United States Court of Appeals
For the First Circuit
Nos. 18-1618; 18-1684
MARIA SUÁREZ-TORRES and
NORBETO MEDINA-RODRIGUEZ,
Plaintiffs, Appellants,
v.
PANADERIA Y RESPOSTERIA ESPAÑA, INC., d/b/a PANADERIA ESPAÑA
and IMMOBILIARIA ISLA VERDE, INC.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Barron, Lipez, and Dyk,
Circuit Judges.
Jose Carlos Velez Colon for appellants, with whom Law Offices
of Velez-Colon was on brief.
José Enrico Valenzuela-Alvarado for appellees, with whom
Valenzuela-Alvarado, LLC was on brief.
February 17, 2021
Of the Federal Circuit, sitting by designation.
LIPEZ, Circuit Judge. This appeal arises from a lawsuit
brought by appellants Maria Suárez-Torres and Norberto Medina-
Rodriguez against appellees Panaderia y Reposteria España, Inc.,
a bakery in Carolina, Puerto Rico, and Inmobiliaria Isla Verde,
Inc. (collectively, "Panaderia España")1 under the Americans with
Disabilities Act of 1990 ("ADA")2 and the Puerto Rico Civil Rights
Act.3 Suárez-Torres and Medina-Rodriguez appeal the district
court's post-judgment denial of their motion for attorney's fees
and motion to reopen. After careful review, we affirm.
I.
Suárez-Torres and Medina-Rodriguez are described in the
complaint as "testers" who visit local places of public
accommodation in Puerto Rico primarily to assess and challenge
violations of the ADA. Suárez-Torres and Medina-Rodriguez allege
that they each visited Panaderia España on separate occasions --
Medina-Rodriguez in early 2015 and Suárez-Torres in early 2016 --
and encountered barriers to their equal access and full enjoyment
of appellees' facilities, services, goods, and amenities. In April
The parties do not explain in their briefing the
1
relationship between Panaderia y Reposteria España, Inc. and
Inmobiliaria Isla Verde, Inc., and the record provides no insight.
We therefore treat the defendants as a single entity (Panaderia
España), as the parties have done throughout these proceedings.
2 42 U.S.C. §§ 12101-12213.
3 P.R. Laws Ann. tit. 1, § 13.
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2016, Suárez-Torres and Medina-Rodriguez filed suit against
Panaderia España, alleging that the bakery had violated the ADA by
failing to remedy architectural barriers -- specifically,
inadequate accessible parking, lack of accessible seating and
service counters, and structural deficiencies in the accessible
restroom -- and by maintaining a discriminatory policy of keeping
the accessible restroom, but not other restrooms, locked, which
forced disabled individuals to ask for a key to use the restroom.
Shortly thereafter, Suárez-Torres and Medina-Rodriguez sent a
letter to Panaderia España requesting that all ADA violations be
remedied and demanding a settlement of $4,500.
In January 2017, an expert retained by Suárez-Torres and
Medina-Rodriguez conducted an inspection of the bakery and drafted
a report, which was provided to Panaderia España. At a status
conference shortly after the inspection, the district court
granted Panaderia España's request to retain its own expert to
conduct a site inspection within 30 days. The court also set a
deadline for the parties to file simultaneous motions for summary
judgment.
In April 2017, Panaderia España filed a motion for
summary judgment, challenging appellants' standing as testers and
arguing that appellants failed to show an injury-in-fact because
they did not prove they actually visited the bakery. It also
argued that appellants' claims were moot because the bakery had
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renovated its premises to comply with ADA standards. In a sworn
statement, the owner of the bakery attested to the renovations,
stated that he had hired an expert to inspect whether the
renovations brought the property into compliance with the ADA, and
explained that the expert found additional "situations" involving
ADA noncompliance that would "be fully corrected soon." Suárez-
Torres and Medina-Rodriguez filed an opposition to Panaderia
España's motion for summary judgment, but it was stricken as
untimely and noncompliant with the federal rules.
The district court denied Panaderia España's summary
judgment motion in an order dated January 23, 2018. The court
first rejected Panaderia España's argument that Suárez-Torres and
Medina-Rodriguez lacked standing because of their status as
testers. The court concluded that "'tester' motive does not defeat
standing," and may even make it more likely that plaintiffs would
return to the bakery, even if only to ensure ADA compliance. The
court also declined to afford any weight to Panaderia España's
contention that plaintiffs were lying about whether they visited
the bakery.
