In the United States Court of Appeals for the Ninth Circuit ______

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Case No. 12-17144 ______

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______

FRANCIE MOELLER, KATHERINE CORBETT, EDWARD MUEGGE, AND CRAIG YATES, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

Plaintiffs - Appellants

TACO BELL CORPORATION,

Defendant – Appellee, ______

Appeal from the United States District Court for the Northern District of California, Oakland Division The Honorable Judge Phyllis J. Hamilton, United States District Judge Civil Action No. C 02-5849 PJH ______

BRIEF OF AMICI CURIAE DISABILITY RIGHTS LEGAL CENTER, NATIONAL DISABILITY RIGHTS NETWORK, DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, COLORADO CROSS-DISABILITY COALITION, DISABILITY RIGHTS MONTANA, DISABILITY RIGHTS CALIFORNIA, THE NATIONAL FEDERATION OF THE BLIND, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS AND LEGAL AID SOCIETY – EMPLOYMENT LAW CLINIC ______

MICHELLE UZETA, ESQ. DISABILITY RIGHTS LEGAL CENTER 800 SOUTH FIGUEROA STREET, SUITE 1120 LOS ANGELES, CA 90017 213.736.1496 -- TEL 213.736.1428 -- FAX

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STATEMENT OF INTERESTS OF AMICI CURIAE Amici Curiae are organizations that represent and advocate for the rights and interests of people with disabilities. Amici have an interest in this case because the availability of timely injunctive relief is essential to their ability to ensure the promise of equal access and opportunity for individuals with disabilities through meritorious enforcement actions brought under Title III of the Americans with Disabilities Act. Each amicus and its specific interests are described in the accompanying motion of Amici Curiae for leave to file the present brief in support of Appellant’s petition for rehearing and rehearing en banc. This brief is submitted with the consent of Appellants’ counsel pursuant to Fed. R. App. P. 29(a); Appellee’s counsel has withheld consent. DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici state that they are private 501(c)(3) non-profit organizations, that they are not publicly held corporations or other publicly held entities, and that they have no parent corporations. No publicly held corporation or other publicly held entity owns ten percent (10%) or more of any Amicus organization. STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(C)(5) The undersigned certifies that no party’s counsel authored this brief in whole or in part, and that no party, party’s counsel or any other person other than amici curiae, their members, or their counsel, contributed money that was intended to fund preparing or submitting this brief.

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TABLE OF CONTENTS

INTRODUCTION ...... 1 ARGUMENT ...... 2 I. Title III’s Injunctive Relief Remedy is Mandatory and Essential to the Purposes of the ADA ...... 2 a. The Purpose of the ADA is to Remove Barriers Through Enforceable Standards ...... 2 b. The Injunctive Relief Remedy of Title III is Mandatory ...... 5 II. The District Court Judge’s Failure to Timely Order Injunctive Relief Will Chill the Private Enforcement upon Which the ADA so Heavily Relies ...... 6 a. Businesses do not Comply Voluntarily with the ADA; Mandatory Injunctive Relief for Established Violations is Essential ...... 6 b. Limiting the Availability of Injunctive Relief Will Chill Enforcement ...... 8 CONCLUSION ...... 11

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TABLE OF AUTHORITIES CASES

Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 237, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) ...... 5 Buckhannon Board and Care Home, Inc. v. West Va. Dep’t of Health and Human Resources, 532 U.S. 598 (2001) ...... 10 Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, at 948 n.5 (9th Cir. 2011) (en banc) ...... 7 Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984) ...... 5 D'Lil v. Best W Encina Lodge & Suites, 538 F.3d 1031,1040 (9th Cir. 2008) ...... 10 Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir. 2008) ...... 9, 11 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ...... 10 Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831 (N.D. Cal. 2011) ...... 1, 7 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007) ...... 10 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) ...... 4 Oliver v. Ralphs Grocery Company, 654 F.3d 903 (9th Cir. 2011) ...... 10 Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1082-83 (D. Haw. 2000) ...... 11 Trafficante v. Metro. Life Ins. Co., 409 U.S. 205,209 (1972) ...... 9

FEDERAL STATUTES

42 U.S.C. § 12101(a)(5)-(6) ...... 3 42 U.S.C. § 12101(a)(1)-(3)...... 3 42 U.S.C. § 12101(a)(2) ...... 2 42 U.S.C. § 12101(a)(4) ...... 3 42 U.S.C. § 12101(b)(1)-(2) ...... 3, 10 42 U.S.C. § 12182(a) ...... 4 42 U.S.C. § 12182(b)(2)(A)(iv) ...... 4 42 U.S.C. § 12188(a) ...... 4, 5, 9, 10

