Doran v. 7-Eleven Inc ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY DORAN,  No. 05-56439
Plaintiff-Appellant,
D.C. No.
v.
 CV-04-01125-JVS
7-ELEVEN, INC., d/b/a 7-ELEVEN;
ORDER AND
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 May 2, 2008
Before: Jerome Farris and Ronald M. Gould, Circuit Judges,
and Kevin Thomas Duffy,* District Judge.
Opinion by Judge Gould
Dissent by Judge Duffy
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
4805
4808 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. 4809
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.
ORDER
The Petition for Panel Rehearing is GRANTED. The opin-
ion, and related dissent, in the above-captioned matter filed on
November 9, 2007, and published at 506 F.3d 1191, are
WITHDRAWN. The superseding opinion and dissent shall be
filed concurrently with this order.
The parties shall have fourteen (14) days from entry of the
superseding opinion to file petitions for rehearing or petitions
for rehearing en banc in the above-captioned matter.
OPINION
GOULD, Circuit Judge:
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 inspections, 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
4810 DORAN v. 7-ELEVEN, INC.
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
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 store1
1
Doran’s expert visited the store on two separate occasions, first on June
20, 2005, before the magistrate judge issued his order limiting the scope
of discovery, and again on July 28, 2005. The access barriers identified
during the expert’s June 20 visit were documented in a site inspection
report dated June 21, 2005. During the July 28 visit, which occurred after
7-Eleven had made some renovations to the store and also after the court-
imposed deadline for exchanging expert reports had passed, Doran’s
expert observed other alleged ADA violations at the store, which he out-
lined in a declaration filed on August 1.
DORAN v. 7-ELEVEN, INC. 4811
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 condiment
counter required too long of a reach, and the accessible park-
ing spaces were too sloped.
The district court granted summary judgment to 7-Eleven
on all of Doran’s ADA claims.2 The court held that Doran did
not have standing to challenge those barriers identified in the
expert’s report and subsequent declaration that Doran had not
encountered and about which he had no personal knowledge
before the expert conducted his inspections. 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
(2) excluding disabled patrons from the store’s employees-
2
In its order granting 7-Eleven’s motion for summary judgment, the dis-
trict court also ruled on 7-Eleven’s motion to strike the June 21 report and
August 1 declaration of Doran’s expert because they were based on “unau-
thorized” site inspections, one of which was made after the deadline for
exchanging expert reports. The district court “decline[d] to strike all of
[the expert’s] declaration and report[,]” because “[t]o the extent that [the
expert] merely inspected those barriers that Doran encountered or knew
about as a result of his visits to the store, . . . 7-Eleven was not harmed
by these visits . . .” The court further reasoned that “because 7-Eleven did
not complete its program of correcting architectural barriers in the store
until July 21, 2005 . . . the . . . second [July 28] visit to the store was nec-
essary to gather information regarding these remediations.” However, the
court did strike those portions of the expert report and declaration relating
to barriers that Doran had not himself encountered and about which he did
not testify that he had personal knowledge, on the theory that Doran did
not have standing to challenge those barriers and that reporting on them
exceeded the scope of the magistrate judge’s discovery order.
4812 DORAN v. 7-ELEVEN, INC.
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.3
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.
3
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).
In reviewing a grant of summary judgment, we view all evidence in the
light most favorable to Doran, the non-moving party. See Summers v. A.
Teichert & Son, 127 F.3d 1150, 1152 (9th Cir. 1997). 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).
DORAN v. 7-ELEVEN, INC. 4813
Second, there must be a causal connection between
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.
4814 DORAN v. 7-ELEVEN, INC.
As to Lujan’s requirement that an injury be concrete and
particularized, we held “that in stating that he is currently
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 in his amended complaint
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 on at least four occasions from
patronizing 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.”).
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 visiting the
DORAN v. 7-ELEVEN, INC. 4815
store because of its accessibility barriers, that the store is con-
veniently located near his favorite fast food restaurant in Ana-
heim, and that he plans to visit Anaheim at least once a year
on his annual trips to Disneyland. Although Doran did visit
the North Harbor 7-Eleven once after filing suit, he noted that
the access barriers of which he had previously complained
were still present on that occasion and stated in his deposition
that these barriers caused him “a lot of frustration.” When
asked in his deposition whether he had any plans to return to
the store, Doran answered, “Yes, once it’s fixed.” This depo-
sition testimony demonstrates both Doran’s continued deter-
rence from patronizing the store4 and his intention to return in
the future once the barriers to his full and equal enjoyment of
the goods and services offered there have been removed.
[1] Allegations that a plaintiff has visited a public accom-
modation on a prior occasion and is currently deterred from
visiting that accommodation by accessibility barriers establish
that a plaintiff’s injury is actual or imminent. Pickern, 293
F.3d at 1138; Molski v. Arby’s Huntington Beach, 359 F.
