United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2021 Decided December 28, 2021
No. 20-7081
ROBERT WEISSMAN AND PATRICK D. LLEWELLYN,
APPELLANTS
v.
NATIONAL RAILROAD PASSENGER CORPORATION, DOING
BUSINESS AS AMTRAK,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00028)
Nandan M. Joshi argued the cause for appellants. With
him on the briefs were Allison M. Zieve and Scott L. Nelson.
Jessica Ring Amunson argued the cause for appellee. With
her on the brief was Noah B. Bokat-Lindell.
Before: ROGERS and JACKSON, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
2
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Circuit Senior Judge SILBERMAN.
ROGERS, Circuit Judge: Appellants are two individuals
who have traveled on Amtrak in connection with their work
and expect to continue doing so. They sought declaratory and
injunctive relief to prevent Amtrak from imposing an
arbitration requirement on rail passengers and purchasers of
rail tickets. The district court dismissed the complaint, finding
that appellants lacked standing under Article III of the
Constitution. That is the only issue this court need address, and
we affirm because appellants have not plausibly alleged an
actual injury-in-fact and therefore lack Article III standing.
I.
Congress created the National Railroad Passenger
Corporation, commonly known as Amtrak, to provide
passenger rail service to travelers throughout the United States.
See Rail Passenger Service Act of 1970, Pub. L. No. 91-518,
§ 301, 84 Stat. 1327, 1330. Although created by statute,
Amtrak is “a private, for-profit corporation,” Nat’l R.R.
Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470
U.S. 451, 454 (1985), “not a department, agency, or
instrumentality of the United States Government,” 49 U.S.C.
§ 24301(a)(3).
In 2019, Amtrak modified the terms and conditions that
govern its rail service to include, among other things, a
mandatory arbitration provision. The provision “applies to all
claims, disputes, or controversies, past, present, or future, that
otherwise would be resolved in a court of law or before a forum
other than arbitration,” including “claims Amtrak may have
against” a passenger as well as those claims a passenger may
3
have against Amtrak. Amtrak’s Terms and Conditions 14 [JA
85]. Claims “shall be decided by a single arbitrator through
binding arbitration and not by a judge or jury,” and the
arbitrator “shall have exclusive authority to resolve any dispute
relating to the validity, applicability, enforceability,
unconscionability or waiver of” the arbitration agreement. Id.
Robert Weissman, the president of a Washington, D.C.–
based nonprofit organization, and Patrick Llewellyn, a
Washington, D.C.–based attorney, sued Amtrak “to prevent
[Amtrak] from imposing an arbitration requirement on rail
passengers and purchasers of rail tickets,” seeking declaratory
and injunctive relief. Compl. ¶ 1 [JA 4]. They alleged that
Amtrak’s adoption of the arbitration provision was an unlawful
ultra vires action that violated the Petition Clause, Article III,
and separation-of-powers principles of the United States
Constitution. Id. ¶¶ 28–45. Both have traveled on Amtrak
between Washington, D.C. and New York City and expect to
travel on Amtrak again in connection with their work, finding
Amtrak to be a convenient travel option. Id. ¶¶ 7–10;
Weissman Decl. ¶¶ 3–4, 6; Llewellyn Decl. ¶¶ 3–4, 6. They
averred in separate sworn declarations that the arbitration
provision deters them from riding Amtrak in the future.
Weissman Decl. ¶¶ 5–6; Llewellyn Decl. ¶¶ 5–6; see Compl.
¶¶ 8, 10. They wish to travel on Amtrak while retaining “their
right to seek judicial redress,” Compl. ¶ 2, “on an individual
basis or as part of a representative or class action,” for any
claims they might develop against Amtrak, id. ¶¶ 8, 10. They
object to “having to agree in advance to binding arbitration
before a private arbitrator and waiving [their] rights to seek a
judicial remedy . . . for resolution of any claims against
Amtrak.” Id.
