The Americans with Disabilities Act has a loophole: unless the government is filing the lawsuit, a litigant cannot sue a private entity for damages, only injunctive relief. The problem is that, to obtain an injunction, you have to show that you will be subjected to the ADA violation again. That is harder than it sounds. What if you have no intention of returning to the scene of your humiliation?
The case is Pincus v. National Railroad Transportation Corp, a summary order decided on October 28. Pincus took an Amtrak train from Florida, to New York. She sues over "Amtrak’s failure to have a wheelchair and attendant waiting for her despite her prior notification of the need for these provisions; supplying her with a wheelchair that was too small; and leaving her unattended in a wheelchair she could not operate." The Court of Appeals (Cabranes, Straub and Livingston) notes that "The injunctive relief sought would require Amtrak to provide wheelchairs and wheelchair assistance to passengers who have mobility-related disabilities."
The district court dismissed the case under Rule 12, holding that the Complaint does not show that she intended to use Amtrak again. Without that intent to use this service, plaintiff cannot seek an injunction. The Court of Appeals reinstates the case."Pincus’s professed intent to use Amtrak again is sufficient to establish standing. The second amended class action complaint alleges that Pincus 'desires to utilize Amtrak rail stations not only to avail herself of the goods and services available at the rail stations,' but also in the capacity of a tester 'to assure herself that Amtrak is in compliance with the Rehabilitation Act so that she and others similarly situated will have full and equal enjoyment of the property without fear of discrimination.' The complaint further alleges that Amtrak’s 'discriminatory practices also prevent Pincus from returning to the property to enjoy the goods and services available to the public.'"
As "deterrence [is] a cognizable injury on a disability claim," the Court says. Disability plaintifffs “'need not attempt to overcome an obvious barrier,' so long as she pleads sufficient facts to 'create a reasonable inference that [s]he would frequent the [public accommodation] were the violation remedied.'”