today this case involves two different members of one organization the one organization is the midwest disability and initiative the two members exactly he alleged in his case that these unlawful barriers existed and he sought an initially when he filed his action an order requiring that the barriers be remediate test later decided that he no longer was interested in pursuing that particular piece of litigation and in fact he decided he was no longer interested in being a member of  result mr testers claim against this particular facility nikos tacos was dismissed ations was dismissed as well i  appreciate both both claims were dismissed i appreciate that you're on a right yes and they were dismissed pursuant to stipulation with prejudice oath claims so later approximately six months later  action seeking to redress the separate instance of discrimination that mr dorian suffered some six months after mr test alleges that he suffered his the district court decided that and m d i and that was ultimately dismissed with prejudice for both parties because mr test decided he was no longer interested in pursuing it and so that's the discreet issue here now before this court is is that judgment correct that the principles of race you to cut a bar this second action make sure i understand the parameters of your position that i understand the position of mr dorian completed his case on the merits got some some remedy or did the next day a third member of m v i i could bring a claim against nikos alleging  additional barriers that could have been what were not pursued under steger by mr doing and i believe that's a correct interpretation of lawyer honor that the whole position of yes  the hope would be that the first thing in the law that would that would bear that out certainly not in this circuit well i mean i meant perhaps i missed and i want to clarify that but that's that is is the expanse of the dramatically expansive and distinct bear and if it's a new and distinct instance of discrimination and if it violates federal law absolutely there is no free pass for businesses who are sumit there is under the law of racial judicata claims that that could have been a saw asserted are within the scope that's correct your honor but if yours now you're saying your position here because you can have what you can find another member is free of that restriction i don't think i'm saying that what i'm what i'm saying judge is i think we're i'm getting my wires crossed a little bit but what i'm contemplating is a separate instance of discrimination at involving a separate party on a separate date and the facts here are separate violation could not rather than dismissed its claim in the test the suit yes it could have come in with mr doyenne or another well you didn't it wasn't a class action but there could have been another member could plaintiff but m d i is only there for they have associations standing and they'd have to have another member that was subjected to the same discrimination in that first test a suit they did not your honor and tell six months later when another member was subjected to discrimination so i don't think it's accurate to describe our position at least that instead of dismissed test as claim they could have just gotten another guy there i don't think that's possible factually and i and i would find that  somewhat distasteful in any event but the facts here certainly don't involve that contention the facts here that another completely distinct individual six months down the road this business hasn't done anything they encountered the discrimination they're seeking to in which he is not a designated party or to which he has not been made a party by service a process goes on to tell us though that a party is representation of a nonparty is adequate for purposes of the analysis if the interests of the non party and her representative are online and either the party understood itself to be acting in a representative capacity or the original court  initially set out to correct what he contended was clear unlawful discrimination he has interest would have been precisely aligned with mr doyle in there but one cab yeah he didn't have all of the same claims mr jointed but you're all right let me suggest this is the argument put it can be made whether or not you want to focus on him or mr test a better organization both mr test and m d i in the first case decided to throw in the towel so whether you want to focus on mr tester or not the fact of the matter is that those and getting to your honor's question after they decision was made to throw in the towel their interests were not aligned with mr doyle and they were diametrically opposed at that time mr doyenne wishes to require this premises to come into compliance with the a da through litigation neither m d i give me your best federal appellate decision for this way to there and then there's some additional cases on pages twenty one twenty two that articulate the put some meat on the bones if you will absolutely without question the association is only a party only has a role and that case through associational standing if the member no longer has an individual basis for standing the organization does not show your position legally that mt i would never have association will standing for any member other than the one who was a plaintiff a co plaintiff  the action my position or honors the demby i will never have associations standing unless they have a member that was subject to the specific discrimination i said have to be a core plaintiff it could be a cold member but they have to be subject and test its missile doesn't destroy your standing which was your assertion it does if they didn't have another individual who could stand in his place and there's nothing in the record indicating they did you're saying a plaintiff with associational standing has to have a member co plaintiff not as a copilot if they have to have a member of the honor that can establish standing and once tested decided he didn't want to participate they did not have that member there is no question in my mind that this case assertion it's under the the contrary to what was argued and steger for sure steger i don't think was a race judicata case it had to do with whether or not you could look wise but i was there you know  i'm