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42 U.S.C. § 12188(a)(1) ...... 4 42 U.S.C. § 12188(a)(2) ...... 5 42 U.S.C. §2000a-3(a) ...... 4

FEDERAL REGULATIONS

28 C.F.R. pt. 36, app. A (1991) ...... 7 56 Fed. Reg. 35544, 35602 (28 C.F.R. § 36.406(a) ...... 7

OTHER AUTHORITIES

Carri Becker, Private Enforcement of the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable?, 17 HASTINGS WOMEN'S L.J. 93, 99 (2006) ...... 9 Hill, Courtney Abbott, Enabling the ADA: Why Monetary Damages Should Be A Remedy Under Title III of the Americans with Disabilities Act, 59 Syracuse L. Rev. 101, 108 (2008) ...... 4 Implementation of the ADA: Challenges, Best Practices and New Opportunities for Success”, National Council on Disability (2007) ...... 11 Jeb Barnes & Thomas F. Burke, The Diffusion of Rights: From Law on the Books to Organizational Rights Practices, 40 LAW & SOC'Y REV. 493, 499-500 (2006) ...... 9 Michael Ashley Stein, The Law and Economics of Disability Accommodations, 53 DUKE L.J. 79, 124–27 (2003)...... 6 Michael Waterstone, “The Untold Story of the Rest of the Americans with Disabilities Act,” 58 VAND. L. REV. 1807, 1854 (2005) ...... 11 National Organization on Disability, The ADA, 20 Years Later: Kessler Foundation/NOD Survey of Americans with Disabilities, at 121 (2010), www.2010DisabilitySurveys.org/pdfs/surveyresults.pdf...... 3 Ruth Colker, THE DISABILITY PENDULUM: THE FIRST DECADE OF THE AMERICANS WITH DISABILITIES ACT (NYU Press 2005) ...... 11 Ruth Colker, The Disability Pendulum: The First Decade of the Americans with Disabilities Act 166, 170 (2005) (citing 135 Cong. Rec. 19,803 (1989) ...... 5 Samuel R. Bagenstos, Subordination, Stigma, and “Disability,” 86 VA. L. REV. 397, 423–24, 438–42. (2000) ...... 7 Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA. Litigation, 54 UCLA L. REV. 1 (2006) (internal citations omitted) ...... 9

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Waterstone, A New Vision of Public Enforcement, 92 MINN. L. REV. 434, 450-451 (2007) ...... 9

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INTRODUCTION The ADA is unique amongst federal antidiscrimination statutes in that it provides a means to restructure the physical environment of places of public accommodation – that is, mandatory injunctive relief. This statutory remedy is the backbone of Title III of the ADA, and the driving force behind private enforcement. On October 5, 2011 -- following almost nine years of litigation, a partial summary judgment in Plaintiffs’ favor on 400 elements in 160 stores, and a single-

store exemplar trial -- Judge Phyllis J. Hamilton of the United States District Court for the Northern District of California, Oakland Division issued Findings of Fact and Conclusions of Law (“FFCL”), holding in Plaintiffs’ favor on every factual and legal question at trial and concluding that “the court finds that plaintiffs have established that classwide injunctive relief is warranted, with regard to maintaining compliance, both as to Taco Bell 4518, and as to all corporate Taco Bell restaurants in California.” Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831 (N.D. Cal. 2011). Inexplicitly, however, and despite Plaintiffs’ demonstration of widespread ADA violations, an order of injunctive relief was not issued. Almost a year later, on September 17, 2012, Judge Hamilton reversed her finding that classwide relief was warranted, amending her FFCL to delete the above-cited holding on the grounds that it was “premature,” and adding instead that “[t]he court will determine the form of injunctive relief, if any, to be issued, following the conclusion of the other trials to be held in this case.” ECF 691. Dates for these “other trials” have yet to be set by Judge Hamilton, who estimates “that this litigation could span yet another decade.” ECF 690 at 2. Judge Hamilton’s indefinite delay in issuing an order of injunctive relief as mandated by the ADA in response to proven violations of Title III, is essentially a denial of injunctive relief. This denial, if left to stand, will have disastrous results

