Karla Brintley v. Belle River Community Credit Union

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0215p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

KARLA BRINTLEY, ┐
Plaintiff-Appellee, │
│
> Nos. 18-2326/2328
v. │
│
│
AEROQUIP CREDIT UNION (18-2326); BELLE RIVER │
COMMUNITY CREDIT UNION (18-2328), │
Defendants-Appellants. │
┘

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 2:17-cv-13912; 2:17-cv-13915—Arthur J Tarnow, District Judge.

Argued: August 8, 2019

Decided and Filed: August 27, 2019

Before: GILMAN, SUTTON, and WHITE, Circuit Judges.
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COUNSEL

ARGUED: Joseph A. Starr, STARR, BUTLER, ALEXOPOULOS & STONER, PLLC,
Southfield, Michigan, for Appellants. Richard H. Hikida, PACIFIC TRIAL ATTORNEYS,
P.C., Newport Beach, California, for Appellee. ON BRIEF: Joseph A. Starr, William R.
Thomas, STARR, BUTLER, ALEXOPOULOS & STONER, PLLC, Southfield, Michigan, for
Appellants. Scott J. Ferrell, David W. Reid, PACIFIC TRIAL ATTORNEYS, P.C., Newport
Beach, California, Jennifer B. Salvatore, SALVATORE PRESCOTT & PORTER, Northville,
Michigan, for Appellee. Patricia Corkery, MICHIGAN CREDIT UNION LEAGUE, Lansing,
Michigan, Christine A. Samsel, BROWNSTEIN HYATT FARBER SCHRECK, LLP, Denver,
Colorado, for Amici Curiae.

SUTTON, J., delivered the opinion of the court in which GILMAN and WHITE, JJ.,
joined. WHITE, J. (pg. 8), delivered a separate concurring opinion.
 Nos. 18-2326/2328 Brintley v. Aeroquip Credit Union et al. Page 2

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OPINION
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SUTTON, Circuit Judge. Karla Brintley sued two credit unions under the Americans
with Disabilities Act, claiming that they failed to make their websites accessible to blind
individuals. But Brintley never suffered an Article III injury from the alleged ADA violations.
Why? She lacks eligibility under state law to join either credit union and her complaint does not
convey any interest in becoming eligible to do so. We therefore reverse the district court’s
contrary decision.

I.

Karla Brintley lives in Michigan and is blind. To navigate the internet, she uses a screen
reader. The software works like it sounds: It scans webpages and narrates their contents. The
technology remains in its infancy. It struggles with some material, especially pictures and video
unaccompanied by alternative text. With some effort, companies can make their websites fully
screen-reader compatible. But not all companies have taken that step.

Enter Aeroquip Credit Union and Belle River Community Credit Union. Established
under Michigan law, these domestic credit unions provide a range of financial services to their
members, including checking and savings accounts, loans, credit cards, and mortgages. Both
credit unions maintain a limited brick-and-mortar presence. And both of them operate websites
containing information about their membership eligibility and services. Brintley tried to browse
these websites a few times but found her screen reader unable to process some of their content.

An acknowledged “tester” of website compliance with the Americans with Disabilities
Act, Brintley sued the credit unions in federal court under the Act and its Michigan state-law
counterpart. She sought compensatory and injunctive relief on the theory that the websites were
a “service” offered through a “place of public accommodation,” entitling her to the “full and
equal enjoyment” of the websites. 42 U.S.C. § 12182(a). The credit unions moved to dismiss
the claims, arguing that Brintley failed to satisfy Article III standing. The district court rejected
each motion.
 Nos. 18-2326/2328 Brintley v. Aeroquip Credit Union et al. Page 3

II.

The United States Constitution empowers federal courts to decide “Cases” or
“Controversies.” U.S. Const. art. III, § 2. Embedded in this limitation is the imperative that
claimants establish Article III standing to bring a claim. To meet this “irreducible constitutional
minimum,” Brintley must show three things: that she sustained an injury in fact, that she can
trace the injury to the credit unions’ conduct, and that a decision in her favor would redress the
injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

Today’s case turns on the first of these criteria, injury in fact. As to that, Brintley must
show an invasion of a “legally protected interest” that is both “concrete and particularized” and
“actual or imminent.” Id. at 560. Not only must her injury be “real,” but it also must affect her
in some “personal and individual way.” Id. at 560 n.1.

The credit unions did not injure Brintley. The key problem is that state law barred her
from receiving any of the credit unions’ financial services. Under Michigan law, domestic credit
unions may assist only those falling within a narrow “field of membership” based on one or more
“common bonds.” Mich. Comp. Laws § 490.352. What are common bonds? Think shared
community interests like a common occupation, a common religious identity, or a common place
of residence. Id. Brintley isn’t within any of these fields of membership, and her complaint
never says that she plans to change that reality any time soon.

