by Kelsi White
Standing: This quarter, the Fifth Circuit issued a handful of standing decisions analyzing the impact of TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), on Fifth Circuit precedent. Anyone looking at moving to dismiss for lack of standing should do some refresher research on the state of the law, as the Fifth Circuit has been active on this issue.
Environment Texas Citizen Lobby, et al. v. ExxonMobil Corporation, et al., No. 17-20545
The Fifth Circuit considered this citizens’ suit under the Clean Air Act for the third time. The appeal involved the two citizen organizations’ standing to complain of injuries due to Exxon’s permit violations over a span of years. The Fifth Circuit re-affirms the approach to standing it outlined in the second appeal in this case, which found injury-in-fact existed but required the district court to make factual findings about traceability. The Fifth Circuit rejected Exxon’s argument that the United States Supreme Court’s decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), altered the Fifth Circuit’s analysis of the injury-in-fact requirement for standing.
In TransUnion, the Supreme Court held that certain consumers did not have standing under Article III against a credit reporting agency for inaccurate credit files because those inaccurate credit files were never provided to any third party. The mere fact of misleading information in the files, without publication, was not a concrete harm that was “traditionally recognized as providing a basis for a lawsuit in American courts.” Id. at 2209-10. According to the Fifth Circuit, TransUnion merely reaffirmed that a violation of federal law on its own does not create Article III standing and supported the Fifth Circuit’s injury-in-fact analysis in the second appeal in this case.
Turning to traceability, the Fifth Circuit rejected Exxon’s argument that traceability required but-for causation. While but-for causation is sufficient to show traceability, it is not required under precedent from the Fifth Circuit, other Circuits, and the Supreme Court.
The Fifth Circuit then considered the district court’s application of the traceability test and affirmed the district court’s “detailed and rigorous” fact-finding on traceability. The Fifth Circuit also affirmed a penalty assessment of $14.25 million.
The opinion drew a dissent from Judge Oldham, who would have not found standing for a lack of traceability for each individual violation and criticized the majority for applying “standing in gross” in violation of TransUnion. Judge Oldham’s dissent called on the en banc court to consider the case.
Perez v. McCreary, Veselka, Bragg & Allen, P.C., et al., No. 21-50958
In another standing decision, the Fifth Circuit decided that a plaintiff bringing a class action against a debt-collection firm did not have standing. The plaintiff claimed that the debt-collection firm violated the Fair Debt Collection Practices Act by sending her a demand for payment on a debt that was time-barred under Texas law and sought to represent a class of Texas consumers who received the same letter for time-barred debts. Her alleged injury-in-fact was the risk of harm she might have paid the debt; that she was misled and confused; and that she had to consult an attorney.
The Fifth Circuit rejected any of these alleged injuries as sufficient for standing. The Fifth Circuit relied on TransUnion’s focus on whether the purported injury has a “close relationship” to the kinds of harms traditionally recognized as giving a basis for a lawsuit in American courts. Importantly, a bare procedural violation still requires a concrete injury for Article III standing. And a plaintiff cannot point to a risk of harm that has not materialized, i.e., the risk that she may have paid the time-barred debt, to establish standing. Instead, the risk must have materialized or caused some other injury-in-fact, such as emotional distress. As for the plaintiff’s argument that the letter confused her, the Fifth Circuit decided that it was not the same harm “in kind” that provides a basis for a lawsuit: “the state of confusion, absent more, is not a concrete injury under Article III.” Finally, her loss of time consulting a lawyer was not the kind of harm for which there was a “common-law analog” that historically provided a basis for a lawsuit in American courts.
As for the plaintiff’s standing for her declaratory-relief claim, the Fifth Circuit held she was not currently facing a material risk of financial harm. The risk was in the past, not imminent, precluding her standing.
Note that the defendant had not raised standing on appeal, and instead the Fifth Circuit sua sponte directed the parties to be prepared to discuss it at oral argument.
E.T. v. Kenneth Paxton, No. 21-51083
A school district sued to enjoin Governor Greg Abbott’s executive order prohibiting school districts from imposing mask mandates. The district court agreed with the school district and enjoined enforcement of the executive order after a bench trial. On appeal, the Fifth Circuit dismissed the case for lack of subject matter jurisdiction because the plaintiffs (children with disabilities) lacked standing. They had not suffered an injury-in-fact. The Fifth Circuit reasoned that the alleged injury of an increased risk of contracting COVID-19 was not sufficient because the Fifth Circuit does not recognize the concept of “probabilistic standing based on a non-particularized increased risk,” i.e., one that equally affects everyone.
The Fifth Circuit then turned to the district court’s framing of the injury as a deprivation of reasonable access to in-person schooling that was more significant than the deprivation faced by the children’s non-disabled peers. The Fifth Circuit first held that this argument was forfeited; that the court must consider the actual injury, not their artful framing of it; that the plaintiffs incorrectly presumed that “reasonable access” must be equal across groups, contrary to the ADA; and that the plaintiffs never requested an accommodation from their schools.
The Fifth Circuit further held that the plaintiffs could not establish traceability, particularly because some of their school districts refused to eliminate mask mandates even after the executive order was issued.
Judge Davis dissented, reasoning that the plaintiffs had brought a disability discrimination case for which they established standing, not a simply “fear of COVID-19” case.
Pleadings/Procedure: Bye v. MGM Resorts International Inc., d/b/a Beau Rivage Resort and Casino, No. 22-60034
The plaintiff was a working mother who sued under Title VII for pregnancy discrimination, constructive discharge, and a hostile work environment. The district court granted summary judgment, and on appeal she argued that her pleading also sufficiently pled a claim under the FLSA and its right to lactation breaks, which the district court refused to consider. The Fifth Circuit affirmed in full. The panel’s analysis of the Title VII claims is straightforward, but the analysis of the FLSA claim is noteworthy and drew a dissent from Judge Ho.
The plaintiff first raised her FLSA claim explicitly in response to the motion for summary judgment, which the Fifth Circuit notes was untimely under precedent. But the plaintiff relied on the Supreme Court’s decision in Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014), to argue that she had alleged a FLSA claim factually, even if she did not cite the specific provision of FLSA in her complaint. The panel decided that Johnson was inapposite because the complaint in Johnson “left no room for doubt” that the claim was under Section 1983, even though the statute was never cited. Here, the panel reasoned, the factual allegations fell under Title VII. The panel decided that the district court was within its discretion to deny the plaintiff the right to amend her complaint to add a FLSA claim.
Judge Ho dissented as to the FLSA claim and found the case governed by Johnson. The complaint alleged all the facts necessary to support a claim for withheld lactation breaks under the FLSA. Johnson’s emphasis is on whether the factual basis for the claim has been pled, and it was here, according to Judge Ho. The district court’s framing of the plaintiff’s position as trying to belatedly add a new claim was incorrect. The district court should have considered the FLSA claim on the merits.