Although the Supreme Court already has heard a number of significant arguments, this term has not yet seen any major substantive opinions. This is not to say that there isn’t a lot going on at, or on the way to, the Court.

Indeed, with national division being so profound as the 2024 election cycle is underway, it is not unlikely that the Court will opine on important reproductive rights cases generated in the wake of the Dobbs decision, on whether the defeated ex-president can be barred from state ballots under Section 3 of the 14th Amendment, and, in light of filings made just today, on whether the former president is entitled to immunity as to the matters under investigation by the Special Counsel.

Those cases will affect all of us greatly, as they do some of us more immediately.

Although the case I’m about to discuss is vastly less consequential, it deals with a question that many of the readers of this blog face in advising clients on workplace legal matters. That is the case of Acheson Hotels, LLC v. Laufer, heard on December 11, and it concerns individual standing.

Deborah Laufer, a resident of Florida who must use a wheelchair, sued the Acheson Hotel chain in 2020, based on her claim that a facility that the company operated in Maine failed to satisfy a regulation under the Americans with Disabilities Act (ADA) that requires disclosure on its booking page of whether the hotel offered rooms that are accessible to disabled persons.

Ms. Laufer had no intention of booking a room at the inn. Instead, she is a disability “tester” who has made an occupation of suing hotels under the ADA, and not unsuccessfully.

As Justice Barrett noted in a brief opinion dismissing the case as moot: “Laufer has singlehandedly generated a circuit split. The Second, Fifth, and Tenth Circuits have held that she lacks standing; the First, Fourth, and Eleventh Circuits have held that she has it.”

Well, in this case, the Supreme Court didn’t resolve the split – and that is the point of this note. As the underlying case progressed, various unsavory matters that came to light with respect to Ms. Laufer’s counsel led her voluntarily to dismiss her lawsuit with prejudice. She then filed a suggestion of mootness with the Supreme Court.

Under Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U. S. 422, 431 (2007), the Court could have exercised authority to resolve the standing issue, and many civil rights groups, arguing that “tester” lawsuits are critical to the enforcement of the ADA, urged the Court to do so. Accepting the notion that “mootness is easy and standing is hard,” the Court took the “easy” way and refrained from resolving a difficult question. Thus, a unanimous Court vacated the judgment of the First Circuit, also remanding the case to that court with instructions to dismiss the case as moot. Although Justice Jackson disagreed with the vacatur instruction, the rest of the Justices followed the vacatur procedure described in United States v. Munsingwear, Inc., 340 U. S. 36 (1950), and reiterated many times since.

At the end, at least of this day, the broad circuit split occasioned by Ms. Laufer survives the demise of the Acheson Hotels case. It seems inevitable, however, that the Supreme Court will be receptive to a future petition directed at resolving the question of whether disability testers have standing to act as plaintiffs in ADA lawsuits. Some of our readers may be seeing the issue already in pending U.S. District Court cases, and they should be aware of its likely consequences as to future appellate review.

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