyment of a pub-
lic accommodation.
This precautionary tale makes clear that a rule limiting a
plaintiff to challenging the barriers he or she had encountered
or personally knew about would burden businesses and other
places of public accommodation with more ADA litigation,
encourage piecemeal compliance with the ADA, and ulti-
mately thwart the ADA’s remedial goals of eliminating wide-
spread discrimination against the disabled and integrating the
disabled into the mainstream of American life. See PGA Tour,
Inc. v. Martin, 532 U.S. 661, 674-75 (2001). 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.4
We do not believe Congress could have intended such a con-
stricted reading of the ADA which could render the benefits
it promises largely illusory. So long as there is an actual or
imminent injury from a barrier encountered or about which a
4
With respect, the dissent’s hypothetical story about the possibility of
claims against multiple shopping center establishments is fanciful and far
off the mark. All that our opinion does today is to explore the scope of the
Article III claims that Doran has against 7-Eleven once it violated his
rights under the ADA. Our ruling does not in any way suggest that a per-
son precluded from visiting a shopping center by lack of a disabled park-
ing space at the shopping center could automatically have discovery
against multiple establishments in the center that were not responsible for
the injury to the disabled person caused by the lack of accessible parking.
DORAN v. 7-ELEVEN, INC. 14779
person had knowledge, deterring use of the public accommo-
dation, the disabled person has standing to enter our court sys-
tem. The scope of discovery and claims should then naturally
permit challenge to any barriers to use related to that person’s
disability.
[7] Prudential standing principles, practical concerns about
piecemeal litigation, and our prior endorsement of the holding
of Steger leads us to hold the following: 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 bar-
rier, has suffered an injury in fact for the purpose of Article
III. Pickern, 293 F.3d at 1138. 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 chal-
lenge all barriers in that public accommodation that are
related to his or her specific disability. Steger, 228 F.3d at
894.
Although we view the issue as primarily one of prudential
standing, our holding is fully consistent with the Supreme
Court’s Article III standing discourse. In Sierra Club v. Mor-
ton, the Supreme Court emphasized that “the ‘injury in fact’
test . . . requires that the party seeking review be himself
among the injured.” 405 U.S. 727, 734-35 (1972), quoted in
Lujan, 504 U.S. at 563. In this case, there is no doubt that
Doran is one of those injured by all of the barriers that impede
a wheelchair user’s access to and full enjoyment of the North
Harbor 7-Eleven store.5 The Supreme Court has repeatedly
5
Of course, Doran is not among the class of persons injured by ADA
violations in the 7-Eleven store that do not relate to Doran’s particular
disability—that he must use a wheelchair for mobility. For that reason,
Doran cannot challenge all of the ADA violations in the 7-Eleven store.
For example, Doran does not have standing to challenge those barriers that
would burden or restrict access for a person who is blind. Doran may chal-
lenge only those barriers that might reasonably affect a wheelchair user’s
full enjoyment of the store. Steger, 228 F.3d at 893.
14780 DORAN v. 7-ELEVEN, INC.
instructed that “ ‘the gist of the question of standing’ is
whether [the plaintiff has] ‘such a personal stake in the out-
come of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the
court so largely depends for illumination.’ ” Massachusetts v.
EPA, 127 S. Ct. 1438, 1453 (2007) (quoting Baker v. Carr,
369 U.S. 186, 204 (1962)). Even 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. See id.
[8] We hold that Doran has standing to sue for injunctive
relief for all barriers in the North Harbor 7-Eleven store
related to his specific disability, including those identified in
his expert’s site inspection. The district court’s conclusion to
the contrary was erroneous.
III
Doran also argues that the district court erred in granting
summary judgment to 7-Eleven on the issues of whether the
store’s aisle width and the store’s refusal to allow him to
access the employees-only restroom were ADA violations.
We review a grant of summary judgment de novo. Pan Pac.
Retail Prop., Inc. v. Gulf Ins. Co., 471 F.3d 961, 965 (9th Cir.
2006). Summary judgment is proper if “there is no genuine
issue as to any material fact and . . . the moving party is enti-
tled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Doran bears the burden of producing sufficient evidence to
defeat summary judgment regarding each of the store’s
alleged ADA violations because he would bear the burden of
proving such violations at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
A
[9] Doran relies on two pieces of evidence to show that the
store’s aisle width violates the ADA. Neither raises a genuine
DORAN v. 7-ELEVEN, INC. 14781
issue of material fact as to the width of the aisles. First, Doran
relies upon the affidavit of Joseph Gengo, 7-Eleven’s Divi-
sion Construction Manager, in which Gengo stated “there is
at least 32 inches of clear space within the aisles.” Doran
argues that this statement is a tacit admission that the store’s
aisles are less than the thirty-six inches required by the ADA
Accessibility Guidelines. See 28 C.F.R. Ch. 1, Pt. 36, App. A,
§ 4.3.3 (2006). However, Gengo’s statement was a response
to Doran’s allegation that “some aisles are less than 32 inches
wide.” The district court properly concluded that Gengo’s
statement says nothing about whether the aisles are more or
less than thirty-six inches.