Supp. 2d 938, 947 (C.D. Cal. 2005) (holding that a plaintiff
4
Pickern did not limit its discussion of deterrence to those situations
where a disabled person is prevented from attempting to enter a place of
public accommodation altogether. Rather, we held in Pickern that “once
a plaintiff has . . . become aware of discriminatory conditions existing at
a public accommodation, and is thereby deterred from visiting or patroniz-
ing that accommodation, the plaintiff has suffered an injury.” 293 F.3d at
1136-37. We interpret this holding to mean that if a plaintiff can show
either that he was deterred from visiting the accommodation on specific
past occasions when he otherwise would have visited it because of the
known barriers there, or that he was deterred from patronizing certain
areas of the accommodation or engaging in specific activities there
because of those barriers, he has established an injury in fact sufficient for
purposes of Article III standing under Pickern. This view of deterrence is
consistent with the language of the ADA itself, which outlaws discrimina-
tion based on disability “in the full and equal enjoyment of the goods, ser-
vices, [and] facilities” made available at places of public accommodation,
see 42 U.S.C. § 12182(a), and does not limit its antidiscrimination man-
date to barriers that completely prohibit access.
4816 DORAN v. 7-ELEVEN, INC.
suffered actual and imminent injury when he alleged (1) that
he visited an accommodation in the past; (2) that he was cur-
rently deterred from returning to the accommodation because
of ADA violations; and (3) that he would return if the ADA
violations were remedied); Parr, 96 F. Supp. 2d at 1079 (not-
ing 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). Notwithstanding 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 district court affirma-
tively held, and we conclude correctly, that Doran personally
encountered or had personal knowledge of nine barriers to
accessing the North Harbor 7-Eleven store in his wheelchair.
We concluded above that Doran’s encounters with and knowl-
edge 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 court-
DORAN v. 7-ELEVEN, INC. 4817
house door and brings his Article III case forward for our
judicial evaluation.5
[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.
1
As we discussed in part A above, Doran encountered sev-
eral barriers to accessing the North Harbor 7-Eleven in his
wheelchair, and he alleged that these barriers deterred him
from visiting the store on approximately four occasions. This
deterrent effect in turn may well have prevented Doran from
discovering what other access barriers existed within the store
that he had not encountered on his previous visits. In other
words, it is entirely plausible that the reason he did not know
the full scope of 7-Eleven’s ADA violations when he filed his
complaint is that the violations he did know about deterred
him from conducting further first-hand investigation of the
5
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.
4818 DORAN v. 7-ELEVEN, INC.
store’s accessibility. As a general matter, where deterrence
itself has been identified 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 deterrence, the inability to personally dis-
cover 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, how-
ever, is the crux of 7-Eleven’s position.
[4] However, it is not an essential prerequisite of an ADA
plaintiff’s standing that he prove that deterrence caused by
previously encountered violations was the reason that a partic-
ular violation was not discovered and hence alleged in his
complaint. Such an individualized causal showing is not
required because it is ultimately misleading to conceptualize
each separate architectural barrier inhibiting a disabled per-
son’s access to a public accommodation as a separate injury
that must satisfy the requirements of Article III. Doran suf-
fered “discrimination” within the meaning of Title III of the
ADA, as well as a legally cognizable injury for purposes of
Article III standing,6 the first time that he encountered archi-
tectural barriers at the North Harbor 7-Eleven. The relevant
section of the ADA provides that “discriminat[ion] . . . on the
6
The district court also concluded that Doran had standing on this
ground, holding in its order on the parties’ cross-motions for summary
judgment that Doran had standing to challenge the alleged ADA violations
that he had either encountered or about which he had actual knowledge.
In reaching this conclusion, the district court stated that Doran need not
establish that he had been deterred from returning to the store by the barri-
ers he encountered, because, unlike in Pickern v. Holiday Quality Foods
Inc., Doran “did visit the store and personally encountered . . . barriers . . .
during the limitations period [which is a] sufficient [injury] for Article III
standing.” However, because the district court ultimately concluded that
all of the barriers that Doran had standing to challenge—those he had
encountered or knew about personally—had either been remedied or did
not constitute ADA violations, that court granted 7-Eleven’s motion for
summary judgment despite this decision favorable to Doran on the issue
of standing.
DORAN v. 7-ELEVEN, INC. 4819
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 interfered with his access as a wheelchair user, as
evidenced by the site inspections 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
perchance encountered or learned about before being deterred
is exhaustive or whether other, potentially dangerous obsta-
cles 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 uncer-
tainty is itself an actual, concrete and particularized injury
under the deterrence framework of standing articulated in
Pickern, for when a disabled individual knows that a facility
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] Given that an ADA plaintiff has standing because of
deterrence from returning in the face of uncertainty, it is pru-
dent to eliminate that uncertainty through the judicial device
of discovery, thus allowing the plaintiff to obtain by formal
means the information about the scope of the defendant’s vio-
lations that he may have been unable to safely ascertain him-
self because of those same violations. This course is
4820 DORAN v. 7-ELEVEN, INC.
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 alleged statutory violation of which he or she has knowl-
edge and which deters access to, or full use and enjoyment of,
a place of public accommodation, he or she may conduct dis-
covery 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 violation of the
ADA, which failure actually harmed the disabled person by
deterring that disabled person from visiting a facility that oth-
erwise would have been visited at a definite future time,
yielding Article III standing. See Pickern, 293 F.3d at 1138.