ok my frame of reference many might here's my concern is that for example you've got let's say i'm a member of the n r a and i don't know charlie who is another member of the n r a arts call at the sierra club but charlie has brought this case with the n r a and it's a vital right to bear arms case ok and i'm very interested in that is true personally but then charlie decides that he doesn't want to pursue that case anymore they never litigated anything on the merits they filed it then they decided to dismiss it and i since they were a party on the case not participate in the dismissal and was subject to this missile i never knew charlie i never knew that he brought this case i had no idea about well did you have a claim at that time no well let's assume i didn't like mr doyle and didn't hear let's assume i didn't but later i have a run in with law or something about that and i do have the same right to bear arms claim and i say i want to do this now is it is wrong is the race judicata principle so broad that it would say no when charlie and the n r a dismissed their claim they were flushing your rights away at the same time so you're out of luck and i say well wait a second how does that work and the same could be true from the other end of the political spectrum the sierra club if if this year club  brings a clean one of their members brings a clean water citizen suit on the north shore where i go a lot they start a suit because this company's putting too much mercury in into the stream in violation of permit later joe blow who i've never met before decides he doesn't want to do it anymore so this year club and joe blow does mr suit i come along find out about this it's in a stream that i can do when i want to do a citizen's suit but because i'm i'm a member of the sierra club i'm barred that's what this holding that's why we're here because of the breadth of this holding and what it does to members who had no idea about a first claim that their organization and some member they had never met was doing about the ability of that organization and that member to impact and in fact this rate and the eliminate other members did not have any rights and tell he attempted to patronize that building your honor six months later it was a subsequent arising right it did not exist friggin please the court poll tester was a party to the first lawsuit and he was there to represent himself and he i was also a party to the first lawsuit and poll tested did not need an organization to represent is it and i was there to represent the a larger group specifically its members this appeal presents two questions first whether m d i adequately represented the interests of its members when it decided to sue nikos taco bar in april of twenty seventeen and so what what did the district court find what is here to show the attica adequate representation absolutely so the two elements that the first is that their interests are are aligned and if the interests in the lawsuit the trial court correctly found that dorian's interests in this lawsuit are true move architectural barriers and he goes and not merely architectural barriers architectural bears that affect his particular disability he's mobility disabled and even more specifically architectural barriers present in the and not merely architectural barriers but affecting a person with a mobility disability present in the parking lot in the accessible route and accessible entrance and in the bathroom so the court concluded that their interests in the lawsuit were aligned with the focus on the next part their representative capacity because then i'm just trying to figure out what kind of finding needs to be made by the district court that this was adequate to to then preclude someone else from bringing suit i representative in the first case either understood itself to be acting in a representative capacity or whether the court took pains to ensure the protection of non parties and the m p i certainly understood itself to be met the associational standing requirements exactly it could have brought suit without a co plaintiff and also long as at least one of its members would otherwise have had standing and that is part of the association of standing analysis but what about the fact that  you're saying could they have proceeded even without test to my understanding of the most recent cases on association standing in the circuit within the last year are that the organization has association of d i could have taken remedial actions within that case to secure it standing and it didn't do so your honor doing was represented at the time and the question isn't whether another person had another member had suffered injury it's whether another member could have had could have had standing and doing was a member of m d i and was and would have was impacted in the same way by the banal i think if  sue on his own then we would wouldn't we say he lacks standing because he'd never been to the restaurant you can't just i'm pretty sure we would say don't you think the law is that if somebody just  rs about your restaurant that you don't have appropriate parking or whatever they can't file a lawsuit unless they've actually gone there and been injured absolutely your honor now there's i will you it was that was the right and yeah that was that yeah never talks of so you say well so that that suggests that the organization couldn't proceed once tested woodrow if dylan had never been to the restaurant or nobody else in the organization honor there is no evidence there's no allegations at the trial court level of whether and when paul testa stopped being a member of m d i it the case was not dismissed based on a standing issue this is there no basis for the trial court i did wonder if m d i ended up lacking standing why it would be dismissal with prejudice it was stipulated to dismissed with prejudice yeah but i mean that would be one way maybe to circuit including at the time the first case was filed so the public record demonstrates that they were parties or that they were called plaintiffs in the doing as a member of m d i when m b i found its first lawsuit not just any type of  lawsuits regarding architectural barriers and businesses seeking the same type of remedies represented by the same attorney and so the court looked at those facts and