George Washington famously could not tell a lie – or so the story goes. Not all of us are so honest, and so in matters of litigation we have a method for deciding what is true – a trial. In Langer v. Kiser, 57 F.4th 1085 (9th Cir. 2023) the majority decided that the truth was less important than advancing a policy goal – accessibility for the disabled. I’m sure they wouldn’t agree with that characterization, but it follows naturally from an analysis of the majority opinion and its disregard of the truth-finding purpose of a trial.(4)
The first sign that the Court’s concern is policy rather than the truth is its decision to take up the issue of the plaintiff’s standing in the first place.¹ The trial court, while expressing doubt about the plaintiff’s standing to seek injunctive relief, ultimately found that the plaintiff did have standing and entered judgment for the defendants on grounds unrelated to standing. The Ninth Circuit reversed based on those grounds. It also agreed that the plaintiff had standing. Its entire discussion of standing was, therefore, irrelevant to its holding; it was exactly the kind of advisory opinion that federal courts are not supposed to give. This is what the Ninth Circuit had to say in a different case where it did not want to give an advisory opinion:
Lanza v. Ashcroft, 389 F.3d 917, 929 (9th Cir. 2004). In Langer v Kiser, the bulk of the Court’s opinion is devoted to doing exactly what the Court is not supposed to do; that is, revising the opinion of the District Court instead of merely reversing a wrong judgment.
The next clue that the opinion is driven by the result rather than the law is the emphasis on public policy. Quoting its earlier opinion in D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008) the Court writes:
We commented that it may be “necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.
The Court then repeats its reference to a law review article from 2006 as support for the notion that public policy, rather than legal principles, should determine the outcome of ADA lawsuits. Just like the nervous twitch that tells you a gambler is bluffing, citing an old law review article and invoking public policy is a sure sign the Court is about to ignore the truth to get where it wants to go.
A results driven opinion will also contain misrepresentations of earlier authorities, and Langer v. Kiser is no exception. The Court’s argument concerning the effect filing thousands of lawsuits should have on the factual determination of whether a tester is likely to return to the defendant facility begins with the claim that under earlier Ninth Circuit decisions:
we know that so-called “professional plaintiffs,” “paid testers,” or “serial litigants” can have tester standing to sue for Title III violations because a plaintiff’s motive for going to a place of public accommodation is irrelevant to standing.(5)
Can this be true; that is, is motive really “irrelevant” to standing? The case cited for this proposition, Civ. Rights Educ. and Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1102 (9th Cir. 2017) doesn’t say this. Instead it says: “a plaintiff’s status as a tester does not deprive her of the right to sue for injunctive relief under § 12182(a).” Now this makes sense – being a “tester” does not necessarily mean the plaintiff will not return to the defendant facility. Thus, motive does not exclude the possibility of future injury. But saying that motive does not exclude the possibility of future injury is not the same thing as saying motive is irrelevant. Indeed, a sincere motive to advance the policy objectives of the ADA would support a finding that the plaintiff does intend to return because only by returning can the plaintiff confirm the property has been fixed. However, by the same toke if the plaintiff’s only motive to make money and there is no money to be gained from returning to the facility, it becomes unlikely the plaintiff really intends to return. Motive may not be determinative, but it is certainly relevant.
After the astonishing claim that evidence of motive is not relevant the Court turns to an earlier decision in which it did exactly what it has done in Langer v Kiser; give an advisory opinion. In D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1039 (9th Cir. 2008) the Court considered a trial court decision that did not attack the credibility of the plaintiff, but instead ruled based on a lack of evidence. The Ninth Circuit recognized that:
The district court explicitly declined to decide the credibility issue, relying instead on the ground that D’Lil did not introduce evidence of her intent to return in December 2002 to find that she lacked standing.
Nonetheless,in D’Lil the Court plunged ahead with its examination of the credibility of the plaintiff’s intent to return. It rejected a credibility determination that was not the basis of the holding because “the district court focused on D’Lil’s history of ADA litigation as a basis for questioning the sincerity of her intent to return to the Best Western Encina.”
With the illegitimate advisory opinion in D’Lil as its foundation, the opinion in Langer v. Kiser takes the next logical step; it denies the trial court the right to make any credibility determination that might interfere with use of serial litigation as an ADA policy tool. This begins with its holding that:
. . . merely driving around, documenting ADA noncompliance, and filing multiple lawsuits is not in and of itself a basis for being found noncredible.
This is a step back from “irrelevant.” Facts related to a case generally come in three flavors: Evidence may be sufficient; that is, the truth of the fact is sufficient to determine some element of the case like intent to return. It may only be relevant; that is, the truth of the fact has a bearing on the critical element but has to be supported by other facts. Finally, it can be irrelevant; that is, the truth of the fact makes no difference at all. Saying that a fact is not in and of itself a basis for a finding is merely saying it is not sufficient; it can still be relevant.
This holding – that a particular kind of evidence is not sufficient – isn’t that remarkable in the context of a motion to dismiss or summary judgment where presumptions must be made in favor of the plaintiff. If a plaintiff who has filed 2000 lawsuits says in his complaint that he intends to return that claim has to be taken as true for purposes of a motion to dismiss. If he says the same thing under oath in response to a motion for summary judgment the trial court is not allowed to question his truthfulness. But everything changes at trial. At trial it is the job of the judge or jury to decide if the plaintiff is telling the truth based not only on what he says, but also on the way he says it. Because only those present at the trial can see and hear the tone of voice of the witness the Ninth Circuit has long held that a “reviewing court must respect the exclusive province of the fact finder to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts.” United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir.1996). At trial evidence of litigation history that might not be sufficient by itself is never really by itself, for it is supported (or contradicted) by the testimony of the plaintiff, including the way he testifies.
