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Judges Blast 'Tyranny' of Curbing Frequent ADA Filer

The 9th U.S. Circuit Court of Appeals has again upheld a “vexatious litigant” order against a frequent filer of disability discrimination lawsuits -– but over the strenuous objections of nine dissenting judges.

Chief Judge Alex Kozinski was particularly upset that the full court refused to review a three-member panel's opinion, referring to the “tyranny” of the trial judge who ordered Jarek Molski in December 2004 to seek his permission before filing a discrimination suit in the Central District of California and describing the order as “draconian.”

“I’m very sorry that such an order was ever entered, and on such a non-existent record,” he said in his dissent. “I’m even sorrier that our panel has seen fit to affirm it, and that our full court has chosen to look the other way.”

Molski, a paraplegic, has filed about 400 suits against restaurants and other businesses in California since 2003. He sues under both the Americans with Disabilities Act (ADA), which provides injunctive relief and attorney's fees, and California's Unruh Act, which entitles him to statutory damages of at least $4,000.

In an Aug. 31, 2007 decision, the 9th Circuit ruled that U.S. District Judge Edward Rafeedie did not abuse his discretion in declaring Molski a vexatious litigant. And the full court this week denied Molski's petition for rehearing en banc.

“False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice,” the panel opinion said, asserting it was “very unlikely that Molski suffered the same injuries, often multiple times in one day” while visiting retail establishments.

But another of the dissenters, Judge Marsha L. Berzon, said Molski “provided a reasonable explanation for the similarity of his injuries” and, even if his allegations of injury were without merit, “past actual injury is not necessary to bring a claim under Title III of the ADA.”

The panel's concern with serial ADA litigation is “shared by many,” she concluded, but “I fear that the panel’s opinion may be widely used to restrict critical private enforcement of civil rights laws by other litigants and lawyers.”

Kozinski, meanwhile, focused on Rafeedie's failure to hold an evidentiary hearing and suggested the panel was insensitive to the predicament of Molski, who uses a wheelchair.

“It's bad enough that the panel relies on its own armchair wisdom about plaintiff’s supposed ability to avoid repetitive injuries, rather than looking to whether the record supports the findings of the district court,” he wrote. “Worse still is that there is no [evidentiary] record the panel could consult if it were of a mind to do so.”

The chief judge recommended that the Central District now “adopt a local rule or general order that any judge wishing to bar a litigant or a law firm from accessing the court must obtain the concurrence of a committee of his colleagues.”

Rafeedie, for one, will not have to do that. He died in March at the age of 79.

By Matthew Heller
4/8/08