Whether a 'tester' has Article III standing under Title 3 of the Americans with Disabilities Act

QUESTIONS PRESENTED On March 27, 2023, this Court granted the petition for writ of certiorari to the Court of Appeals for the First Circuit in the case, Acheson Hotels, LLC v. Deborah Laufer, 22-429 addressed to the question of whether a “tester” has Article III standing under Title 3 of the Americans with Disabilities Act. On December 5, 2023, in the wake of a series of improbable events, this Court vacated its order after the basis for the case disappeared. And with it went the opportunity for this Court to address a critical question at the center of a major Circuit split. Until now. This case, originating within the Ninth Circuit, presents, in unambiguous terms, the question of whether a “tester” has Article III standing to sue a place of public accommodation without a future intention to patronize that accommodation — the very question raised by Acheson. The Ninth Circuit has created a special class of litigants — testers — that (1) does not require an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent; (2) does not require an injury that will be redressed by a favorable decision; and (3) does not require any interest in the goods or services offered. The questions presented are: 1. Can the Ninth Circuit’s creation of a special class of testers pursuing claims based on hypothetical interests survive scrutiny in the face of separation of ii powers predicated on Article III section 2 clause 1 of the United States Constitution? 2. Is the Ninth Circuit’s creation of a special class of unlicensed building inspectors pursuing hypothetical claims: A. repugnant to this Court’s decision in TransUnion LLC v. Ramirez, ___ U.S. __, 141 S.Ct. 2190 (2021) that requires a personal stake — a concrete injury — and not simply the existence of legal infractions? B. repugnant to this Court’s decision in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) that requires proof of standing in a particular case? C. repugnant to this Court’s decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) that requires a concrete and particularized invasion of a legally protected interest? D. incompatible with the purpose of the ADA that is to secure to all persons with disabilities equal access to a public accommodations where the plaintiff has no interest in patronizing the public accommodation but only in “testing” the business for ADA compliance? 3. Is the Ninth Circuit’s determination that knowledge of past conditions is sufficient to irrefutably establish standing repugnant to this Court’s decision in City of Los Angeles v. Lyons, 461 U.S. 95 (1983) that past injury without more is not sufficient to establish standing to seek prospective injunctive relief?