The district court granted Amtrak’s motion to dismiss the
complaint for lack of subject-matter jurisdiction, pursuant to
4
Federal Rule of Civil Procedure 12(b)(1). It ruled that
appellants had not plausibly alleged an injury-in-fact because
they had “no claim to arbitrate,” only a “theoretical gripe” with
the speculative risk of future arbitration, Weissman v. Nat’l
R.R. Passenger Corp., No. 20-cv-28, 2020 WL 4432251, at *2
(D.D.C. July 31, 2020), and consequently failed to establish
standing, id. at *3. This appeal followed.
II.
“Under any theory, ‘the irreducible constitutional
minimum of standing contains three elements’: (1) the plaintiff
must have suffered an ‘injury in fact’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or
hypothetical’; (2) there must exist ‘a causal connection
between the injury and the conduct complained of’; and (3) it
must be ‘likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.’” Friends of
Animals v. Jewell, 828 F.3d 989, 991–92 (D.C. Cir. 2016)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992)). A party seeking prospective declaratory and
injunctive relief “must establish an ongoing or future injury
that is ‘certainly impending’” and “may not rest on past injury.”
Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (quoting
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)); accord
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409–10 (2013).
These jurisdictional prerequisites are designed to “protect[]
democratic government by requiring citizens to express their
generalized dissatisfaction with government policy through the
Constitution’s representative institutions, not the courts.”
Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275,
1278–79 (D.C. Cir. 2012).
In determining, upon de novo review, Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015),
5
whether a party has standing, this court “must ‘assume that on
the merits [the plaintiff] would be successful in [the stated]
claims,’” Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106
(D.C. Cir. 2008) (quoting City of Waukesha v. EPA, 320 F.3d
228, 235 (D.C. Cir. 2003)).
Appellants contend that the district court erred in ruling
they have not suffered actual injury because Amtrak’s new
terms of service prevent them from purchasing tickets on the
terms they would prefer. They have not sought to establish
standing on the basis of imminent future injury. Reply Br. 25.
Instead, they maintain that they suffer ongoing injury because
purchasing a ticket with an arbitration clause “strips [them] of
the ability to determine for themselves the level of risk to
accept when deciding whether to enter into a commercial
transaction” and they “desire not to take on any risk of
arbitration as a condition to purchasing rail travel.”
Appellants’ Br. 23 (emphasis added). They rely on this court’s
precedent that consumers have standing to challenge
government action that “prevented the consumers from
purchasing a desired product.” Coal. for Mercury-Free Drugs,
671 F.3d at 1281; see Appellants’ Br. 16–20; Reply Br. 9–14.
Their reliance is misplaced.
In a series of cases conducting arbitrary-and-capricious
review under the Administrative Procedure Act (“APA”) or its
agency-specific equivalents, this court has held that the lost
opportunity to purchase a desired product constituted an injury-
in-fact sufficient to confer Article III standing. Coal. for
Mercury-Free Drugs, 671 F.3d at 1281; see Orangeburg v.
FERC, 862 F.3d 1071, 1077–78 (D.C. Cir. 2017); Chamber of
Com. v. SEC, 412 F.3d 133, 138 (D.C. Cir. 2005); Consumer
Fed’n of Am. v. FCC, 348 F.3d 1009, 1012 (D.C. Cir. 2003);
Competitive Enter. Inst. v. Nat’l Highway Traffic Safety
Admin., 901 F.2d 107, 112–13 (D.C. Cir. 1990); Ctr. for Auto
6
Safety v. Nat’l Highway Traffic Safety Admin., 793 F.2d 1322,
1324 (D.C. Cir. 1986); Cmty. Nutrition Inst. v. Block, 698 F.2d
1239, 1246–47 (D.C. Cir. 1983), rev’d on other grounds,
467 U.S. 340 (1984). In each case, the court analyzed the
injury-in-fact requirement by considering whether government
action had meaningfully abridged a concrete interest of the
plaintiff in accessing the desired product. That inquiry has
focused on two considerations: whether the challenged action
made a consumer’s desired product, as defined by its core
features, “not readily available,” and whether it rendered the
product “unreasonably priced.” Coal. for Mercury-Free
Drugs, 671 F.3d at 1282.
As to price, several cases concerned government action
that cost the consumer money, a traditional economic injury.
For example, in Orangeburg v. FERC, 862 F.3d 1071 (D.C.