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for Plaintiffs, who have waited years for relief for the discrimination they have experienced. Taco Bell has stated on the record that it is in the process of franchising out all of its California restaurants, so by the time any future injunction is secured, it will argue that the court is powerless to reach countless stores in violation of federal law. ECF 681-1 at 7 (“Throughout the decade-long progress of this case, Taco Bell has continued to sell company-owned stores to various franchises, thus moving them outside of the potential scope of any injunction in this case. . . . Ultimately, Taco Bell plans to reduce the number of corporate-owned stores in California to 41 by the beginning of 2013.”) By unnecessarily delaying injunctive relief in the instant case, despite multiple, systemic accessibility violations having been proven, the district court’s orders run afoul of the express language and underlying purpose of the ADA, and set a precedent that will chill the private enforcement upon which the ADA so heavily relies. Amici therefore support Appellants’ request that the district court’s September 17, 2012 orders be reversed and remanded with instructions to enter an injunction. ARGUMENT I. Title III’s Injunctive Relief Remedy is Mandatory and Essential to the Purposes of the ADA. a. The Purpose of the ADA is to Remove Barriers Through Enforceable Standards. Congress enacted the ADA in 1990 upon finding, among other things, that “society has tended to isolate and segregate individuals with disabilities” and that such forms of discrimination continue to be a “serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). The Congressional findings also state that "unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced

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discrimination on the basis of disability have often had no legal recourse to redress such discrimination." 42 U.S.C. § 12101(a)(4). At the time the ADA was passed, Congress found that approximately forty-three million Americans had one or more disabilities, and that discrimination against individuals with disabilities continued in many critical areas such as employment, public accommodations, voting, and access to public services. 42 U.S.C. § 12101(a)(1)-(3). 1 This discrimination, exemplified in exclusion, segregation, physical and communication barriers, and relegation to lesser services, was found to have placed individuals with disabilities at a disadvantage and inferior status in society. 42 U.S.C. § 12101(a)(5)-(6). In response to these findings, Congress explicitly stated that the purpose of the ADA is to provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1)-(2)(emphasis added). Thus, Congress’ intent was not only to codify the rights of people with disabilities, but also to generate inclusion and end discrimination as a result of strong enforcement of the statute. H.R. REP. No. 10 1-485, pt. 2, at 40 (1990) (“the rights guaranteed by the ADA are meaningless without effective enforcement provisions.”) Under Title III of the ADA, which prohibits discrimination by owners and operators of places of public accommodation2, an aggrieved party is entitled to an

1 Relevant to the instant matter, The Kessler Foundation and National Organization on Disability recently found that people with disabilities spend less time socializing and going to restaurants than do people without disabilities, suggesting that “significant barriers [including physical obstacles] still exist that prevent people with disabilities from going outside the home.” National Organization on Disability, The ADA, 20 Years Later: Kessler Foundation/NOD Survey of Americans with Disabilities, at 121 (2010), www.2010DisabilitySurveys.org/pdfs/surveyresults.pdf. 2 Title III’s general rule is that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services,

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order of injunctive relief – including barrier removal and policy modification - upon showing violation of the Title’s accessibility provisions. 42 U.S.C. § 12188(a). Unlike the other two major titles of the ADA, individuals have no private damage remedy for Title III violations3, making injunctive relief the only effective mechanism for redressing violations of the statute. The injunctive relief provision of Title III of the ADA was the result of months of thoughtful deliberation by Congress. Discussions about an enforcement scheme for Title III centered on whether Title III’s enforcement provisions should mirror those contained in the Fair Housing Act (allowing for compensatory and punitive damages), or Title II of the Civil Rights Act of 1964 (“CRA”) (providing for only injunctive relief).4 Assured by the CRA’s effectiveness in lessening racial discrimination, the enforcement mechanism of the CRA was eventually adopted for Title III,5 as was the CRA’s broad definition of the term public

facilities, privileges, advantages, or accommodations of any place of public accommodation by a person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). A place of public accommodation must make reasonable modifications in its policies, practices, and procedures, unless that entity can demonstrate that doing so would fundamentally alter the nature of its goods, services, or facilities. Id. § 12182(b)(2)(A)(ii). Older facilities must remove architectural barriers if it is “readily achievable” to do so (42 U.S.C. § 12182(b)(2)(A)(iv)), while facilities or alterations that post-date the ADA must be designed to be readily accessible to individuals with disabilities to the “maximum extent possible.” Id. § 12183(a)(2). 3 42 U.S.C. § 12188(a)(limiting remedies to injunctive relief). 4 Hill, Courtney Abbott, Enabling the ADA: Why Monetary Damages Should Be A Remedy Under Title III of the Americans with Disabilities Act, 59 Syracuse L. Rev. 101, 108 (2008). 5 42 U.S.C. §12188(a)(1) (providing that the remedies available to individuals shall be those set forth in 42 U.S.C. §2000a-3(a) [the Civil Rights Act of 1964], which allows only injunctive relief for violations of Title II of the Civil Rights Act.); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (Title II allows injunctive relief only).

