Brief for the National Federation of the Blind as Amici Curiae Supporting Appellant, Daniels v. Arcade, L.P., No. 1:10-cv-00607-RDB (4th Cir. May 10, 2011).

On May 10, 2011, the National Federation of the Blind ("NFB") submitted an amicus curiae brief on behalf of Gilroy J. Daniels supporting his appeal to the 4th Circuit regarding a District Court decision granting a motion to dismiss against him for lack of standing. Daniels, along with another plaintiff, had sued Arcade L.P., which operated a market that Daniels claimed contained inaccessible entrances, ramps and restrooms. The Maryland District Court ruled that Daniels could not establish standing because he did not suffer a concrete, particularized injury. This amicus brief specifically challenges the extremely narrow approaches that recent court opinions have taken on the question of standing, and should be of broad use to anyone working on an ADA case.

In its brief, the NFB argues that Daniels should be granted standing. The NFB first notes generally that the Supreme Court has advocated for a "broad view of constitutional standing in civil rights cases, especially where, as under the ADA, private enforcement is 'the primary method of obtaining compliance with the Act.'" Second, on a specific level, in determining whether the plaintiffs suffered a concrete, particularized injury, the Maryland District Court applied the test outlined in Judy v. Pingue, 2009 WL 4261389 (S.D. Ohio 2009), which took into consideration five factors: 1) proximity, 2) past patronage, 3) definitiveness of plans to return, 4) frequency of travel near the defendant and 5) number of previous lawsuits filed. The NFB brief argues against using each of these factors. The NFB argues that since the proximity factor conditions a plaintiff's standing on how closely he or she lives to the discriminating business, it penalizes the plaintiff's constitutional right to travel. The NFB then notes that the next three factors – past patronage, future patronage and frequency of travel – are unreasonable because they demand a person with a disability be prepared to repeatedly subject himself to continued discrimination after having suffered it once. As for the last factor, the NFB argues that the plaintiff's previous litigation history should not be considered because there are rampant ADA violations occurring and such violations can only be remedied through private action. Therefore, the justice system should not discourage repeated filings of these suits.

Overall, the NFB argues that the threat of private enforcement is central to getting discriminating parties to comply with the ADA. Therefore, barriers that prevent individuals with disabilities from accessing courts to enforce their rights, such as stringent standing requirements, should be removed. The NFB advocates for a less restrictive standard for determining whether a concrete, particularized injury has occurred, taking into account three factors: 1) does the plaintiff have a disability, 2) does the access barrier remain and 3) would the plaintiff be willing to return to the public accommodation if the barrier were removed.