Ozie Bowen, on Behalf of Himself and All Others Similarly Situated v. First Family Financial Services, Inc.

WATSON, Circuit Judge,

concurring in the result.

Much of today’s majority opinion is correct, and I concur with the discussion and conclusion under Part II B that plaintiffs-appellants (“plaintiffs”) lack standing to challenge the enforceability of First Family’s arbitration agreement. Further, I also concur with the majority’s decision to affirm the district court’s dismissal of *1342plaintiffs’ Equal Credit Opportunity Act (“ECOA”) claim, but not the majority’s holding that plaintiffs have standing with respect to that claim. Accordingly, as to Part II A of the majority’s opinion, I concur only in the result.

Unlike the majority’s detailed standing analysis of plaintiffs’ “Unenforceability Claim” under Part II B, in which I concur, the majority’s discussion of plaintiffs’ standing with respect to “The ECOA Claim” under Part II A is quite scant and states only: “the plaintiffs have standing to challenge the legality of First Family’s requirement that customers sign arbitration agreements as a condition of credit, because they were required to and did sign such an agreement in order to obtain credit from First Family.” I disagree.

In Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), the Supreme Court held that “an injury arising from discrimination ‘accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.’ ” I am unable to see how plaintiffs acquired standing with respect to their ECOA claim merely on the basis of the slender reed relied on by the majority. There is no suggestion whatever by the allegations of plaintiffs’ complaint that First Family denied consumers equal treatment in requiring consumers to arbitrate disputes arising from the extension of credit. Similarly, the majority recognizes that “to establish the discrimination element of a § 1691(a)(3) it may be necessary for plaintiff to show either that the creditor refused to extend credit to the applicant or that it extended credit but on less favorable terms.” However, here, there is no allegation either that plaintiffs were denied credit or that they were extended terms less favorable than those offered to other applicants for loans.

Apart from the absence in the complaint of any allegation of disparate treatment, also fatal to plaintiffs’ standing with respect to their ECOA claim is the requirement of a “causal connection,” as articulated by the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs have not alleged any causal connection between some asserted discriminatory conduct {e.g., disparate treatment of consumers) by First Family and the claimed injury {e.g., ostensibly, by being required to agree to arbitration). As recognized by the majority, the Supreme Court in International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 77, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991), held that “standing is gauged by the specific common-law, statutory, or constitutional claims that a party presents. Typically, ... the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Tulane Educ. Fund, 500 U.S. at 77, 111 S.Ct. 1700 (Emphasis in original). The Court has always insisted on strict compliance with this jurisdictional standing requirement. Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).

Accordingly, I conclude that since plaintiffs have not alleged inter alia, any denial of equal treatment or causal connection, for purposes of their claim under § 1691(a)(3), plaintiffs have not alleged either that they suffered any actual or imminent injury cognizable under § 1691(a)(3), or there is any causal connection between the creditor’s alleged unlawful conduct {e.g., disparate treatment of consumers) and an injury {e.g., ostensibly, by being required to agree to arbitration). For purposes of their discrimination claim under § 1691(a)(3), the standing requirements of injury and causal connection are not satisfied simply by plaintiffs’ bald and broad brush stroke allegation that First Family violated § 1691(a)(3), or by plaintiffs’ allegation that they were required to agree to arbitration of disputes with First Family.

*1343For the foregoing reasons, I believe that the majority opinion mistakenly concludes that plaintiffs have met the constitutional minimum requirements necessary to establish standing for an ECOA claim under § 1691(a)(8). Consequently, the required federal jurisdictional foundation of a “case” or “controversy” mandated by Article III of the Constitution, which the majority finds lacking with respect to the enforceability claim under Part II B, is also lacking with respect to plaintiffs ECOA claim addressed by the majority in Part II A.

Moreover, even assuming arguendo that plaintiffs have standing under § 1691(a)(8) simply because they were required to and did sign the arbitration agreement, and further assuming that the waivability of plaintiffs’ right to judicial redress of TILA claims is somehow relevant to the discrimination claim, in my view, the waivability issue is not ripe for judicial resolution for essentially the same reasons advanced by the majority for not reaching the enforceability claim. As does the majority, I recognize that in advancing their discrimination claim under § 1691(a)(8) of the ECOA, “an initial premise of plaintiffs’ argument in this ease is that the TILA grants consumers a non-waivable right to litigate, individually and through class action, any claims under the statute,” and that “plaintiffs maintain that the right to litigate TILA claims is prospectively waived by the arbitration agreements that First Family requires credit applicants to sign.” The majority discusses the waiva-bility issue at length, but then expressly declines to reach the issue of whether an agreement to arbitrate is enforceable.

I believe that the waivability of the right to judicial redress under TILA is reciprocally and inextricably intertwined with, and indeed, is contingent upon an enforceable alternative dispute resolution mechanism, such as arbitration.1 Indeed, a conclusion that judicial redress of TILA claims is not non-waivable subsumes enforceable alternative dispute resolution, and the latter subsumes the waivability of the right to judicial redress.

I agree with the majority’s reasoning and conclusion in Part II B that plaintiffs do not have standing to raise the “Unen-forceability Claim” unless and until the creditor seeks to enforce the arbitration agreement. As also noted in the majority opinion, note 7, “[wjhether viewed as a problem of standing or ripeness, the result in this case is that, at this point, the speculative possibility that the arbitration agreement may be enforced against the plaintiffs is too uncertain to present a constitutional ‘case or controversy’ with respect to the enforceability of that agreement.” As I have concluded that waiva-bility and enforceability are reciprocally and inextricably linked, the issue of whether plaintiffs have a non-waivable right to judicial redress is not ripe for adjudication and must await their standing to litigate the enforceability issue, viz., if and when the creditor invokes the arbitration provision.

. If the right of judicial redress of TILA claims is "not non-waivable” (viz., waivable), then a fortiori under the Consumer Credit Protection Act, some alternative means of dispute resolution must be available to satisfy the Act’s underlying purpose of affording a means for consumers to resolve TILA claims. Generally, arbitration is encouraged to resolve disputes arising under the Acts or provisions of federal law, but I agree with the majority that the issue of enforceability of arbitration agreements should not be reached in this case for lack of standing by plaintiffs.