Second, Doran identifies his own testimony that he scraped
his knuckles on the edge of the aisles while shopping as estab-
lishing a factual issue regarding the aisles’ insufficient width.
Doran bears the burden of showing a violation of the ADA
Accessibility Guidelines, the substantive standard of ADA
compliance. See Or. Paralyzed Veterans of Am. v. Regal Cin-
emas, Inc., 339 F.3d 1126, 1129 (9th Cir. 2003). That Doran
scraped his knuckles, unsupported by any measurements, is
insufficient to demonstrate that 7-Eleven’s aisles do not com-
ply with the thirty-six-inch clearance that the Accessibility
Guidelines mandate.
B
As to the grant of summary judgment to 7-Eleven regarding
7-Eleven’s refusal to let Doran use the store’s employees-only
restroom, the district court held that the exclusion of a dis-
abled plaintiff from an employees-only restroom does not vio-
late the ADA. We agree.
[10] Title III of the ADA prohibits discrimination on the
basis of disability in “any place of public accommodation.” 42
U.S.C. § 12182(a). Though the retail portion of the North
Harbor 7-Eleven is open to the public, the employees-only
restroom is not. In such “mixed-use” facilities, where only
14782 DORAN v. 7-ELEVEN, INC.
part of the facility is open to the public, the portion that is
closed to the public is not a place of public accommodation
and thus is not subject to Title III of the ADA. See 28 C.F.R.
Ch. 1, Pt. 36, App. B at 687-88 (2006); see also Olinger v.
U.S. Golf Ass’n, 205 F.3d 1001, 1004 (7th Cir. 2000)
(“Pursuant to Justice Department regulations implementing
Title III, to the extent that a mixed use facility is not open to
the general public, it is not subject to the requirements for
public accommodations.” (internal quotation marks omitted)),
vacated on other grounds, 532 U.S. 1064 (2001); Jankey v.
Twentieth Century Fox Film Corp., 14 F. Supp. 2d 1174,
1179 (C.D. Cal. 1998); Indep. Housing Servs. of S.F. v. Fill-
more Ctr. Assocs., 840 F. Supp. 1328, 1344 (N.D. Cal. 1993).
The district court did not err in granting summary judgment
to 7-Eleven on Doran’s claim that 7-Eleven violated the ADA
by excluding him from the employees-only restroom.
IV
Doran next argues that the district court erred in declining
supplemental jurisdiction over his California law claims after
it eliminated his ADA claims at summary judgment. Because
we have held that Doran may challenge, under the ADA, the
alleged violations identified by Doran’s expert, we vacate the
district court’s order declining supplemental jurisdiction and
remand for further proceedings.
V
In summary, we hold that the district court properly granted
summary judgment to 7-Eleven on the issues of whether the
store’s aisle width and the store’s refusal to allow him to
access the employees-only restroom violated the ADA. How-
ever, we also hold that Doran had standing to challenge the
barriers to his wheelchair access in the 7-Eleven store that he
learned about through his expert’s site inspection. Accord-
ingly, we vacate the portion of the district court’s order grant-
ing summary judgment to 7-Eleven on those claims. Because
DORAN v. 7-ELEVEN, INC. 14783
those alleged ADA violations may give rise to a justiciable
dispute between Doran and 7-Eleven, we also vacate the dis-
trict court’s order declining supplemental jurisdiction, and we
remand the case for further proceedings. Each party shall bear
its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
DUFFY, District Judge, dissenting:
I respectfully dissent.
Today the majority holds that an ADA plaintiff has stand-
ing to sue for things that did not injure him. In holding that
a plaintiff who has encountered or has specific knowledge of
one barrier at a facility may sue for any unknown barrier on
the premises related to his disability, the majority reasons that
“[i]t makes no sense to require a disabled plaintiff to chal-
lenge, in separate cases, multiple barriers in the same facility,
controlled by the same entity, all related to the plaintiff’s spe-
cific disability. We do not believe Congress would have
intended such a constricted reading of the ADA which could
render the benefits it promises largely illusory.” The majori-
ty’s approach compromises longstanding constitutional prin-
ciples for the sake of convenience, and ignores the fact that
no one—not even Congress—can preempt the Constitution
and confer standing to a party for things that have not injured
him.