Two of our sister circuits recently considered nearly identical cases, and each one
dismissed the claims for this precise reason. The Fourth Circuit resolved the issue in this way:
“[W]e address only whether this plaintiff who is barred by law from making use of defendant’s
services may sue under the ADA for an allegedly deficient website. The answer to this narrow
question here is no.” Griffin v. Dep’t of Labor Fed. Credit Union, 912 F.3d 649, 653 (4th Cir.
2019); see also Carroll v. Nw. Fed. Credit Union, 770 F. App’x 102, 104 (4th Cir. 2019). The
Seventh Circuit did likewise: “[A] plaintiff who is legally barred from using a credit union’s
services cannot demonstrate an injury that is either concrete or particularized.” Carello v.
Aurora Policemen Credit Union, No. 18-2887, 2019 WL 3072152, at *2 (7th Cir. July 15, 2019).
Nothing about Brintley’s case counsels a different outcome.
 Nos. 18-2326/2328 Brintley v. Aeroquip Credit Union et al. Page 4

By way of response, Brintley offers several possible ways to satisfy the injury-in-fact
requirement. None does the trick.

Despite the barrier imposed by Michigan law, Brintley says in her amended complaint
that she “wants to avail herself of [the credit unions’] banking services.” R. 35 at 5–6. But she
never says that she has made any efforts to become eligible. What the Court said in Lujan
applies here: “[T]he affiants’ profession of an ‘inten[t]’ . . . without any description of concrete
plans, or indeed even any specification of when that someday will be—do not support a finding
of the ‘actual or imminent’ injury that our cases require.” Lujan, 504 U.S. at 564. Brintley’s
amended complaint does not contain the sorts of “concrete plans” that could elevate her intent
into an injury a federal court could hear. There is no indication, for instance, that she has any
plan to move to St. Clair County (to become eligible for Belle River Community Credit Union)
or to apply for a job at Aeroquip Corporation (to become eligible for Aeroquip Credit Union).
We have no authority to imagine the dots that she might one day connect to create an injury in
fact. What matters now is that she has no plans to become a member of either credit union or
otherwise obtain the status that would allow her to do so.

Brintley worries that this approach makes too much of the constraints imposed by
Michigan law. After all, she says, the Americans with Disabilities Act doesn’t impose a “client,”
“customer,” or “patron” requirement. Appellee’s Br. 14–15. That is not quite true. The truth is
that the Supreme Court has reserved judgment on the point. See PGA Tour, Inc. v. Martin,
532 U.S. 661, 679 (2001). But even if Brintley turns out to be right on this score, this conclusion
would bear only on her statutory standing to seek relief, not her Article III standing. See
Roberts v. Hamer, 655 F.3d 578, 580 (6th Cir. 2011). Consistent with this distinction, other
courts have permitted non-client parties to bring claims only when they independently
established injury in fact. See, e.g., Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113, 122
(3d Cir. 1998) (holding that a non-employee doctor with staff privileges at a hospital had
standing to sue the hospital under the Act). There’s no reason to ignore that requirement today.

What of the possibility that she wants to access the websites in full to determine whether
to become a member of either credit union? Just as sighted individuals who are not members
may wish to check out the websites to determine whether to become members, Brintley claims
 Nos. 18-2326/2328 Brintley v. Aeroquip Credit Union et al. Page 5

she should have the same right. Yes and no. Yes, if she claimed an interest in joining one of the
credit unions, she would be on the same footing as a sighted individual engaged in the same
inquiry. But no, that is not her position. She has not conveyed any intent to join either credit
union. And just as a sighted individual with no inclination to join a union could not raise, say, an
Age Discrimination in Employment Act claim about a credit union’s hypothetical age-based
membership policies, so she cannot bring an ADA claim. See Griffin, 912 F.3d at 655 (holding
that a plaintiff’s injuries can’t be particularized without a “connection between the plaintiff and
the defendant” not common to the general public).

Brintley separately urges us to hold that the websites’ inaccessibility causes a
freestanding informational harm. Set aside the fact that this argument was not raised before the
district court. See In re Morris, 260 F.3d 654, 663 (6th Cir. 2001). And set aside our prior
skepticism about this argument’s premises. See Parker v. Metro. Life Ins. Co., 121 F.3d 1006,
1010 (6th Cir. 1997) (en banc) (holding that “places of public accommodation” must be
“physical”). No matter, the argument does not work on its own terms.

A procedural violation of an informational entitlement does not by itself suffice to keep a
claim in federal court. See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). To
prevail, Brintley would need to allege at least that the information had “some relevance” to her.
Griffin, 912 F.3d at 654; see Carello, 2019 WL 3072152, at *3–4; see also Beaudry v. TeleCheck
Servs., Inc., 579 F.3d 702, 707 (6th Cir. 2009). But nothing in the amended complaint supports
that conclusion.

Brintley persists that the websites offer an “array of services,” such as facility locators
and financial calculators. Appellee’s Br. 25. How, she asks, could such information “not be
useful” to a non-member? Id. We can think of a few answers. Perhaps she had no desire to use
these tools anyway. Perhaps she had no reason to care about their results. Perhaps they
duplicate information elsewhere online. More to the point, Brintley’s question isn’t for us to
answer. She had the burden to allege some real interest in the information. Failing to do so
deprives us of power over the matter.
 Nos. 18-2326/2328 Brintley v. Aeroquip Credit Union et al. Page 6

She argues alternatively that, even if the websites’ information would not have provided
any help to her, it still might have been “useful to share with her friends or family.” Id. at 26.
This argument adds nothing to her last. What information? What friends and family members?
Does she know anyone for whom the websites’ information might have special relevance? We
don’t know. This position merely adds more speculation to the mix.