Cir. 2017), the court held that the City of Orangeburg suffered
an injury-in-fact because agency action enabled the North
Carolina Utilities Commission to prevent the City from
purchasing wholesale power, id. at 1074–76, whereby the City
was limited to buying power as a retail customer, a difference
that annually cost the City ten million dollars, id. at 1078.
Similarly, in Chamber of Commerce v. SEC, 412 F.3d 133
(D.C. Cir. 2005), a Commission rule required that mutual funds
maintain a Board of Directors with at least 75% independent
directors and an independent chair, id. at 136. The Chamber of
Commerce challenged the rule, alleging that it wished to
continue to invest in funds that either were chaired by
management or did not meet the 75% criterion. Id. at 138. The
court acknowledged that the rule’s potential impact on the
performance of funds and the availability of shares produced
an injury-in-fact. Id. at 137; see also Chamber of Com. v. SEC,
443 F.3d 890, 896–97 (D.C. Cir. 2006). And in Coalition for
Mercury-Free Drugs v. Sebelius, 671 F.3d 1275 (D.C. Cir.
2012), where an advocacy group challenged the Food and Drug
7
Administration’s approval of thimerosal-preserved vaccines,
the court acknowledged that the consumer-plaintiffs could
have standing if the availability of those vaccines made them
“unreasonably priced,” but concluded that the allegations of an
impact on price were insufficient as any slight difference in
price did not necessarily establish that the price was
unreasonable, id. at 1282–83.
As to non-economic concrete harms resulting from a
product’s unavailability, the court found standing in Consumer
Federation of America v. FCC, 348 F.3d 1009 (D.C. Cir.
2003). There, the Commission’s approval of the AT&T–Time
Warner merger, although having no substantiated impact on
cost, meant the petitioner as a consumer was allegedly left
without access to a cable internet package with certain
desirable features — a choice of internet service provider and
unrestricted streaming content, id. at 1012. The desired
product of cable internet with unrestricted content was
therefore unavailable. Id. Likewise, the court held that
consumers had standing to challenge agency action that
restricted their opportunity to buy fuel-efficient vehicles, Ctr.
for Auto Safety, 793 F.2d at 1332, and their opportunity to buy
“larger passenger vehicles,” Competitive Enter. Inst., 901 F.2d
at 112. In Coalition for Mercury-Free Drugs, the court
explained that the plaintiffs had not adequately alleged that
thimerosal-free vaccines were “not readily available” so as to
support standing. 671 F.3d at 1282.
As Amtrak points out, this court has assumed that the lost
opportunity to purchase a desired product confers standing only
in the context of a challenge to government action under the
APA. Even assuming that the desired-products theory could
apply beyond that context, appellants misconceive the desired-
products precedent.
8
Appellants maintain that, like the consumers in Consumer
Federation of America, they are prevented from purchasing
their desired product because an Amtrak rail ticket without an
arbitration clause is no longer on the market as a result of
Amtrak’s new term of service. In their view, their claim is akin
to the cases where government action made a consumer’s
desired product altogether unavailable. In those cases,
however, the product at issue was differentiated from available
alternatives by its core features. The consumers defined their
desired product at a reasonable level of generality, tying the
product to a concrete, cognizable interest, such as the ability to
purchase vaccines without certain ingredients, a cable internet
package without content restrictions, or cars of a certain size.
So too in the cases in which consumers alleged an impact on
cost: the loss of money was a concrete, traditional kind of
Article III harm. Whether the harm alleged was economic or
non-economic, these cases thus presented a concrete
impairment of a protected interest.
By contrast, appellants’ desired product is only
distinguished from the available alternative by an ancillary
term: the arbitration provision. They have simply reframed a
general objection to mandatory arbitration as a lost opportunity
to purchase a desired product. But the desired-products theory
does not itself supply the ingredients of standing that a plaintiff
must allege. The court’s desired-products precedent represents
a species of, not a substitute for, injury-in-fact, one of the basic
requirements of Article III standing. See Friends of Animals,
828 F.3d at 991–92. Consumers proceeding on a desired-
products theory must still allege a concrete invasion of a
cognizable interest, and appellants have failed to do so.
Appellants’ allegations do not demonstrate how any harm from
the mere existence of this ancillary term of service is “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S.
