Civil Rights: Losing ADA Plaintiff’s Suit Was Not Frivolous Such That District Court’s Fee Denial Was Correct

Plaintiff’s Case Resulted in Published Decision Clarifying “Equivalent Facilitation” Issue Which Had A Prior Split Result Between Two District Courts.

     Alice Roosevelt Longworth and Theodore Roosevelt, Jr., with men in wheelchairs.  1927.  Library of Congress.

     Plaintiff, a disabled person using a wheelchair, sued defendant—running a retail clothing store “House of Flava”—under Title III of the American with Disabilities Act (ADA) and related state statutes because he could not make a diagonal transfer from his wheelchair onto a dressing room bench running the entire length of the dressing room wall. However, the district judge granted summary judgment to the defense, finding that despite a violation of DOJ’s Accessibility Guidelines, plaintiff had “equivalent facilitation” because he could make a parallel transfer onto the store bench. That prompted the defense to move for recovery of its attorney’s fees under the ADA, 28 U.S.C. § 1927, and the “inherent power of the court.” The district court denied that motion.

     Both results were upheld on appeal, despite the defense’s cross-appeal of the fee denial in Kohler v. Flava Enterprises, Inc., No. 11-56814 (9^th Cir. Mar. 6, 2015) (published). Under the ADA’s fee-shifting provision, 42 U.S.C. § 12205, the defense only is entitled to fees if the action was “frivolous, unreasonable, or without foundation”—hardly the case here given that plaintiff’s case involved interpretation of an ADA provision confronted in the first published decision and also clarified a question with split district court decisions. No evidence showed subjective bad faith to justify § 1927 sanctions much less “inherent power of the court” sanctions.