But in Langer v Kiser the Ninth Circuit is not just saying that litigation history is not sufficient or even that it is merely relevant; it is saying that litigation history cannot be considered at all. After giving some some absurd examples of how litigation history might cast standing into doubt it announces a rule that strips the judge of the right to determine the credibility of a plaintiff with respect to intent to return.
Nor can district courts use improper adverse credibility determinations to circumvent our holding in CREEC allowing tester standing for ADA plaintiffs.
What does the majority mean by an “improper credibility determination” that might “circumvent hour holding in CREEC allowing tester standing?” It certainly can’t be any single credibility determination. Determining at trial that a particular plaintiff is lying about intent to return doesn’t undermine the principle of tester standing; it is a single decision about a single plaintiff with respect to a single lawsuit. A different plaintiff might persuade a trial judge that he really did intend to return. In fact, the same plaintiff might persuade a different judge that he really did intend to return. A trial that turns on whether the plaintiff is telling the truth is a one off that doesn’t undermine the possibility of “tester standing” in any other case.
If a single credibility determination cannot undermine the concept of “tester standing” what would make it so improper that it would require reversal on appeal? Nothing more or less than reaching the wrong result by finding the plaintiff does not intend to return and therefore does not have standing to sue for injunctive relief:
[W]e accord standing to individuals who sue defendants that fail to provide access to the disabled in public accommodation as required by the Americans with Disabilities Act[ ], even if we suspect that such plaintiffs are hunting for violations just to file lawsuits.
[quoting Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1069 (9th Cir. 2009)]. There it is. The truth doesn’t matter. All that matters is that serial litigants be allowed to sue as often as they want because it supposedly advances the cause of disability access.
This brings us back to the “tells” in the opinion. Before deciding that every serial ADA plaintiff is prima facie telling the truth about intent to return the Ninth Circuit takes a long look at all the facts before the trial court, including the plaintiff’s testimony:
On redirect, Langer affirmed that he would “absolutely” return to the Lobster Shop if they were to “fix the parking and have van-accessible parking” because he loves lobster and “purchase[s] lobster all the time.”
Any lawyer or judge with trial experience has seen a witness whose demeanor alone made it clear they are lying. I had this experience myself when, as a young lawyer, I put my carefully prepared witness on the stand and realized even as I was asking easy questions to make our case that I and everyone else in the courtroom could tell he was lying. The two judges in the majority in Langer v. Kiser were not in the courtroom. They did not see Langer testify. They don’t know if he was calm and collected or sweating, nervous and looking desperately to his lawyers for clues about how to answer the questions. Their review of the evidence at trial – none of which they saw first hand – shows clearly that they are simply substituting their opinion about the evidence for that of the trial judge because his judgment might (on remand) get in the way of victory for the plaintiff.
Of course the judges who wrote the opinion in Kaiser v Langer might claim that all they are doing is saying a judge cannot consider litigation history as evidence of intent to return, leaving open the consideration of other evidence. That doesn’t really change this analysis because the purpose of a trial is to determine the truth, not to reach a pre-determined outcome desired by the Court of Appeals. Evidence should be excluded because it might get in the way of discovering the truth, not because it might reveal the truth. Only a fool would believe that the filing of 2000 ADA lawsuits does not reflect something about the likely intent of the plaintiff to return to each and every one of those 2000 businesses. The judges in the majority are not fools; they just don’t want the truth to interfere with their view of ADA public policy goals.
It is possible Kaiser v. Langer will be reversed en banc³ or taken to the Supreme Court, where reversal seems a near certainty. For the present, however, the truth about intent to return is irrelevant in the Ninth Circuit and lawyer driven industrial ADA litigation will no doubt guarantee that the Ninth Circuit continues to lead the nation in ADA lawsuits and settlements that make lawyers rich and do nothing of real value for the disabled.² And that will suit the these judges just fine because they are not interested in the truth; they only care that every ADA lawsuit reach the “right” result; that is, the plaintiff wins.
¹ For those who don’t think standing day in and day out the basics are not complicated. In any action in federal court based on a violation of federal law the plaintiff must have standing to sue, meaning they must have suffered an injury that (a) is intended to be redressed by the statute and (b) meets the minimum requirements of Article III of the Constitution. In ADA lawsuits the plaintiff must also have standing to seek injunctive relief, because that is the only relief available. That means it must be likely the plaintiff will benefit from the injunction sought. The injunction sought is typically an order to make the defendant business accessible, and for that to benefit the plaintiff he must intend to go back. If he never goes back then the accessibility doesn’t matter to him and the injunction does him no good.
² I have observed before that despite the tens of thousands of ADA lawsuits filed in California and elsewhere the number of filings continues to increase, proof that serial litigation is not accomplishing the goals of the ADA.
³ We have not yet reached the deadline for filing the necessary request.
4 The case was decided over the dissent of Circuit Judge Collins, who examines in more detail than I have space for the errors of the majority without reaching the conclusions concerning the Ninth Circuit’s commitment to public policy over the truth that I have reached.
(5) It bears remembering that there is no such thing as “tester standing.” Being a tester does not confer standing; it simply does not exclude the possibility of standing. Any court that treats “tester standing” as a concept has already taken a long wrong step in the consideration of standing.