Then, turning to Panaderia España's claim that the
business was renovated to comply with ADA standards and that any
remaining violations would be "fully corrected soon," the court
explained that,
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the motion for summary judgment fails to set
forth evidence of the completion of these
changes or adjustments to the design of the
locale, which would thereby make the
plaintiffs' ADA claims moot at this stage.
Because defendants do not purport to have
addressed the alleged ADA violations, the
motion for summary judgment is DENIED WITHOUT
PREJUDICE. Defendants are hereby ordered to
submit evidence of the completion of the
changes to the design of the business
establishment that would make it fully
compliant with all applicable standards and
guidelines under [the] ADA.
The district court convened a status conference two days
later. The minute entry for that conference reads, in its
entirety:
[Counsel for] defendants informed [the court]
that completion of the changes to be made at
Panaderia y Reposteria España to comply with
[the] ADA shall be completed within 90 days.
Hence, the defendants were granted the request
[for 90 days to make the identified changes]
and shall file a motion by not later than April
27, 2018 and shall submit the pertinent
documents in compliance as to the changes made
at the establishment under [the] ADA. No
objection by counsel for plaintiffs.
Less than two weeks after that status conference -- well
before the ninety-day deadline for Panaderia España to complete
and submit evidence of the outstanding architectural renovations
-- Suárez-Torres and Medina-Rodriguez filed a motion to dismiss
their claims brought under the Puerto Rico Civil Rights Act and
for final judgment on their ADA claims "on account that [they]
obtained the requested relief under federal law and [we]re fully
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satisfied with the result of th[e] civil action." Appellants
specifically noted that judgment in their favor was appropriate
because Panaderia España had agreed to complete the "required
changes or adjustments to the design of the locale" within 90 days.
In an electronic docket order, the district court
"noted" plaintiffs' motion for judgment, indicated that it would
"dismiss[] [the] state law claims with prejudice and ADA claims
without prejudice," and stated that the plaintiffs "may file a
motion to reopen [the] case if the defendants fail to comply with
the deadlines established in the most recent status conference."
The court entered a judgment of dismissal in accordance with that
docket order the same day.
Suárez-Torres and Medina-Rodriguez then moved for
attorney's fees. They argued that they were "prevailing parties"
under the ADA's fee-shifting provision, 42 U.S.C. § 12205, because
Panaderia España admitted noncompliance with the ADA and the
district court had ordered it to submit evidence of compliance.
Panaderia España opposed, arguing that plaintiffs failed to
litigate the case and their attorney's ethically suspect conduct
precluded a fee award.
The district court denied the motion, remarking that it
"certainly did not address the merits of the plaintiffs' ADA claim"
and "did not place itself in a position to enforce the terms of
any settlement agreement or to compel the defendant to make any
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alterations to its place of business." To the contrary, the court
explained, it had merely "noted the plaintiffs' satisfaction with
the defendants' voluntary modifications to the building,"
proceeded to enter judgment "as requested," and notified
plaintiffs of their ability to request that the case be reopened
if the agreed-upon changes were not completed in a timely manner.
Panaderia España secured an extension of time to submit
evidence of the completed alterations. Two weeks after the new
deadline, it filed a "Motion in Compliance with Order" accompanied
by an expert report. The report detailed the many architectural
changes that Panaderia España had made and concluded that the
premises were,
in compliance with the [ADA] as they relate to
persons with disabilities parking at
designated accessible spaces, entering the
facilities, and being able to reach and make
use of the accessible sales and service
counter, tables and restroom.
In response, Suárez-Torres and Medina-Rodriguez moved to
reopen the case. They argued that the expert report showed that
Panaderia España was still violating the ADA because: (1) a newly
designed accessible parking space encroached on a pedestrian
walkway, (2) certain pipes in the accessible restroom were not
properly insulated or covered, and (3) Panaderia España continued
to maintain its discriminatory policy of locking the accessible
restroom.
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The district court denied the motion to reopen in a brief
electronic docket order:
[The motion to reopen] stems from Panaderia
[España's] motion in compliance (Docket No.
