Seyfarth Synopsis: As reported here, for the two-year anniversary of the U.S. Supreme Court’s rulings regarding Article III standing in TransUnion LLC v. Ramirez (“TransUnion”), the Workplace Class Action blog is providing a survey of how each of the federal Circuit Courts have applied the Supreme Court’s teachings. In our prior installment, we analyzed how the First, Second, Third, and Fourth Circuit Courts of Appeals have interpreted TransUnion. Now, we discuss rulings from the Fifth, Sixth, Seventh, and Eighth Circuits that employers should keep in mind.
TransUnion at a Glance
In TransUnion, the Supreme Court reinforced that Article III standing requires a “concrete harm,” even when there is a statutory violation, and that “an injury in law is not an injury in fact.” In addition, the Supreme Court held that plaintiffs must demonstrate standing with respect to each claim asserted and each form of relief they seek (e.g., injunctive relief and damages).
The Fifth Circuit’s Analysis
Braidwood Management, Inc. v. Equal Employment Opportunity Commission
In a twist, it was employers that filed the class action lawsuit in Braidwood Management, Inc., seeking a declaratory judgment that the EEOC’s guidance interpreting statutory prohibitions on sex discrimination to include sexual orientation and gender identity violated the First Amendment and Religious Freedom Restoration Act and that Title VII did not prohibit discrimination against bisexual employees or sex-neutral rules of conduct that exclude practicing gay, lesbian, and transgender individuals from employment. On summary judgment, the U.S. District Court for the Northern District of Texas ruled the employers had standing to bring the action.
The Court’s Decision
On appeal, the U.S. Court of Appeals for the Fifth Circuit analyzed whether the alleged “injury” to the employers was sufficiently “concrete and particularized” and “actual or imminent” such that they had standing to bring suit against the EEOC. This was a close question because the EEOC took no enforcement action against the employers, and the employers did not allege that there were any applicants or current employees engaged in the type of behavior they considered to be objectionable. In its analysis, the court found that the employers could demonstrate a cognizable injury in a pre-enforcement challenge only if they established that: (1) they had an intention to engage in a course of conduct arguably affected with a constitutional interest and proscribed by statute; and (2) there was a credible threat of prosecution. The court held the employers had standing because their policies facially violated the EEOC’s guidance, the EEOC refused to declare that it would not enforce Title VII against them, and the EEOC had brought an enforcement action against a similar violator.
The Sixth Circuit’s Analysis
Simpson-Vlach v. Michigan Department of Education
In Simpson-Vlach, parents of children with disabilities alleged that the defendants, state and local education agencies and agency employees, violated the Individuals with Disabilities Act and Americans with Disabilities Act when schools switched to remote instruction during the Covid-19 pandemic. The plaintiffs sought declaratory and injunctive relief on behalf of a putative class, including the appointment of special monitors to make recommendations regarding compensatory education, for example. The U.S. District Court for the Eastern District of Michigan dismissed the case, finding that the plaintiffs lacked standing, and the plaintiffs appealed.
The Court’s Decision
The Sixth Circuit affirmed. Citing TransUnion, the court emphasized that the relief sought must redress the harm alleged. The court also noted that a potential class representative must demonstrate individual standing vis-à-vis the defendant and cannot acquire standing merely by bringing a class action. Since the plaintiffs sought declaratory and injunctive relief, they accordingly were required to plead either a future injury that is “certainly impending” or presents a “substantial risk of occurrence” or a past injury that presents “continuing, present adverse effects.” The court held the plaintiffs failed to properly allege such harm resulting from the prior switch to remote instruction because they did not allege ongoing impact by the defendant’s conduct. Further, their allegations with respect to potential future harm were too general to establish that the threatened injury was “certainly impending,” rather than merely possible.
The Seventh Circuit’s Analysis
Helbachs Café LLC v. City of Madison
In Helbachs Café LLC, the plaintiff brought suit under 42 U.S.C. § 1983, claiming that the defendant city and county retaliated against it in violation of the First Amendment for posting a sign protesting the public health department’s Covid-19 mask mandate. The U.S. District Court for the Western District of Wisconsin granted summary judgment for the defendants, and the plaintiff appealed.
The Court’s Decision
Before it could determine the substantive outcome of the case, the Seventh Circuit had to address standing, stating that a concrete injury must be more than a bare claim that a statutory violation occurred. The court also observed, however, that the U.S. Supreme Court has not addressed whether, if the asserted violation is an act of retaliation, that act alone would be a sufficiently concrete injury-in-fact. The court noted that Justice Thomas’s dissent in TransUnion suggests that it would be, reasoning that where a law recognizes a private right, a plaintiff asserting a violation of that right need not separately allege harm from that violation to have standing because the offending act imports a harm to the party. Ultimately, the court determined that it need not decide this question because the record indicated that the plaintiff suffered additional concrete injury (loss of its lease), thereby conferring standing. As such, whether an act of retaliation alone would be a sufficiently concrete injury-in-fact remains an open question in the Seventh Circuit, and one that employers should watch.
The Eighth Circuit’s Analysis
Ojogwu v. Rodenburg Law Firm
Under the Fair Debt Collection Practices Act (“FDCPA”), a debt collector must have the consent of the consumer or a court with jurisdiction to communicate directly with the consumer in connection with the collection of any debt. In Oiogwu, the plaintiff consumer debtor filed suit after a judgment creditor mailed a garnishment summons of a judgment to him directly without his consent. The U.S. District Court for the District of Minnesota entered judgment for the plaintiff and awarded him damages and fees, and the defendant creditor appealed.
The Court’s Decision
The U.S. Court of Appeals for the Eighth Circuit reversed and remanded with directions to dismiss the complaint because the plaintiff lacked standing. The court concluded that the alleged violation of the FDCPA—the defendant’s transmittal of a copy of a garnishment summons—did not cause tangible injury to the consumer. The plaintiff’s receipt of the summons did not impose a tangible obligation on him that constituted a concrete, particularized, actual, or imminent injury as the U.S. Supreme Court explained in TransUnion is required for standing. Rather, the court held that the plaintiff’s alleged “damages in the form of fear of answering the telephone, nervousness, restlessness, irritability, [and] other negative emotions” constituted intangible injuries that were insufficient to establish a concrete injury in fact. Indeed, the court reasoned that the mailing benefited the debtor by giving him timely notice and an opportunity to claim an exemption or satisfy the garnishment.
Implications For Employers
Companies should be aware of the growing body of law regarding standing in the wake of TransUnion. Simpson-Vlach and Oiogwu provide insights into the potential defenses employers may assert, including when defending large scale litigation. Plaintiffs must establish a concrete injury-in-fact, and they must establish standing for each form of relief they seek. On the other hand, Braidwood Management, Inc. is an example of employers demonstrating standing while on the offensive. Finally, employers should keep an eye on further developments regarding the question that the Seventh Circuit pondered in Helbachs Café LLC of whether retaliation by itself can constitute a sufficiently concrete injury to confer standing.