9
at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155
(1990)).
Challenges to arbitration provisions in the absence of an
actual arbitrable dispute (or the imminent prospect of such a
dispute developing) are usually deemed nonjusticiable. See,
e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019–20
(1984); Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331,
1340 (11th Cir. 2000); Bd. of Trade v. Commodity Futures
Trading Comm’n, 704 F.2d 929, 932 (7th Cir. 1983). While
appellants maintain that this line of cases concerns parties who
were already bound by arbitration provisions, whereas they
claim injury as a result of the inability to avoid entering into
such an agreement to begin with, their status as prospective
customers makes their asserted injury more, not less,
speculative. See Weissman, 2020 WL 4432251, at *2 n.2. Nor
does appellants’ focus on their preference for certain “terms”
solve their concreteness problem. Appellants’ Br. 38–39; Oral
Arg. Tr. at 7–8 (Sept. 24, 2021). The court’s desired-products
precedent looks to the products themselves, not the terms on
which consumers must deal with sellers. A change in product
terms establishes standing on a desired-products theory only
insofar as it amounts to concrete harm, as in Orangeburg,
where the City’s inability to “purchase wholesale power on its
desired terms” substantially increased the product’s cost, 862
F.3d at 1077.
The Supreme Court has drawn similar distinctions,
holding that the justiciability of a challenge to government
action depends on, among other things, the nature of the
conduct affected. Impositions on “day-to-day business,”
especially those that may incur significant cost, see Abbott
Lab’ys v. Gardner, 387 U.S. 136, 152–53 (1967), are ripe for
challenge sooner than those that do not affect such “primary
conduct,” see Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.
10
158, 164 (1967). That ripeness analysis “bears close affinity”
to the question of standing. Warth v. Seldin, 422 U.S. 490, 499
n.10 (1975). Similarly, in the desired-products context,
government action that makes fuel-efficient cars difficult to
obtain affects a “primary,” concrete consumer interest. See
Ctr. for Auto Safety, 793 F.2d at 1332. By contrast, for
example, government action that makes it more difficult to buy
a car in a transaction governed by a certain choice-of-law
provision affects only ancillary consumer interests resting on a
“speculative chain of possibilities,” Clapper, 568 U.S. at 414.
Some impacts on desired products are too insignificant to
produce Article III harm. For example, in Coalition for
Mercury-Free Drugs this court explained that even if the
consumers had adequately alleged a price differential between
thimerosal-free and thimerosal-preserved vaccines, “the price
differential might be sufficiently small as to have little effect
on the vaccine’s affordability for the average person.”
671 F.3d at 1283.
Therefore, appellants have adequately alleged a
“primary,” concrete consumer interest in traveling on Amtrak,
but not in purchasing an Amtrak ticket without an arbitration
provision. Although they object that the court is “redefining”
their injury at a higher level of generality, observing the court
has previously taken consumers’ own definitions of their
desired products, Appellants’ Br. 14–15, those definitions were
tied to concrete, cognizable interests, not merely to ancillary
and speculative interests. Even assuming that there may be
“some play in the joints in selecting the right level of
generality” at which to conduct the standing inquiry, that
“inevitable imprecision is not an excuse for whimsy.” Jerome
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 542 (1995). Appellants’ approach would contrive
standing simply by redefining any sweeping “gripe” as the
inability to obtain a product that negates that “gripe,” which
11
would contravene a central purpose of Article III standing
doctrine to channel “generalized dissatisfaction with
government policy” into the political process, not the courts,
Coal. for Mercury-Free Drugs, 671 F.3d at 1278.
Appellants protest that the court must accept their asserted
interest at face value because “the inability of consumers to buy
a desired product may constitute injury-in-fact ‘even if they
could ameliorate the injury by purchasing some alternative
product.’” Consumer Fed’n of Am., 348 F.3d at 1012 (quoting
Cmty. Nutrition Inst., 698 F.2d at 1247); Reply Br. 9–10. Even
so, consumers must offer a concrete grounding for their claims,
like the consumers in Competitive Enterprise Institute v.