93) that it has addressed any and all alleged
and supposed structural and design
deficiencies raised in the ADA complaint in
regards to the establishment's parking, access
aisles, tables, service counters and
restrooms. Therefore, the court finds that
the new and different allegations from those
in the claim are not the subject or object of
this suit. Accordingly, the court denies the
plaintiffs' motion to reopen the case.
Suárez-Torres and Medina-Rodriguez timely appealed both the
district court's order denying their request for attorney's fees
and its order denying their motion to reopen.
II.
A. Standing
Panaderia España argues that appellants are not entitled
to collect fees because they lacked standing to pursue their ADA
claims in the first instance. Specifically, Panaderia España
contends that appellants never visited the bakery themselves and,
even if they did, they were not injured because the only purpose
of their visit was to test ADA compliance. Panaderia España raised
those same arguments as grounds for summary judgment below but the
district court disagreed, holding that Panaderia España offered
"no extraneous evidence to support the[] contention that the court
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should doubt the sincerity of plaintiffs' averment," and that
appellants' tester status did not defeat standing.
Panaderia España never challenged the district court's
determination that appellants had standing. Instead, the case
settled shortly after summary judgment was denied and, thereafter,
the court entered a judgment of dismissal. Panaderia España now
seeks to raise lack of standing as an alternative ground for
affirmance of the district court's post-judgment rulings on
appellants' motions for attorney's fees and to reopen. Arguably,
principles of collateral estoppel might preclude Panaderia España
from relitigating the district court's standing determination on
summary judgment. See Burlington Northern R.R. v. Hyundai Merchant
Marine Co., 63 F.3d 1227, 1233 n.8 (3d Cir. 1995) (explaining that
denial of summary judgment can sometimes support collateral
estoppel); but see Kay R Elect. Corp. v. Stone & Webster
Constructions Co., 23 F.3d 55, 59 (2d Cir. 1994) (concluding that
the denial of a motion for summary judgment is not a final judgment
supporting issue preclusion). Moreover, whether appellants had
standing to bring their ADA claims in the first instance may be
irrelevant to their ability to seek attorney's fees. See D.A.
Osguthorpe Fam. P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1236 (10th
Cir. 2013) (explaining that "a district court may still award
attorney's fees after dismissing the underlying action for lack of
subject-matter jurisdiction. . . . because a claim for attorney's
- 9 -
fees gives rise to issues separate and distinct from the merits of
the original cause of action" (internal citation omitted)).
On the other hand, Panaderia España's argument challenges
the existence of an injury-in-fact, a constitutional standing
requirement that implicates our subject-matter jurisdiction and,
hence, we may be obliged to consider it. Merrimon v. Unum Life
Ins. Co. of Am., 758 F.3d 46, 51-52 (1st Cir. 2014) ("The presence
or absence of constitutional standing implicates a federal court's
subject-matter jurisdiction. . . . [A] federal court is obliged to
resolve that issue even if the parties have neither briefed nor
argued it."). We need not resolve whether Panaderia España's
standing challenge is procedurally proper, however, because we
conclude that it fails in any event.
The three familiar requirements of standing are:
(1) injury in fact, (2) a causal connection between the injury and
the defendant's alleged misconduct, and (3) that the injury would
have been redressed by a favorable outcome. Lujan v. Defs. Of
Wildlife, 504 U.S. 555, 560-61 (1992). Panaderia España challenges
only the first prong, alleging that appellants fabricated their
visits to the bakery and cannot establish an injury because they
are testers.4
4 Panaderia España does not challenge the other requirements
of an injury-in-fact under the ADA: whether appellants (1) are
disabled within the meaning of the ADA, (2) encountered barriers
at the property in violation of the ADA, and (3) were deterred
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The burden of proof to establish standing is consistent
with "the manner and degree of evidence required at the successive
stages of the litigation." Id. at 561. Where, as here, the case
progresses to the summary judgment stage, the moving party --
Panaderia España -- must initially support its challenge to
standing "by citing to particular parts of materials in the record
. . . or showing that the materials cited do not establish . . . a
genuine dispute [of material fact]." Fed. R. Civ. P. 56(c)(1).
