The United States Supreme Court limited opportunities to establish organizational standing, in 2024, under Article III of the Constitution (and therefore, as applied to Fair Housing Act (FHA) complaints brought by advocacy groups without an individual plaintiff). See FDA v. Alliance for Hippocratic Medicine>, 602 U.S. 367 (2024). Lower federal courts are now beginning to similarly narrow the analysis of an "injury-in-fact" sufficient to confer Article III standing under the FHA, both following Alliance and in the case of individual plaintiffs. As emphasized in Alliance, concrete and particularized injury to the plaintiff is required for constitutional standing in an FHA case in federal court. Some of these lower court decisions hold that a "drive-by," serial plaintiff, common under the Americans with Disabilities Act (ADA) and becoming more frequent in FHA accessibility design and construction cases, must have a fact-specific, well-pleaded basis for Article III standing beyond simply that plaintiff's alleged role as a "tester," or someone "interested" or "concerned" about FHA accessibility compliance.
In September, a judge in the United States District Court for the Western District of Texas dismissed without prejudice an individual plaintiff's complaint alleging design and construction violations of the FHA at a newly constructed multi-family residential community. Millerborg v. Z Modular San Marcos Flatz 5012, LLC, et al., Case No. 1:25-cv-01700-RP (U.S. Dist. Ct. W.D. Tex. Sept. 30, 2026). The Court dismissed the complaint under the FHA on two bases. First, the Court reasoned that, by not actually applying for a rental unit or even intending to rent a unit, the individual plaintiff had not pleaded discrimination "in the sale or rental" of a dwelling as prohibited by the FHA. Second, the Court determined that merely identifying alleged barriers does not amount to concrete or particularized injuries sufficient to support standing in federal court. Absent allegations that a plaintiff actually encountered specific barriers affecting the accessibility of the multi-family community himself, he had not suffered the kind of injury that would grant him Article III standing to sue in federal court.
A judge in the United States District Court for the Middle District of Florida recently dismissed a similar complaint on similar grounds. Hull v. Richland Grand National 1, LLC, Case No. 6:25-cv-1680-JSS-DCI, 2026 WL 1453407 (M.D. Fla. May 22, 2026). The Court held that the plaintiff had failed to allege Article III standing, taking umbrage with the plaintiff's vague allegations that the alleged FHA violations "would interfere" with his rights, caused him to "experience discrimination," and even "deterred [him] from renting." Moreover, relying on Eleventh Circuit precedent, the Court held that a mere intention to return to the multi-family residential community was too speculative to qualify as a concrete injury, as opposed to an actual intent to rent or visit a resident of the community. Id. at 7. The Court in Hull found that an allegation of "being deterred from renting" solely from observing purported statutory violations is an insufficient "injury" for standing because it was solely "psychological harm" and insufficiently "concrete." Id. at 10-11, (relying on TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)). Notably, the plaintiff in Hull did not claim that any of the alleged statutory accessibility deficiencies actually prevented him from accessing part of the community. Id. at 12. The Court held that allegations that observed FHA design and construction violations could present a problem for the plaintiff in the future were merely conclusory and could not establish standing, even for declaratory or injunctive relief. Id.
Notably, standing can be challenged at any point in legal proceedings as they arise under subject matter jurisdiction. Whether alleged in an early motion to dismiss or at a later date, we expect to see similar constitutional standing challenges become more pervasive. Because standing goes to subject matter jurisdiction, if a plaintiff lacks standing, a defendant may avoid discovery costs (including inspection costs) early on in a way that has not always been assumed to be available in cases involving individual plaintiffs acting as "testers." If plaintiffs continue to rely on their typical copy-and-paste allegations in federal court complaints of "encountering" or "observing" FHA accessibility violations, we anticipate that motions to dismiss for failure to establish an injury-in-fact (and thus lack of Article III standing) may pose a greater likelihood of success under this developing caselaw.
For more information about these developments or their potential impact on FHA accessibility litigation, please contact the authors or any member of Baker Donelson's Fair Housing and Accessibility Team.