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accommodation.6 As ultimately passed, Title III reflects the Congressional commitment to carefully crafted, privately enforceable non-discrimination standards, comparable to the legislative commitment reflected in other major federal civil rights laws. b. The Injunctive Relief Remedy of Title III is Mandatory The plain language of 42 U.S.C. § 12188(a)(2) dictates that violations of Title III are subject to mandatory injunctive relief.7 “Injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter [and w]here appropriate, injunctive relief shall also include . . . modification of a policy . . .” 42 U.S.C. § 12188(a)(2) (emphasis added)). There are no exceptions for substantial compliance. Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001). The 9th Circuit has held it to be an abuse of discretion for a court to refuse to order injunctive relief for violations of Title III in light of the statute’s clear directive. See Moreno v. La Curacao, 463 Fed. Appx. 669, 670 (9th Cir. 2011)(district court erred in denying plaintiff’s request for a mandatory injunction, including an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities), and Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010) (“[c]onsidering all the circumstances, including particularly the statutory violations we have found and the fact that an

6 Ruth Colker, The Disability Pendulum: The First Decade of the Americans with Disabilities Act 166, 170 (2005) (citing 135 Cong. Rec. 19,803 (1989)). See 42 USC § 12181(7) 7 Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984)(”If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress ...”). Rules of statutory construction lead to a similar result. In resolving the question of statutory interpretation, courts must first look to the express language of the statute itself. Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 237, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990).

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injunction is the only relief available to a private party under the Act, it would be an abuse of discretion for the district court now to deny injunctive relief.”)(emphasis added). As success in the ADA context is measured in the ability to effectuate change, the success of a class action such as the instant case is credited to its ability to spread an equitable remedy across an entire, and often expansive, class. This is inherent in the nature of a class action—the ability to reach a large group of injured, or potentially injured, parties. As discussed infra, most businesses are not proactive enough to alter their establishments to make them accessible. Such a change generally requires a court order for injunctive relief. If/when a judge fails to acknowledge the mandatory nature of Title III’s injunctive relief remedy and/or fails to timely order such relief in a class action lawsuit, as here, it results in a hollow victory. Absent a requirement that the court order the violations fixed, successful litigation, and the ADA itself, become meaningless. II. The District Court Judge's Failure to Timely Order Injunctive Relief Will Chill the Private Enforcement upon Which the ADA so Heavily Relies. a. Businesses do not Comply Voluntarily with the ADA; Mandatory Injunctive Relief for Established Violations is Essential Compliance with the ADA’s physical accessibility standards requires business owners to take proactive steps and, often, to incur costs. Unfortunately, the threat of injunctive relief is generally not going to be sufficient to guarantee voluntary compliance. Business owners may erroneously assume that barrier removal is more expensive than it is, or may underestimate the amount of new patronage that would result from making their businesses accessible.8

8 For a discussion of the lack of information about the costs and benefits of accommodation, see Michael Ashley Stein, The Law and Economics of Disability Accommodations, 53 DUKE L.J. 79, 124–27 (2003).

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Additionally, the owner’s assessment of the costs and benefits of accessibility may be skewed by prejudice against or stereotyping of people with disabilities, even if the prejudice or stereotyping is unconscious.9 Enforcement that is guaranteed to result in timely injunctive relief is therefore essential to realize the equal access goals contemplated by the ADA. The history of the instant case demonstrates this point perfectly. Defendant Taco Bell Corp. (“TBC”) has had notice for over twenty years concerning the precise conditions that constitute barriers in violation of the ADA and the risk of injunctive relief upon a showing of non-compliance10, yet has failed to voluntarily comply with such standards. It is undisputed that TBC has violated, and continues to violate the accessibility standards of Title III in a significant and meaningful way. See ER 378, Moeller v. Taco Bell Corp., 2007 WL 2301778 (N.D. Cal. Aug. 8, 2007) (Court order establishing almost 400 violations among more than 160 covered restaurants); see also ER 110, Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 868 (N.D. Cal. 2011)(summarizing violations established by 2007 summary judgment order). Numerous attempts, over the course of many years, by TBC to voluntarily remedy its systemic violations and moot out Plaintiffs’ claims have failed. ER 97-101; ER 327-28; ER 329-30; ER 336; ER 352-54. As of 2009, over 2,400 access violations still existed at the stores subject to this litigation. Dkt. Nos.