The nonmoving party -- Suárez-Torres and Medina-Rodriguez -- must
then counter with specific facts supported by affidavits or other
affirmative evidence. See Libertad v. Welch, 53 F.3d 428, 436
(1st Cir. 1995); see also Day v. Bond, 500 F.3d 1127, 1132 (10th
Cir. 2007) ("To prevail at summary judgment on standing grounds,
the defendant must show that the record is devoid of evidence
raising a genuine issue of material fact that would support the
plaintiff's ultimate burden of proving standing. . . . 'In response
to a summary judgment motion,' the plaintiff cannot 'rest on "mere
allegations," but must "set forth" by affidavit or other evidence
from patronizing the property in the future because of those
violations. See, e.g., Disabled Ams. For Equal Access, Inc. v.
Ferris Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005)
(explaining the requirements of establishing an injury-in-fact
under the ADA). Moreover, the second and third elements of
standing are uncontroversial: Panaderia España's alleged failure
to comply with the ADA is the cause of appellants' injury and that
injury would have been redressed by a favorable outcome requiring
those violations to be remedied.
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"specific facts"' regarding the elements of standing." (quoting
Lujan, 504 U.S. at 561)); Wyoming v. Oklahoma, 502 U.S. 437, 464
(1992) (Scalia, J., dissenting) ("The standing issue is obviously
subject to different evaluation, depending upon the stage the
litigation has reached. . . . [To] obtain or avoid summary
judgment[, the] moving party must 'show that there is no genuine
issue as to any material fact,' and [the] nonmoving party cannot
rest on 'mere allegations' to counter a properly supported motion,
but must set forth 'specific facts' through affidavits or other
evidence." (quoting Fed. R. Civ. P. 56)).
In support of its contention that appellants did not
actually visit the bakery, Panaderia España offers no more than
its assertion that appellants fabricated the visits described in
the complaint. Panaderia España fails to substantiate its
allegation or point to any supporting evidence in the record. Such
speculation cannot support a challenge to standing at the summary
judgment stage. Accordingly, we conclude that Panaderia España
failed to meet its initial burden to challenge standing at the
summary judgment phase and, like the district court, decline to
afford any weight to the unsupported allegation that appellants
lied about their visits to the bakery.
In contrast, Panaderia España did proffer support in
favor of its argument that appellants and their attorney are
"testers" by offering the statements of appellants describing
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themselves as testers. Panaderia España contends that, as testers,
appellants are unable to establish an injury because their only
motivation in visiting the bakery was to detect ADA violations.
We have not previously addressed the impact of a
plaintiff's status as a "tester" on her ability to establish
standing under the ADA. However, the circuits that have considered
this issue have uniformly concluded that an individual's "tester"
status does not defeat standing.5 As the Eleventh Circuit
explained in Houston v. Marod Supermarkets, Inc., the ADA
guarantees the right of any individual to be free from "disability
discrimination in the enjoyment of [public places of
accommodation] regardless of [the individual's] motive for
visiting the facility." 733 F.3d at 1332. Congress did not limit
the protections of the ADA to "clients or customers" or otherwise
impose a bona fide visitor requirement. Id. at 1332-34
(contrasting 42 U.S.C. §§ 3604(a),6 and 12182(b)(1)(A)(iv),7 which
5 See Mosley v. Kohl's Dep't Stores, Inc., 942 F.3d 752, 758
(6th Cir. 2019); Griffin v. Dep't of Labor Fed. Credit Union, 912
F.3d 649, 656 (4th Cir. 2019); Civil Rights Educ. and Enf't Ctr.
v. Hosp. Props. Tr., 867 F.3d 1093, 1101-02 (9th Cir. 2017); Colo.
Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205,
1211-12 (10th Cir. 2014); Houston v. Marod Supermarkets, Inc., 733
F.3d 1323, 1332-34 (11th Cir. 2013).
6 Pursuant to 42 U.S.C. § 3604(a), it shall be unlawful "[t]o
refuse to sell or rent after the making of a bona fide offer . . .
to any person because of race, color, religion, sex, familial
status, or national origin."
7Pursuant to 42 U.S.C. § 12182(b)(1)(A)(iv), three prohibited
activities -- denial of a benefit, failure to provide an equal
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do contain such requirements). Hence, such limitations should not
be read into the ADA. Id. We agree with this analysis.
