The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For generations, progressives litigants saw the Supreme Court as their salvation. Any and all unfavorable lower court decisions would be promptly appealed to the Supreme Court for correction. Even as the Court began to lean more to the right, progressive litigants felt emboldened in particular areas–especially with regard to Justice Kennedy and gay rights. But after Justice Kennedy's retirements, progressives began to think long and hard before filing cert petitions. The thinking went that it was better to leave in place an unfavorable circuit precedent than to risk setting an unfavorable nationwide precedent. This orthodoxy was so entrenched that the University of Virginia SCOTUS clinic was criticized for successfully petitioning for certiorari in Jones v. Hendrix, a prisoner case. Ultimately, the Court resolved a circuit split against the prisoner, and in the process, wiped our local circuit precedents that favored prisoners.
I think the memo has gone out that when progressive cause litigation loses in the lower court, let it be. But what about when progressives are bottom side? That is, the lower court ruled for the progressive side, and the non-progressive/conservative side is filing the certiorari petition? Of course, the progressive side can vigorously argue, as they should, in opposition to certiorari. There is always a good reason to deny cert. But what if the Court grants cert anyway? In recent years, we have seen a new strategy of SCOTUS keep-away: after certiorari is granted, the respondent takes some action to get the case off the docket.
Perhaps the most egregious example of this strategy was New York State Rifle & Pistol Association v. New York City (2020). No, not New York State Rifle & Pistol Association v. Bruen (2022), the landmark case that declared unconstitutional New York State's may issue conceal carry regime. The 2020 case involved New York City's unusual law that governed carrying firearms from one's house to a firing range. After certiorari was granted, New York City repealed the law, New York State prevented the city from re-enacting the law, and Mayor de Blasio salted the earth around City Hall to make sure the statute could never grow again. OK, I made up the last part, but you get the gist. This was a brazen effort to moot the case out, and it worked. The City was all too happy to litigate the case in the Second Circuit, but was not willing to roll the dice, and set a nationwide precedent. In dissent, Justice Alito, Thomas, and Gorsuch wrote "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced."
This type of keep-away works when the government is the respondent. (And a similar ploy may be in the works with another pending case from New York, Vitagliano v. County of Westchester). But what about when the respondent is a private party? There is a different version of keep-away: voluntarily dismiss the complaint with prejudice in the district court, and suggest to the Supreme Court that the entire case is moot. A case scheduled for oral argument in October fits this bill.
In March, the Supreme Court granted review in Acheson Hotels, LLC v. Laufer. The question presented is "Whether a self-appointed Americans with Disabilities Act 'tester' has Article III standing to challenge a place of public accommodation's failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation." Stated differently, can a disabled person click onto a website for a hotel, and sue the hotel for ADA violations, even though she never actually plans to visit the hotel? This case implicates an anomaly of Article III, Havens Realty v. Coleman (1982). Havens found that an organization can assert an Article III injury based on a "drain of the organization's resources." For example, an organization that sends a "tester" to determine if there was a violation of the law could claim the money needed to send the tester was an injury in fact. This injury seems to be self-inflicted, as that term is understood today: anyone can generate standing-on-demand by spending money to investigate the alleged illegal activity. When Acheson Hotels was granted, I suggested that Havens Realty may be yet another Burger Court precedent on the chopping block.
Now, the plaintiff in Acheson Hotels has taken actions to moot the case. The facts here are complex, and I will quote from Amy Howe's post on SCOTUSBlog:
In a 10-page filing earlier this week, lawyer Kelsi Brown Corkran of the Georgetown University Law Center asked the justices to dismiss Laufer's case as moot. Corkran cited recent disciplinary proceedings in a federal court in Maryland against Tristan Gillespie, who has filed over 600 lawsuits under the ADA on behalf of Laufer and other "testers."