said m d i will must have been acting in a representational capacity representing at least its members doyen was a member of the time the first lawsuit was filed and so he was adequately represented by m d i for purposes of race judicata now that that that's consistent with the  example in the yankton suit tribe matter in the first lawsuits the the tribe brought a lawsuit against the u s department of health and human services for its attempted closure of an emergency room if it  had some named members in the first lawsuit as well and one obtained a permanent injunction that prevented the department from closing in emergency rooms until certain conditions were met the department met those conditions and successfully petitioned to have the injunction removed after it was removed at the department scheduled subsequent closure dates and the tribe and different members sued the department a second time and the court said these claims are precluded because the tribe was there as a representative of all its members not just those that were named and that the members in the second lawsuit were members in the first lawsuit so in this case i'm soon going back to the analysis in some really what you're relying on is what they put in the complaint yes and there's nothing else about this litigation that you can point us to that suggests or shows that there was sort of a vigorous defense of the of the case or prosecution of the case on behalf of the group correct it's what it's what's in the complaint which indicates that m d i had suffered no direct injury and that one of its members at least one of its members suffered a direct injury and had standing but that m d i was there specifically allied with its purpose of blazing a trail and making a path by holding businesses accountable for violations of that media because test it could bring this case is a himself correct on his own and so it's sort of a negative inference the only reason there's no other reason for you to be there is what you're saying and so that is sufficient for purposes of the pretty into the correct there's no there's no other reason and there's no other means by which m d i could be there under the facts alleged in the first complaint it did not have a direct claim so it couldn't be there to represent itself and it didn't need to be there to represent tested because he was a party so it must have been representing a broader class  in addition of the allegations that it makes seeking discovery of all barriers not even those that specifically relate to mr test as disability and removal of all such barriers not just those that would relate to mr test that that person could bring a suit against you and would not be precluded this certainly that that person would be able to bring a suit and i'll be precluded now if there were evidence or allegations that a brought in the first copy how about same barrier with the different limitation because the second plaintiff has a different disability then it would your honor and as i understand steger and its progeny the question would go back members so if it had for example a member who was blind my understanding is m d i would have standing to even though no blind member had ever tried to go to the er i mean i'm not entirely sure on whether that is the status quo i think that is the the extreme end of the law here so if there were if there if any i did not have any blind members we're gonna see the outcome of the first case in a member who an individual who is b me is that the the merits of the lawsuit will turn on the feasibility and reasonable miss of the remedy for a particular barrier and the remedy may well change depending upon  the way the barrier is impacting the person with a particular disability so how can you know the first the first person who needs a wheelchair may be perfectly satisfied if the thing is lowered and the blind person says wait a minute and got braille and i i still can't use the restroom you're out you're on and i say i'm running out of time the hypothetical here i think is a very interesting one but luckily it's not one that we need to answer because both individuals here suffer from the same type of disability and so there is no dispute that m d i could have and in fact did assert the same categories of claims and the same types of claims and in the first place and those barriers that mt alleged are are the same we don't have to answer the question of what would happen if if mr dorn were blind instead of in a wheelchair the there is a case on page four of our materials that sets forth the requirements for associational standing versus washington state that does say that an association does not have standing unless its members would otherwise have standing to sue in their own right among other why was the m d s claim dismissed on the merits but through stipulation but i mean why doesn't that mean that you  litigated the merits and you weren't out for lack of standing but i think what i'm suggesting is that because m d i did not have another member who could establish in his own right standing empty i did not have associations standing to proceed after mr tests decided he didn't want to write so they didn't have much choice than to dismiss well i didn't have the option to say judge we moved to dismiss our claims without prejudice because we now  plays to claims that have or could have been bought and that's true in a general sense but not if they don't pass the muster of struggle and those three primes then don't raise judicata doesn't apply and i just can't see that someone who throws in the towel adequately represented somebody who wants to vigorously pursue it and then the claims do have to be the sunniest your parade of horribles problem though seems to be solved isn't it if you could have dismissed without prejudice i think that is just rule and the problem here isn't that the law is bad it's that you made a tactical decision for whatever reason to write on the merits i appreciate and i think of the tactical decision would have been made correctly in that regard we wouldn't be here but i think in spite of that application of these principles clearly demonstrates that this hypothetical n r a member i mentioned is not barred under these circumstances lastly now they do have to be the same claims these were different in