Accordingly, we conclude that appellants' status as testers does
not defeat standing.8
B. Attorney's Fees
Parties in the United States "ordinarily [are] required
to bear their own attorney's fees" absent explicit fee-shifting
authority. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of
Health & Hum. Res., 532 U.S. 598, 602 (2001). The ADA contains
such explicit authority:
In any action or administrative proceeding
commenced pursuant to this chapter, the court
or agency, in its discretion, may allow the
prevailing party, other than the United
States, a reasonable attorney's fee, including
litigation expenses, and costs . . . .
42 U.S.C. § 12205.
opportunity to participate in a benefit, and failure to ensure
disabled individuals are not segregated -- are limited to
"clients[s] or customer[s] of the . . . public accommodation."
8The civil rights movement has a long history of using testers
to uncover and illustrate discrimination. See Havens Realty Corp.
v. Coleman, 455 U.S. 363, 373-75 (1982) (a tester sued a realtor
for providing inaccurate or incomplete housing information);
Pierson v. Ray, 386 U.S. 547, 552-54 (1967) (a group of black
clergymen testers challenged their removal from a segregated bus
terminal in Jackson, Mississippi); Evers v. Dwyer, 358 U.S. 202,
203-04 (1958) (black passenger tester challenged being barred from
the white section of a segregated bus in Memphis, Tennessee). We
recognize that appellee argues that appellants' attorney has
abused that testing tradition in this and other ADA cases. We
make no judgment about the merits of those allegations. They are
not germane to the issues in this appeal.
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To recover fees under the ADA's fee-shifting provision,
a party must demonstrate that she has prevailed in the litigation.
Id. The term "prevailing party" is a "legal term of art,"
Buckhannon, 532 U.S. at 603, and "[t]he concepts that shape th[at]
term apply broadly to the entire universe of federal fee-shifting
statutes." Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 8
(1st Cir. 2011). To qualify as a "prevailing party," the party
seeking to recover fees must demonstrate (1) "a material alteration
of the legal relationship of the parties" (2) that possesses the
requisite "judicial imprimatur." Buckhannon, 532 U.S. at 604-05
(quoting Tex. State Tchrs. Ass'n v. Garland Indep. Sch. Dist., 489
U.S. 782, 792-93 (1989)); see also Hutchinson, 636 F.3d at 8-9.
We review a district court's determination as to "prevailing party"
status de novo. Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir.
2009).
1. Material Change in Legal Relationship
We readily conclude that appellants have established the
first requirement of prevailing party status -- that a material
change occurred in the parties' legal relationship. A material
change occurs when the plaintiff succeeds on "any significant issue
in litigation which achieves some of the benefit the [plaintiff]
sought in bringing the suit." Tex. State Tchrs. Ass'n, 489 U.S.
at 789 (quoting Hensley v. Echerhart, 461 U.S. 424, 433 (1983)).
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As a result of the instant litigation, Panaderia España
hired a structural engineer to assess ADA compliance and made
substantial -- albeit insufficient, according to appellants --
alterations to the bakery. Those changes, detailed in the report
of Panaderia España's expert, addressed several of the concerns
appellants outlined in their complaint, including the lack of
accessible parking, the height of service and dining counters, and
various structural issues in the accessible restroom. By causing
Panaderia España to take substantial steps toward ADA compliance,
Suárez-Torres and Medina-Rodriguez achieved at least some of the
benefits sought in filing their suit and, therefore, a material
change occurred in the legal relationship of the parties.
2. Judicial Imprimatur
The judicial imprimatur inquiry looks to the level of
court involvement in the parties' changed relationship.
Buckhannon, 532 U.S. at 605-06. A voluntary change in conduct by
the defendant, "although perhaps accomplishing what the plaintiff
sought to achieve by the lawsuit, lacks the necessary judicial
imprimatur" for prevailing party status. Id. at 605. In
Buckhannon, the Supreme Court identified only two outcomes that
necessarily satisfy the judicial imprimatur requirement:
(1) "judgments on the merits" and (2) "settlement agreements
enforced through a consent decree." Id. at 604. A narrow reading
of Buckhannon limits a finding of judicial imprimatur to one of
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those two circumstances. See, e.g., Smith v. Fitchburg Pub. Schs.,