9 See Samuel R. Bagenstos, Subordination, Stigma, and “Disability,” 86 VA. L. REV. 397, 423–24, 438–42. (2000). 10 The Department of Justice adopted the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) as the standard for new construction and alterations on July 26, 1991. 56 Fed. Reg. 35544, 35602 (28 C.F.R. § 36.406(a)). The ADAAG provide detailed, inch-by-inch, standards with which building owners and operators are required to comply. See generally 28 C.F.R. pt. 36, app. A (1991). As this Court has recognized, “[t]hose responsible for new construction are on notice that if they comply with the ADAAG’s objectively measurable requirements, they will be free from suit by a person who has a particular disability related to that requirement.” Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, at 948 n.5 (9th Cir. 2011) (en banc).

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484-484-1. These violations are likely to reoccur, given TBC’s admission that elements in its restaurants “change frequently” (ER 354), and given TBC’s inability to achieve compliance despite ongoing litigation. Accordingly, the district court’s October 5, 2011 Findings of Fact and Conclusions of Law holding that -- based on the evidence admitted at the exemplar trial as well as the multiple violations established by the 2007 Summary Judgment Order -- “plaintiffs have established that classwide injunctive relief is warranted, with regard to maintaining compliance, both as to [the exemplar restaurant], and as to all corporate Taco Bell restaurants in California” (ER 111), should have prompted an immediate order of injunctive relief. Instead, the Court’s September 17, 2012 Order deferred consideration of injunctive relief for up to a decade. ER 1, 3. This will have disastrous – and foreseeable – consequences in the instant case. TBC has been open about the fact that it is currently engaged in a vigorous effort to sell all of the restaurants covered by this action, asserting to the district court that it will have sold more than 80% of these restaurants by the beginning of 2013. ER 56. Once it has sold all such restaurants, it intends to argue that injunctive relief is thus moot. Id. If it succeeds in that argument, the Plaintiff Class will not be able to appeal the September 17, 2012 orders, and will suffer irreparable harm -- the injunctive relief to which it has been, and is now entitled will no longer be available. Such an outcome circumvents the enforcement provisions of Title III and runs afoul of the remedial purpose of the ADA. It also sets a precedent for other defendants who may be inclined to manipulate pleadings and the courts’ schedules to postpone and avoid making required modifications to ensure the accessibility of their facilities for as long as possible in the hopes that plaintiffs might give up their fight, after years of enduring the emotional and physical tolls of litigation. Conversely, an order for appropriate and immediate injunctive relief will have lasting effect. Such relief

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would carry over to any successor-in-interest and bind each Taco Bell franchise, thus ensuring a remedy for the violations that Plaintiffs have proven. b. Limiting the Availability of Injunctive Relief Will Chill Enforcement Congress chose to make private enforcement "the primary method of obtaining compliance with the [ADA]." Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir. 2008)(quoting 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). Yet, long after the enactment of the ADA, violations of the statute’s public accommodations title remain, by all accounts, widespread. It is estimated that ninety-eight percent of buildings are not compliant with the ADA.11 Testimony from advocates across the country affirms that many if not most businesses remain inaccessible, even in circumstances where it would be easy to remove barriers.12 Government cannot be counted on to fill the gap. If the ADA does indeed regulate "more than 600,000 businesses, 5 million places of public accommodation, and 80,000 units of state and local government"13, the Department of Justice clearly does not have the resources to take on each and every accessibility violation.14

11 Carri Becker, Private Enforcement of the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable?, 17 HASTINGS WOMEN'S L.J. 93, 99 (2006). 12 Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA. Litigation, 54 UCLA L. REV. 1 (2006) (internal citations omitted). 13 Jeb Barnes & Thomas F. Burke, The Diffusion of Rights: From Law on the Books to Organizational Rights Practices, 40 LAW & SOC'Y REV. 493, 499-500 (2006) 14 The dearth of enforcement actions by the Department of Justice is believed to be the result of a lack of staff, see Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation, 54 UCLA L. REV. 1,9 (2006), lack of resources, see Waterstone, A New Vision of Public Enforcement, 92 MINN. L. REV. 434, 450-451 (2007), and the fact that the