A plaintiff who seeks federal jurisdiction bears the burden
of proving that he has standing to pursue his claims in federal
court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Doran has fallen short of meeting this burden. As the
Supreme Court has held, to establish standing:
14784 DORAN v. 7-ELEVEN, INC.
First, the plaintiff must have suffered an “injury in
fact”—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) “ac-
tual or imminent, not ‘conjectural’ or ‘hypotheti-
cal’ ”. Second, there must be a causal connection
between the injury and the conduct complained of—
the injury has to be “fairly . . . trace[able] to the chal-
lenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party
not before the court. Third, it must be “likely,” as
opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”
Id. at 560-561 (internal citations omitted). The elements of
standing are not mere pleading requirements, but rather must
be supported by sufficient evidence. Id. at 561.
Importantly, standing requires that “the party seeking
review be himself among the injured.” Id. at 563. To establish
that the plaintiff suffered an injury in fact, it must be “con-
crete and particularized,” which requires that “the injury must
affect the plaintiff in a personal and individual way.” Id. at
561 n.1. The result of this requirement is that the individual
plaintiff, and not some other hypothetical disabled person,
must have been injured by the alleged ADA violation. See
Lewis v. Casey, 518 U.S. 343, 358, n.6 (1996) (“[S]tanding is
not dispensed in gross.”). Taking these principles into
account, a plaintiff should not be able to get his nose in the
door of federal court with one alleged statutory violation and
then sue for countless other alleged statutory violations that
have in no way affected him.
As the majority offers a hypothetical story as a point of
illustration, it seems appropriate to do the same in order to
emphasize the far-reaching implications of the holding today.
Imagine that a mobility-impaired person decides to spend the
day at a large shopping center that contains, among other
things, restaurants, shops, a movie theater, and a health spa.
DORAN v. 7-ELEVEN, INC. 14785
He is not planning on doing anything in particular, but in the
past he has enjoyed browsing in the shops, and hopes to dine
at one of the many restaurants in the evening. He also would
like to see one of the movies playing at the theater if anything
piques his interest. Much to his chagrin, however, upon his
arrival at the shopping center he discovers that there are no
handicapped parking spots and he is therefore unable to park
his van. At this point, it is beyond question that the plaintiff
has, in fact, suffered a cognizable injury in fact pursuant to
the ADA.
Seeing the error of its ways, the shopping center quickly
rectifies the problem. However, in the meantime the plain-
tiff’s expert clandestinely examines all areas of the center, and
identifies hundreds of other ADA violations that could hypo-
thetically affect a mobility-impaired person throughout, none
of which the plaintiff encountered or had knowledge of at the
time the complaint was filed. Based on the majority’s holding,
the scope of the violations for which the plaintiff is able to sue
is arguably boundless. The plaintiff’s lawyers will argue that
they are not limited to the common areas, but are able to sue
all of the establishments in the shopping center that present
hypothetical injuries to the plaintiff. Difficult questions inevi-
tably arise: should plaintiff’s standing extend to all of the
shops he planned on patronizing, and to the movie theater
where he might have seen a movie? Does it extend to the
health spa, where he had no plans of going that day but has
a membership? What about the stores he has never been to
before, but he might have stumbled upon in the course of his
outing? Moreover, what mechanism is in place to substantiate
the claims of a plaintiff in this position regarding the estab-
lishments he intended to patronize or plans to visit in the future?6
6
The variations on this theme are endless. What is the potential scope
of injuries relating to a mobility-impaired job applicant whose wheelchair
gets caught on a mat in the lobby of a large office building, or a blind high
school student on a campus tour of a prospective college who encounters
an elevator in the main building without the required signage? May the job
14786 DORAN v. 7-ELEVEN, INC.
Standing is indispensable; it cannot be disregarded because
it is inefficient, or because to do otherwise might, as the
majority opines, not pragmatically “make sense.” See, e.g.,
Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[Standing is] the
threshold question in every federal case, determining the
power of the court to entertain the suit.”). The majority’s posi-
tion loses the forest for the trees. Generally, standing require-
ments actually enhance efficiency by concentrating limited
judicial resources on controversies as to those who have actu-
ally suffered injuries. Instead, the majority’s approach gives
ADA plaintiffs a carte blanche, an invitation to bring litiga-
tion even outside the presence of a real live case or contro-
versy. See, e.g. Martinez v. Longs Drug Stores, No. CIVS-03-
1843DFL CMK, 2005 WL 2072013 at *4 (E.D. Cal., Aug. 25,
2005) (“[t]he court’s resources are best spent resolving real
issues that have affected real people at the present time rather
than reaching out to decide matters that may not affect anyone
or that may be resolved without judicial action.”). I can think
of no other area of the law where we bestow a plaintiff with
the right to assert any potential injuries he may suffer at the
hands of the defendant at some future time. See, e.g., Lewis,
518 U.S. at 358 n.6 (“if the right to complain of one adminis-
trative deficiency automatically conferred the right to com-
plain of all administrative deficiencies, any citizen aggrieved
in one respect could bring the whole structure of state admin-
istration before the courts for review. This of course is not the
law.”).