Brintley adds that the websites’ inaccessibility qualifies as a concrete (if intangible)
dignitary injury under Article III. It’s true that “dignitary harm” and “stigmatic injury” might
give rise to standing in some settings. See Allen v. Wright, 468 U.S. 737, 755 (1984). But to
qualify, a plaintiff can’t simply suffer an “abstract” slight; she must be “personally subject to the
challenged discrimination.” Id. at 755–56. That’s why a “black person in Hawaii” lacks
standing to challenge a “racially discriminatory school in Maine.” Id. at 756. To hold otherwise
would “risk exceeding the judiciary’s limited constitutional mandate” and “interfering with
powers committed to other branches of government.” Am. Legion v. Am. Humanist Ass’n, 139 S.
Ct. 2067, 2099 (2019) (Gorsuch, J., concurring). Mere indignation and mere affront are not
sufficiently particularized injuries under Article III, whether the claimant purports to be a
“tester” or not. See Griffin, 912 F.3d at 653–54; Carello, 2019 WL 3072152, at *2. Otherwise,
any citizen would have had standing to challenge the lawfulness of the bombing of Cambodia in
1973. Cf. Schlesinger v. Holtzman, 414 U.S. 1321, 1321 (1973); see also Holtzman v.
Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973). Or: “anyone who goes to see Asian elephants
in the Bronx zoo” would have standing to sue about a government-funded “project in Sri Lanka.”
Lujan, 504 U.S. at 566. This would reduce standing to an “ingenious academic exercise in the
conceivable.” United States v. SCRAP, 412 U.S. 669, 688 (1973).

Brintley’s injury is simply too attenuated to support standing. The internet is a vast and
often unpleasant place. It contains plenty that may offend, and those who set out looking for
dignitary slights won’t be disappointed. But merely browsing the web, without more, isn’t
enough to satisfy Article III. And whatever that “more” may entail, Brintley doesn’t have it.
Michigan law prevents Brintley from acquiring services from these credit unions, a legal
boundary that makes it “impossible” for her to be “personally subject” to dignitary injury. See
Griffin, 912 F.3d at 654; see also Carello, 2019 WL 30752152, at *2–3.
 Nos. 18-2326/2328 Brintley v. Aeroquip Credit Union et al. Page 7

Hold up, Brintley says. Unlike the hypothetical in Allen, she actually visited the websites
at issue and “personal[ly] encounter[ed]” discrimination. Appellee’s Br. 37 & n.20. True
enough. But not all “encounters” are of a kind. If we adopted Brintley’s theory of encounter
standing, we’d deputize her to sue not just these credit unions but many of the some 5,600 others
in the United States as well. See Credit Union Nat’l Ass’n & Mich. Credit Union League
Amicus Br. 1. Never mind how geographically remote. Never mind how attenuated their
relationship. And if we credit Brintley’s statistics on visual impairment, we’d permit eight
million other Americans to do the same. That’s not the law. Standing aims to prevent the
federal judiciary from becoming a “vehicle for the vindication of the value interests of concerned
bystanders.” SCRAP, 412 U.S. at 687. Those who merely peruse websites that they can’t benefit
from have less in common with bystanders than they do with passersby.

Brintley adds that the Supreme Court has adopted a uniquely “broad view” of standing in
civil rights actions such as this one. Appellee’s Br. 6. Accordingly, she suggests that testers like
her, acting as “private attorneys general,” are entitled to special solicitude in an Article III
standing analysis. Id. at 7. True, courts generally read civil rights statutes to extend statutory
standing to a wide range of parties. See Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 208
(1972). True also, tester status doesn’t have a “negative effect” on a plaintiff’s ability to sue.
See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982). But neither observation gives
Brintley a pass to skip the ordinary constitutional requirements to suing in federal court. See
Havens, 455 U.S. at 374–75; Trafficante, 409 U.S. at 209; see also Mason v. Adams Cty.
Recorder, 901 F.3d 753, 756 (6th Cir. 2018). And if anything, the Supreme Court’s recent
standing jurisprudence has only further “tightened the hatches” on what qualifies as injury in
fact. Vonderhaar v. Village of Evendale, 906 F.3d 397, 401 (6th Cir. 2018); see generally
Spokeo, 136 S. Ct. 1540.

We reverse.
 Nos. 18-2326/2328 Brintley v. Aeroquip Credit Union et al. Page 8

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CONCURRENCE
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HELENE N. WHITE, Circuit Judge, concurring. I concur in the reversal. I write
separately to make clear that my concurrence is based only on Brintley’s failure to sufficiently
allege that the websites contained information or services that she could use, and not on the
proposition that a non-member or non-eligible person is per se unable to challenge the
accessibility of a credit union’s website.