401 F.3d 16, 23 (1st Cir. 2005).
We have held, however, that Buckhannon should not be
read so narrowly as to require courts to "look exclusively at the
label attached to a particular order." Hutchinson, 636 F.3d at 9;
see also Smith, 401 F.3d at 26 ("[W]e do not foreclose the
possibility of a broad reading [of Buckhannon] . . . ."). Instead,
"an inquiring court must consider 'whether the order contains the
sort of judicial involvement and actions inherent in a "court
ordered consent decree."'" Hutchinson, 636 F.3d at 9 (quoting
Aronov, 562 F.3d at 90). To that end, we consider both the content
and the context of the order by applying the following factors
identified in Hutchinson v. Patrick: (1) "whether the change in
the legal relationship between the parties was 'court-ordered,'"
(2) "whether there was 'judicial approval of the relief vis-à-vis
the merits of the case,'" and (3) "whether there exists continuing
'judicial oversight and ability to enforce the obligations imposed
on the parties.'" Id. (quoting Aronov, 562 F.3d at 90).
Suárez-Torres and Medina-Rodriguez initially contend
that the district court's summary judgment ruling was functionally
equivalent to a full and complete judgment on the merits and,
therefore, makes them prevailing parties even under the narrow
reading of Buckhannon. According to appellants, the court
necessarily addressed Panaderia España's merits argument to
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conclude that, even in the absence of opposition,9 summary judgment
was not warranted. But even if we were to assume that is so (and
we do not decide that it is), plaintiffs point to no authority
indicating that an order denying summary judgment is equivalent to
a "judgment[] on the merits" within the meaning of Buckhannon so
as to automatically qualify plaintiffs as "prevailing parties."
See 532 U.S. at 604; see also Aronov, 562 F.3d at 90 ("Buckhannon
contrasted final judgment on the merits . . . with . . . for
example, securing the reversal of a directed verdict . . . .").10
Appellants also argue that the application of the
Hutchinson factors demonstrates that the summary judgment order
contains the sort of judicial involvement and actions inherent in
a "court ordered consent decree." We disagree.
9 As we have already explained, appellants attempted to file
an opposition to summary judgment, but it was stricken for failure
to comply with the federal rules.
10 We have not yet determined whether some interlocutory
orders can satisfy the judicial imprimatur requirement of the
prevailing party test. As appellants note, several circuits have
answered that question in the affirmative, but only in the
materially different context of an interlocutory decision awarding
preliminary injunctive relief. See People Against Police Violence
v. City of Pittsburgh, 520 F.3d 226, 232-33 (3d Cir. 2008) (holding
that a preliminary injunction that addresses the merits and alters
the status quo can confer prevailing party status); see also Kansas
Jud. Watch v. Stout, 653 F.3d 1230, 1238 (10th Cir. 2011);
Dearmore v. City of Garland, 519 F.3d 517, 524-26 (5th Cir. 2008);
Watson v. County of Riverside, 300 F.3d 1092, 1095-96 (9th Cir.
2002).
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We first ask whether the change in the parties' legal
relationship was "court-ordered." Hutchinson, 636 F.3d at 9.
Appellants answer that question affirmatively. They contend that
Panaderia España failed to proffer evidence of remedial measures
until the court denied summary judgment, ordered Panaderia España
to submit evidence of "full[] complian[ce]," and enforced that
order with a ninety-day deadline at the January 2018 status
conference. According to appellants, the district court
effectively "forced Panaderia España to do something it otherwise
would not have had to do -- namely, agree [to] become fully
compliant with the ADA [] within 90 days."
The record, however, belies that assertion. In support
of its motion for summary judgment, and prior to any of the
judicial actions referenced by appellants, Panaderia España
submitted a declaration by its owner stating that he had already
hired a structural engineer to inspect the property and had
recently remodeled "[in] compl[iance] with all ADA Standards."
Panaderia España admitted voluntarily that its hired expert
detected additional ADA violations that would be fully corrected
"soon."
The court's subsequent order and imposition of the
ninety-day deadline did not purport to require Panaderia España to
do what it had already done. It simply directed Panaderia España
to substantiate its claims that its property was or would soon be
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"fully compliant with all applicable standards and guidelines
under [the] ADA" to the extent it hoped to "make the plaintiffs'
ADA claims moot at this stage." Such court involvement does not
render the changed relationship "court-ordered" within the meaning
of the first factor of the Hutchinson inquiry. See Aronov, 562
F.3d at 92-93 ("A plaintiff does not become a prevailing party if
the court merely recognizes what the [defendant] has voluntarily
agreed to [do] . . . ." (citing Smith, 401 F.3d at 27)); see also
Hutchinson, 636 F.3d at 9.