The majority’s holding is premised on the Eighth Circuit
decision Steger v. Franco, which allows for an ADA plaintiff
applicant now sue for all unknown violations at every place of public
accommodation throughout the entire building? May the student sue the
college for violations relating to his disability that exist in all of the
school’s buildings, even ones that are located on a separate campus across
town? In my mind, any liberalization of the injury in fact requirement is
unacceptable. One can only imagine the avalanche of litigation that
today’s holding has the potential to generate.
DORAN v. 7-ELEVEN, INC. 14787
to sue for all violations pertaining to his disability regardless
of whether he encountered or knew about them. See Steger v.
Franco, 228 F.3d 889, 894 (8th Cir. 2000).7 Some of the
wording in Steger, however, is “fundamentally incompatible”
with established constitutional standing principles. See Hub-
bard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134 (S.D. Cal. 2000).
To allow a plaintiff to sue for ADA violations he neither
knew about nor encountered directly flies in the face of
Lujan’s requirement that “the injury must affect the plaintiff
in a personal and individualized way.” See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 n.1 (1992). The approach
advanced in Steger has been the subject of criticism, both by
the dissenting judge in Steger, see Steger, 228 F.3d at 894-96
(Loken, J., dissenting) as well as district courts within the
Ninth Circuit, see Hubbard v. 7-Eleven, 433 F. Supp. 2d
1134, 1142 (S.D. Cal. 2006); Harris v. Costco Wholesale
Corp., 389 F. Supp. 2d 1244, 1249 (S.D. Cal. 2005); Wilson
v. Norbreck, LLP, No. CIVS040690DFLJFM, 2005 WL
3439714, at *1 (E.D. Cal, Dec. 14, 2005); White v. Divine
Investments, Inc., No. Civ.S-04-0206FCD/DA, 2005 WL
2491543 at *3-4 (E.D. Cal. Oct. 7, 2005); Org. For Advance-
ment of Minorities v. Brick Oven Restaurant, 406 F. Supp. 2d
1120, 1126 (S.D. Cal. 2005); Martinez v. Longs Drug Stores,
No. CIVS-03-1843DFL CMK, 2005 WL 2072013 at *3-5
(E.D. Cal., Aug. 25, 2005).
The majority’s reliance on Pickern v. Holiday Quality
Foods, 293 F.3d 1133 (9th Cir. 2002) is also misplaced.
While Pickern did engage in a discussion of Steger, its refer-
ence to the Eighth Circuit’s holding was a limited one. Pick-
ern merely holds that an ADA plaintiff who has actual
knowledge of illegal barriers and has been deterred by them
may seek relief for their removal, even if he has not person-
7
Despite the liberal holding in Steger, it is worth noting that the cases
of four out of the five plaintiffs in that case were dismissed for failure to
establish standing.
14788 DORAN v. 7-ELEVEN, INC.
ally encountered them.8 Pickern did not address the issue of
whether a plaintiff who knows about or encountered one or
even several illegal barriers has standing to sue for all illegal
barriers related to his disability within that facility. I think
Appellant’s brief says it best: “[i]f Doran were arguing that he
was denied full and equal enjoyment of the store, then the dis-
trict court would be correct: an individual can hardly com-
plain about unknown discriminatory acts. To hold otherwise
would allow disabled plaintiffs to sue without having suffered
the (minimal) injury-in-fact required under the ADA, and
eviscerate the Article III constraints imposed by Congress.”
See Appellant’s Opening Brief at 28. Though I remain puz-
zled as to why plaintiff-appellant’s own brief would contain
this language, I think he hits the nail on the head.
Although one might argue that Steger has pragmatic
appeal, when it comes to abiding by the Constitution, the fact
that adherence to it might be inefficient or impractical is sim-
ply not enough to preempt its force. Time and again, the
Supreme Court has refused to allow the arguments of “piece-
meal litigation” or “convenience and efficiency” to negate the
fundamental, constitutional requirement that plaintiffs present
an actual case or controversy in order to have Article III
standing. Raines v. Byrd, 521 U.S. 811, 820 (1997) (“[i]n the
light of this overriding and time-honored concern about keep-
ing the Judiciary’s power within its proper constitutional
sphere, we 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”); Lewis v. Casey, 518
U.S. 343, 358, n.6 (1996).
It goes without saying that convenience does not, or at least
should not, play a role in our adherence to the Constitution.
8
It is of interest that the one plaintiff-appellant in Pickern apparently is
the same person who is the plaintiff-appellant here. Counsel in this case
claims to have been counsel in the Pickern case.
DORAN v. 7-ELEVEN, INC. 14789
I am reluctant to contemplate the potential far-reaching impli-
cations of the majority’s holding.
Accordingly, I dissent.