A report issued on June 30 by three federal judges recommended that Gillespie be suspended from practicing before the Maryland court for six months. It noted that Gillespie had filed as many as 16 "tester" complaints in one day, each seeking $10,000 in attorneys' fees even though it was "highly improbable" that he had actually spent that much time on each lawsuit. The report found that Gillespie had violated the rules governing the conduct of lawyers "not once, or twice, but hundreds of times," and that he had "litigated his cases with his clients as an afterthought" – failing, for example, to keep his clients up to date on settlement agreements or to inform them of his decision to dismiss over 100 cases when facing the prospect of disciplinary action.
In considering factors that might weigh in favor of a lighter sanction for Gillespie, the report acknowledged that Gillespie had not acted on his own, but instead "at the direction of his boss, Thomas B. Bacon," who represented Laufer in the 1st Circuit and in opposing Supreme Court review. (Corkran's filing indicates that Bacon no longer represents Laufer in the Supreme Court.) The panel believed that Gillespie had "joined a pre-existing scheme that raises serious ethical concerns—including repeat clients, a compromised investigator, and a method for extracting unwarranted attorneys' fees from targeted hotels based on a well-worn settlement script."
Gillespie was not involved in the dispute that is currently before the Supreme Court, Corkran told the justices, while Corkran and her team only became involved in the case after the justices granted review. But Laufer nonetheless opted to voluntarily dismiss her case in the district court so that the allegations against Gillespie do not become a distraction "from the merits of her ADA clams and everything she has sought to achieve for persons with disabilities like herself." Because she has dismissed her district court case, Corkran contended, there is no longer a live controversy for the Supreme Court to decide. And because Laufer is responsible for the fact that there is no longer a case for the justices to decide, Corkran continued, the 1st Circuit's decision in her favor should not stand.
Let me put my cynic hat on for a moment. Laufer has filed hundreds of these lawsuits, as have other plaintiffs nationwide. If the Supreme Court rules that Laufer lacks standing, than favorable circuit precedents are wiped out, and this gravy train would be derailed. But if the case is dismissed, at most, the judgment in Laufer's case is vacated, but the underlying First Circuit precedent remains, as do other circuit precedents. The disability rights advocates would gladly sacrifice a single case against a small hotel in order to preserve this nationwide settlement program. Think my language is harsh? Read Acheson's response:
"[P]ostcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye." Knox v. SEIU, 567 U.S. 298, 307 (2012). That is especially true here, where Laufer's litigation program was recently revealed to have been an unethical extortionate scheme, and the unapologetic purpose of Laufer's effort to moot this case is to ensure that she or similar plaintiffs can continue pursuing similar schemes.. . . .
Laufer is abandoning her case to pave the way for Laufer and similar plaintiffs to resume their campaign of extortionate ADA suits against unwitting small businesses without the hindrance of an adverse ruling from this Court. The Court should not reward Laufer's effort to insulate lower-court rulings upholding "tester" standing from Supreme Court review.
Acheson also explains that dismissing the case as moot would set a risky precedent that blesses post-certiorari maneuvering.
But even if the hotel wants to stand on principle and litigate the case, it would be pointless. Why? Because the hotel will know that if it takes the case up to the First Circuit or this Court and is on the verge of victory, the plaintiff will abandon her case to avoid an adverse ruling. And the hotel will have no recourse; this Court's decision in this case will set the precedent that it is perfectly fine for the plaintiff to abandon her case at the last minute to avoid an adverse ruling.
The Court should see through this practice, and keep the case. Of course, there will be howls (like with 303 Creative) that the Court decided a "fake" case that was already moot. But I think that argument cuts the other way. Laufer, and other testers like her, routinely bring "fake" cases to extract settlements: demand $10,000 from a small business to make the case go away. These cases are "fake" precisely because there is no Article III standing. And the only way for the Court to halt this practice is to say that there was no subject matter jurisdiction from the moment the case was filed–and that inquiry would come before any decision about mootness. If the Court approves this stratagem, it risks future litigants simply dismissing district court complaints whenever certiorari is granted.