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Thus, actions brought by defenders of civil rights serve a crucial function in enforcement and "advanc[e] the time when public accommodations will be compliant with the ADA." D'Lil v. Best W Encina Lodge & Suites, 538 F.3d 1031,1040 (9th Cir. 2008) (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007)). Despite Congressional intent to facilitate private enforcement and to create “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities”15, ADA access cases against privately owned places of accommodations under Title III are becoming inherently more risky and difficult for the private bar to bring. In addition to the aforementioned lack of damage remedy16, there is a 2011 Ninth Circuit decision that imposes higher pleading standards on ADA plaintiffs challenging architectural barriers17 and a risk related to the ability to recover attorneys’ fees.18 Moreover, standing is difficult to establish. A plaintiff must meet the continuing violation doctrine, meaning that she must show that there is a risk of the harm happening to her again.19 A plaintiff's standing is also tied to her disability, meaning that a wheelchair user suing a restaurant can only obtain an injunction with respect to the barriers affecting her political environment at any one time often dictates the amount of effort the Department invests in civil rights enforcement, see id. at 436. 15 42 U.S.C. § 12101(b)(1)-(2). 16 42 U.S.C. § 12188(a) (2000) (“The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter.”). The cited section only includes prospective injunctive relief. Id. § 2000a-3(a) 17 Oliver v. Ralphs Grocery Company, 654 F.3d 903 (9th Cir. 2011). 18 Buckhannon Board and Care Home, Inc. v. West Va. Dep’t of Health and Human Resources, 532 U.S. 598 (2001) 19 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)(“[T]he plaintiff must have suffered an ‘injury in fact’--an invasion of a legal protected interest which is (a) concrete and particularized; and (b) ‘actual or imminent’, not ‘conjectural’ or ‘hypothetical.”’).

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specific disability, and cannot – for example – seek relief for individuals with vision impairments.20 As a result of all these risks and hurdles, Title III of the ADA is fast becoming a chronically under-enforced statute.21 As litigation is extensive and costly, most private plaintiffs are not willing to stick-out the litigation process with mere hope for a favorable ruling.22 If the courts are permitted to further reduce or weaken the strong incentives that do exist – like the promise of mandatory injunctive relief upon establishment of violations of Title III – the result will inevitably be less private enforcement of the ADA. CONCLUSION For all the reasons stated above, Amici respectfully request that this Court reverse the district court’s September 17, 2012 orders and remand this matter with instructions to enter an immediate injunction.

DATED: November 5, 2012 DISABILITY RIGHTS LEGAL CENTER

_____s/______By: Michelle Uzeta Attorneys for Amici Curiae

20 Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1044 n. 7 (9th Cir.2008) (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 challenge all barriers in that public accommodation that are related to his or her specific disability.). See also Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1082-83 (D. Haw. 2000) (denying plaintiff’s standing to sue for barriers that do not affect plaintiff’s specific disability). 21 See, e.g., Michael Waterstone, “The Untold Story of the Rest of the Americans with Disabilities Act,” 58 VAND. L. REV. 1807, 1854 (2005) (arguing that “[c]ombined with survey data and other social science research showing that people with disabilities are still at the margins of society in areas covered by Titles II and III, these low numbers demonstrate under-enforcement of these Titles ... [and] demonstrated noncompliance.”); Ruth Colker, THE DISABILITY PENDULUM: THE FIRST DECADE OF THE AMERICANS WITH DISABILITIES ACT (NYU Press 2005) at 188. 22 “Implementation of the ADA: Challenges, Best Practices and New Opportunities for Success”, National Council on Disability (2007).

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CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies, pursuant to Fed. R. App. P. 32 (a)(7)(c) and Ninth Circuit Rule 32-1, the attached brief is proportionately spaced, has a typeface of 14-point and contains 3,764 words. This brief complies with the typeface requirements of Fed. R. App. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word, in Times New Roman.

DATED: November 5, 2012 DISABILITY RIGHTS LEGAL CENTER

______s/______By: Michelle Uzeta Attorneys for Amici Curiae

Case: 12-17144 11/05/2012 ID: 8388127 DktEntry: 25-2 Page: 19 of 19

9th Circuit Case Number(s) 12-17144

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********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . 11/05/2012 I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) s/ Michelle Uzeta

********************************************************************************* CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) .

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)