(CN) - The full 9th Circuit court ruled Friday to vacate and replace a decision over disability discrimination claims Pier 1 Imports faced from a California man who uses a wheelchair, concluding still to dismiss the suit.
Byron Chapman, who needs assistance to walk, said he could not get around a Pier 1 store in Vacaville, Calif., where architectural features throughout the property act as barriers to his wheelchair.
Chapman's expert identified 30 violations of the Americans with Disabilities Act and California Building Code, but Chapman did not personally encounter each of the barriers. Chapman also testified that he was never personally deterred from returning to the store because of the violations.
A federal judge dismissed Chapman's claims over several barriers, which the court had determined were not in violation of ADA or had already been remedied by the retailer.
Pier 1 appealed, arguing that Chapman did not have standing to sue over barriers he never encountered in the store and did not deter his shopping experiences.
A three-judge panel for the court agreed with Pier 1 in 2009, but that decision was vacated after the court's judges voted to rehear the appeal en banc. In Friday's decision, the court refined its conclusion but still voted that Chapman's ADA complaint should be dismissed for lack of jurisdiction on remand.
"Chapman has failed to allege and prove the required elements of Article III standing to support his claim for injunctive relief under the ADA," Judge Kim Wardlaw wrote for the panel of 11 judges. "Specifically, he has not alleged or proven that he personally suffered discrimination as defined by the ADA as to encountered barriers on account of his disability."
Disabled persons have standing to sue under ADA if they encounter a barrier that does not completely preclude the plaintiff from entering or from using a facility in any way, the ruling states. But Chapman failed to demonstrate the necessary likelihood that he would be harmed again in a similar way.
"Chapman leaves the federal court to guess which, if any, of the alleged violations deprived him of the same full and equal access that a person who is not wheelchair bound would enjoy when shopping at Pier One," Wardlaw wrote. "Nor does he identify how any of the alleged violations threatens to deprive him of full and equal access due to his disability if he were to return to the store, or how any of them deter him from visiting the store due to his disability. Although Chapman may establish standing as to unencountered barriers related to his disability, the list of barriers incorporated into his complaint does nothing more than 'perform a wholesale audit of the defendant's premises.'"
In a concurring opinion, Judge N. Randy Smith wrote that he supported the majority's conclusion but that the analysis gives to much berth for ADA standing.
"The majority's statement that a simple encounter with a barrier is sufficient to confer standing collapses the injury in fact element of standing with the causation element," Smith wrote, in an opinion joined by Judge Johnnie Rawlinson. "If the injury in fact element is an encounter with an ADA noncompliant barrier and the causation element is 'noncompliance with [the ADA],' then, in reality, these two elements are now one and the majority has expanded standing under the ADA to render the three part test illusory."
The minority opinion states that the majority would impermissibly allow plaintiffs to sue on behalf of others, rather than themselves, since they can sue over encounters with barriers that do not actually deprive access to the plaintiff.