Turning to the second factor, we consider whether the
district court "engaged in a sufficient appraisal of the merits,"
even in the absence of a judgment on the merits. Hutchinson, 636
F.3d at 10. Appellants contend that the summary judgment order
included an implicit acknowledgement that the bakery violated the
ADA. According to appellants, the court would not have required
Panaderia España to follow through on its promise to make certain
structural changes and proffer evidence of full compliance with
the ADA if such changes were not required by the ADA.
Even if we agreed with appellants' view that the district
court's ruling implicitly addressed the merits, the Supreme Court
"ha[s] not awarded attorney's fees where the plaintiff . . .
acquired a judicial pronouncement that [a] defendant has violated
the [law] unaccompanied by 'judicial relief.'" Buckhannon, 532
U.S. at 606 (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987));
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see also Aronov, 562 F.3d at 90 ("Buckhannon contrasted final
judgments and court-ordered consent decrees with situations which
failed to meet the judicial imprimatur test: for example . . .
acquiring a judicial pronouncement that a defendant has violated
the Constitution unaccompanied by 'judicial relief' . . . ."
(quoting Buckhannon, 532 U.S. at 605-06)). Hence, an implicit
appraisal of the merits is insufficient under the second prong of
the Hutchinson test.
The third and final factor requires an assessment of
whether the order imposes "an obligation to comply" and whether
there exists "judicial oversight to enforce that obligation."
Hutchinson, 636 F.3d at 10 (quoting Aronov, 562 F.3d at 91). It
is well established that a trial court retains jurisdiction to
enforce its judgments. See, e.g., Beckett v. Air Line Pilots
Ass'n, 995 F.2d 280, 286 (D.C. Cir. 1993). The third prong of the
judicial imprimatur inquiry, however, requires more.
In Hutchinson, we considered whether an order approving
a settlement agreement made the plaintiffs prevailing parties.
636 F.3d at 6. The order "expressly retained jurisdiction over
the case," and it instructed that the "case not be closed and that
judgment not enter pending compliance with the terms" of the
underlying settlement agreement. Id. at 10 (internal citation
omitted). The terms of the underlying agreement also outlined the
parameters of the court's enforcement authority, which included
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the use of "any appropriate equitable or remedial power" and
required court approval for any revisions to the agreement. Id.
at 11 (internal citation omitted). We explained that the district
court's explicit reservation of jurisdiction and the oversight
provided by terms of the settlement agreement "distinguish[ed] the
case at hand from the swath of cases in which a district court
merely recognizes the fact of a settlement and dismisses the
underlying action." Id. at 10-11.
Here, the court entered an order "noting" the
plaintiffs' motion for judgment of dismissal, and, thereafter,
entered judgment and closed the case even though defendants had
not yet submitted any additional evidence of ADA compliance. The
court did identify a mechanism for some judicial oversight, stating
that Suárez-Torres and Medina-Rodriguez could "file a motion to
reopen the case if the defendants fail[ed] to comply with the
deadlines established at the [January 2018] status conference."
In so informing the plaintiffs, the court did not commit to
overseeing the execution of a settlement, suspend final judgment
until compliance was achieved, or otherwise indicate that it would
use equitable or remedial powers to enforce the terms of an
agreement between the parties.
Instead, the court identified the availability of a
post-judgment remedy and indicated the ground upon which it would
entertain a motion for such a remedy. That limited option for
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further relief stands in stark contrast to the settlement
enforcement in Hutchinson or the ongoing role of a court in the
context of a consent decree. See, e.g., In re Pearson, 990 F.2d
653, 658 (1st Cir. 1993) ("A consent decree is not simply a
contract entered into between private parties seeking to
effectuate parochial concerns. The court stands behind the decree,
ready to interpret and enforce its provisions." (citations
omitted)). Whereas a violation of settlement terms in the latter
circumstances results in compliance proceedings in the enforcing
court, Suárez-Torres and Medina-Rodriguez were entitled only to
request that the court exercise its discretion to reopen the case
if Panaderia España failed to keep its promise.
