Griffin v. Dept. of Lab. Fed. Credit Union, 18-1312, 2019 WL 80704 (4th Cir. Jan. 3, 2019), decided earlier today, the Fourth Circuit gave the defendant credit union a victory that on its face is meaningful only for credit unions and other membership organizations. However, although its conclusive denial of standing for the plaintiff was stated in the narrowest terms, the reasoning implies a view of standing with much broader implications. Standing requires that a plaintiff have have suffered a past injury that was concrete and particularized, and face the imminent threat of future harm. The Court concluded Griffen met none of these requirements because he was ineligible as a matter of law to use the services of the defendant credit union.
The Court first found the harm Griffin suffered when he was unable to use the credit union’s web site was not concrete. The first step toward this conclusion was the Court’s characterization of his harm as a “dignitary harm;” that is, some kind of insult or affront to his dignity. The Court recognized that dignitary harms can meet the injury requirement for standing, but found the harm suffered by Griffin was not “concrete” but abstract because he was already barred by law from using the services offered by the defendant and its website. The Court’s argument is poorly explained, but the underlying logic is clear. An affront to personal dignity that arises from exposure to a discriminatory condition is abstract unless there is at least the possibility the plaintiff could have gone beyond that single exposure to actually use the facility in question.
The Court also rejected the notion that Griffin suffered a concrete harm because he was denied access to information about the credit union. Being denied access to information, the Court explained, creates a concrete injury only if the information is relevant to the plaintiff, and information about a credit union Griffin could never join was not relevant.
Moving to the requirement that harm be particularized the Court again found that a particularized injury could not flow from mere exposure to a discriminatory condition that was not relevant to the plaintiff. What Griffin experienced when he went to the credit union website was exactly the same thing that would be experienced by any blind member of public; it was not particular to him. A potential credit union member, on the other hand, would suffer an injury that, while not unique, was limited to an identifiable group smaller than every blind person who might see the website.
Finally, and sensibly, the Court rejected the notion that Griffin could plausibly claim he was likely to suffer any future harm. Analogizing the situation to that of a plaintiff who lives far from a physical location it found that Griffin’s inability to join the credit union made it implausible he would return to the website in the future. It also rejected his claim that return was plausible because he was acting as a tester, finding that while tester status did not preclude him from having standing, it also could not give him standing that did not otherwise exist.
Each step in the Court’s analysis applies to many plaintiffs whose relationship to a website is tenuous, even if not absolutely precluded by law. The distinction between a dignitary injury that consists only of being aware of a discriminatory condition and a dignitary injury that arises from exposure to a relevant discriminatory condition is one that will apply to almost every ADA plaintiff in website cases. It is obvious that most are simply trolling the internet looking for lawsuits without any intent to ever use the services of the website or its owner. The pleading standards in Iqbal and Twombly should require such plaintiffs to at least plausibly allege the website’s offering are relevant to them before being able to claim a concrete and particularized injury arising from mere exposure to a discriminatory condition. More important, since standing must be proved at trial and few of these plaintiffs can plausibly claim the necessary concrete and particularized injury their path to victory is fraught with peril.
As for future harm, the Court’s reliance on the implausibility of return is too narrow, for it overlooks the requirement that upon return the plaintiff is likely to suffer some injury. A plaintiff who does not suffer a concrete and particularized injury from his first exposure to website cannot suffer a future concrete and particularized injury no matter how many times he returns. The Court’s reasoning with respect to past injuries eliminates any possibility of future injury.
Despite the Court’s claim that the decision is limited to those who cannot, as a matter of law, use the services of a website or its owner, the reasoning behind the decision will apply to many ADA cases, including physical access as well as web access cases. It is not only a major victory for the credit unions, but also for every business facing lawsuits filed by plaintiffs who have no intent or even ability to take advantage of the goods and services offered and whose injury rests on the supposed affront to dignity created by exposure to discriminatory conditions.
For another perspective on this case see William Goren’s blog on standing here