We further note that our holding today is fully consistent
with the Supreme Court’s Article III standing discourse. In
Sierra Club v. Morton, 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 bar-
DORAN v. 7-ELEVEN, INC. 4821
riers that impede a wheelchair user’s access to and full enjoy-
ment of the North Harbor 7-Eleven store.7 The Supreme Court
has repeatedly instructed that “ ‘the gist of the question of
standing’ is whether [the plaintiff has] ‘such a personal stake
in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination.’ ” Massa-
chusetts v. EPA, 127 S. Ct. 1438, 1453 (2007) (quoting Baker
v. Carr, 369 U.S. 186, 204 (1962)). Even if a disabled plain-
tiff did not know about certain barriers when the plaintiff first
filed suit, that plaintiff will have a “personal stake in the out-
come of the controversy” so long as his or her suit is limited
to barriers related to that person’s particular disability. See id.
2
[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
7
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. See Steger v. Franco, Inc., 228 F.3d 889, 893
(8th Cir. 2000).
4822 DORAN v. 7-ELEVEN, INC.
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
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.
DORAN v. 7-ELEVEN, INC. 4823
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 deterred
from entry to or full use of that facility and so was unable to
determine what other barriers might also obstruct his access.
Prudential limits on standing, by contrast, ensure that we do
not “decide abstract questions of wide public significance
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.
. . .”).
4824 DORAN v. 7-ELEVEN, INC.
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:
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.
DORAN v. 7-ELEVEN, INC. 4825
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 discover8 the internal stairs and the
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
8
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.
4826 DORAN v. 7-ELEVEN, INC.
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.9
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
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 lead 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 barrier,
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 pub-
lic accommodation may, in one suit, permissibly challenge all
barriers in that public accommodation that are related to his
or her specific disability. Steger, 228 F.3d at 894.
[8] We hold that Doran has standing to sue for injunctive
relief for all barriers in the North Harbor 7-Eleven store
9
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. 4827
related to his specific disability, including those identified in
his expert’s site inspections. 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
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 in width 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 wide.
4828 DORAN v. 7-ELEVEN, INC.
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
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).
DORAN v. 7-ELEVEN, INC. 4829
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 Doran 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 inspections. Accord-
ingly, we vacate the portion of the district court’s order grant-
ing summary judgment to 7-Eleven on those claims. Because
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.10 Each party shall
bear its own costs on appeal.
10
On remand, the parties are free to offer evidence of whether the
alleged barriers first noted by Doran’s expert constitute ADA violations,
and whether those barriers are still present in the North Harbor 7-Eleven
store, as these evidentiary issues were never reached by the district court
because of its conclusion on the scope of Doran’s standing. 7-Eleven is
also free on remand to renew its objections based on the unauthorized
nature of the site inspections made by Doran’s expert and the untimeliness
4830 DORAN v. 7-ELEVEN, INC.
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.
of the second inspection conducted after the deadline for exchanging
expert reports had passed. Although these evidentiary objections were pre-
viously raised by 7-Eleven, the district court did not squarely address them
because its ruling on 7-Eleven’s motion to strike Doran’s expert testimony
was also premised on the scope of Doran’s standing. If, on remand, the
district court concludes that 7-Eleven was prejudiced by the late disclosure
of the alleged barriers first identified by Doran’s expert and on this basis
decides to exclude, in whole or in part, the evidence of those barriers, we
would review such a ruling for abuse of discretion. See Pickern v. Pier 1
Imports (U.S.), Inc., 457 F.3d 963, 969 n.5 (9th Cir. 2006) (holding that
it was not an abuse of discretion for the district court to exclude an expert
report filed after the deadline set forth in the scheduling order where the
plaintiff clearly anticipated the need for that report).
DORAN v. 7-ELEVEN, INC. 4831
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:
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.
4832 DORAN v. 7-ELEVEN, INC.
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.
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
DORAN v. 7-ELEVEN, INC. 4833
the claims of a plaintiff in this position regarding the estab-
lishments he intended to patronize or plans to visit in the future?1
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-
1
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
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.
4834 DORAN v. 7-ELEVEN, INC.
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
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).2 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
2
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.
DORAN v. 7-ELEVEN, INC. 4835
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-
ally encountered them.3 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
3
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.
4836 DORAN v. 7-ELEVEN, INC.
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.
I am reluctant to contemplate the potential far-reaching impli-
cations of the majority’s holding.
Accordingly, I dissent.