In short, Panaderia España voluntarily agreed to make
substantial changes in response to appellants' complaint, and
appellants have failed to demonstrate the requisite judicial
imprimatur on that outcome to make them prevailing parties.
C. Motion to Reopen
The finality of judgments is a basic tenet of our system
of jurisprudence. United States v. Boch Oldsmobile, Inc., 909
F.2d 657, 660 (1st Cir. 1990). The decision to grant or deny a
motion to disturb a final judgment is, therefore, committed to the
"sound discretion of the trial court." Id. Accordingly, we review
a district court's denial of a motion to reopen for abuse of
discretion. Kinan v. Cohen, 268 F.3d 27, 32 (1st Cir. 2001).
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Appellants contend that the district court erred in
denying their motion to reopen, which alleged that (1) a newly
designated accessible parking spot unlawfully obstructed a
pedestrian walkway, and (2) Panaderia España continued to maintain
a policy of leaving the accessible restroom locked to the public.11
The district court denied the motion to reopen in a summary order,
concluding that the allegations raised therein were "new and
different" from those in the original action and, therefore, did
not warrant reopening the case.
With respect to the encroachment of the accessible
parking spot on a public walkway, plaintiffs recognize that they
did not raise this specific claim in their initial complaint.
Indeed, they could not have included such an allegation because
the issue arose only after Panaderia España attempted to remedy
the lack of accessible parking. Appellants nevertheless contend
that their encroachment-based claim is captured within the
complaint because, for purposes of the ADA, "the totality of
barriers at the public accommodation constitute[s] the factual
underpinnings of a single legal injury, namely, the failure to
remove architectural barriers in violation of the ADA."
Appellants also claimed in their motion to reopen that
11
certain pipes in the newly renovated accessible restroom were not
insulated or configured to protect against contact, but they do
not renew that claim on appeal.
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Several circuits have held that an ADA plaintiff who has
filed suit after encountering a barrier in a place of public
accommodation may challenge all other barriers on that property
related to her disability, including those of which she was unaware
when she initially filed her complaint. See Doran v. 7-Eleven,
Inc., 524 F.3d 1034, 1044 (9th Cir. 2008) ("Even if a disabled
plaintiff did not know about certain barriers when the plaintiff
first filed suit, that plaintiff will have a 'personal stake in
the outcome of the controversy' so long as his or her suit is
limited to barriers related to that person's particular
disability." (quoting Massachusetts v. EPA, 549 U.S. 497, 517
(2007)); see also Kreisler v. Second Ave. Diner Corp., 731 F.3d
184, 188-89 (2d Cir. 2013) (per curiam); Chapman v. Pier 1 Imports
(U.S.) Inc., 631 F.3d 939, 950 (9th Cir. 2011) (en banc); Steger
v. Franco, Inc., 228 F.3d 889, 893-94 (8th Cir. 2000).
However, this case does not present that issue. It does
not matter whether appellants could have pursued their
encroachment claim if they had continued to litigate their case.
The question before the district court was whether it should
disturb final judgement based on a concededly new, although
related, argument for noncompliance. We conclude that the district
court did not abuse its broad discretion in answering that question
in the negative.
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The district court similarly did not abuse its
discretion in declining to reopen the case based on appellants'
allegations that Panaderia España continues to maintain a
discriminatory policy of leaving the accessible restroom locked.
This claim was plainly raised in the initial complaint. The record
shows, however, that the agreement between the parties resulting
in dismissal was apparently limited to Panaderia España agreeing
to remedy the identified structural violations, but not the
restroom policy.
In their motion for a judgment of dismissal, appellants
expressed their satisfaction with Panaderia España's agreement to
complete the "required changes or adjustments to the design of the
locale," without mentioning an agreement regarding the accessible
restroom policy. Similarly, in its motion certifying compliance
with the 90-day deadline, Panaderia España stated only that its
"facilities comply with all ADA Standards." Hence, the district
court reasonably concluded that Panaderia España remedied "any and
all alleged and supposed structural and design deficiencies raised
in the ADA complaint," that the restroom policy was outside of the
scope of the parties' settlement, and, thus, that the allegation
regarding the operation of the accessible restroom did not justify
disturbing final judgment. Accordingly, the district court did
not abuse its discretion in denying appellants' motion to reopen.
Affirmed.
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