National Highway Traffic Safety Administration, 901 F.2d 107
(D.C. Cir. 1990), who preferred larger cars “for reasons of
safety, comfort, and performance,” id. at 112–13. No more or
less is required than an injury that is “concrete and
particularized” and “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Lujan, 504 U.S. at 560 (quoting Whitmore,
495 U.S. at 155).
Appellants rely on Bowen v. First Family Financial
Services, Inc., 233 F.3d 1331 (11th Cir. 2000). There, in view
of allegations of unlawful discrimination under the Equal
Credit Opportunity Act, 15 U.S.C. § 1691(a), the court held
that consumers had standing to “challenge the legality” of a
lender’s “requirement that [they] sign arbitration agreements as
a condition of credit,” Bowen, 233 F.3d at 1334. Unlike
appellants, the consumers’ injury was not premised solely on
the desire not to be bound by an arbitration agreement, but on
the concrete harm peculiar to the statutory scheme of being
discriminated against on the basis of their desire not to be
bound by an arbitration agreement. Bowen, therefore, sheds
little light on the asserted injury here, which has no element of
discrimination.
12
Appellants’ unbounded expansion of the desired-products
theory, then, would circumvent much of modern standing
doctrine, allowing abstract and speculative interests to find a
footing for standing merely by reframing their injury as a lost
opportunity to purchase a product. Here, appellants assert only
one cognizable interest, the interest in purchasing tickets to
travel by rail. Amtrak’s new term of service has not
meaningfully abridged that interest. Appellants therefore have
not alleged ongoing injury.
Accordingly, because appellants allege neither ongoing
nor imminent future injury, they lack Article III standing to
seek declaratory and injunctive relief, and the court affirms the
dismissal of their complaint.
SILBERMAN, Senior Circuit Judge, concurring: I concur in
the majority’s opinion. I write separately because I think
Appellants’ claim can be disposed of rather simply.
I start with the proposition that virtually every court to
encounter a challenge to an arbitration clause has held: a
challenger lacks standing unless and until an incident gives rise
to a plaintiff’s claim and a defendant invokes the arbitration
clause. Supra at 9 (collecting cases).
Appellants seek to avoid this jurisdictional snare by
asserting that they suffer a present injury because the product
Amtrak offers, passage by rail, has been altered by inclusion of
an arbitration clause. Appellants’ Br. 23. Appellants argue that
we should therefore treat their claim as we would treat a
government regulatory change to an offered product.
Appellants are entitled to credit for ingenuity, but applying
a little thought, their claim falls apart like a wet paper towel. It
runs afoul of a fundamental and undeniable proposition; the
change complained of has to itself create an injury in fact. And
that simply brings us back to the point I started with: an
arbitration clause cannot cause injury in fact until it is invoked.
As the majority points out, the cases involving a changed
product that Appellants cite are all cases in which the change
itself caused a concrete injury, such as an increase in the price
of the product. The majority also notes the relevance of Toilet
Goods Ass’n, Inc. v. Gardner, 387 U.S. 158 (1967), which,
although based on ripeness, is equally applicable to standing
analysis. There, a regulation governing the sale of certain
products also included an ancillary procedure for government
inspections. Id. Ancillary characteristics of a product, if
challenged, must have an immediate effect and of course must
not be trivial to constitute injury in fact. Like the arbitration
clause here, the inspection procedure was not immediate, and
2
it was even uncertain what position the Commissioner would
take. Id.
Counsel for Appellants, in an effort to slip around these
barriers to standing, asserted at one point at oral argument that
the present harm was based on a legal risk that Appellants
would not eventually be able to challenge the arbitration clause.
When asked to explain, counsel responded that it could be
claimed that by buying the ticket Appellants “waived” their
right to subsequently challenge the arbitration clause. That led
the court to ask counsel for Amtrak whether it would ever take
such a position. Counsel disclaimed, in open court, that it
would do so. Of course, that would eliminate the Article III
controversy. (This exchange shows the importance of oral
argument.) With the court’s help, counsel for Appellants
retreated to his naked altered product theory—that Appellants’
injury was, as initially stated, the inability to purchase an
Amtrak ticket without an arbitration provision. Oral Arg.
Transcript at 41:12–42:21.
But that just brought Appellants back to their basic
problem. They simply abandoned one jurisdictional pothole
for another.