On January 3, 2019, the Fourth Circuit ruled that plaintiff suing a credit union over website’s lack of compliance with ADA (American with Disabilities Act) does not have standing if plaintiff is not a customer and is barred by law from becoming one (Clarence Griffin v. Department of Labor Federal Credit Union). Plaintiff Clarence Griffith, a blind resident of Virginia, uses a screen reader (i.e. a software that reads aloud the text that appears on websites) to access the internet. Special precautions must be taken in websites to ensure the reader can properly work. Plaintiff tried to access Defendant’s website in October of 2017 and could not do it properly because allegedly the website was not ADA compliant. Defendant is Department of Labor Federal Credit Union, a federal credit union that, “under the Federal Credit Union Act of 1934, accepts as members only those who share the ‘common bond’ of being current and former employees of the Department of Labor and their immediate families and households.” Plaintiff is not eligible for membership in the Credit Union.^[i] Plaintiff sued Defendant – seeking injunctive relief, costs and attorney’s fees  – over Defendant’s failure “to make reasonable modifications to its policies and practices that would make its site accessible to the disabled” (Griffin at 4) which would violate the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. The district court (US District Court for the Eastern District of Virginia) dismissed the action for lack of standing and plaintiff appealed. On January 3, 2019, the Fourth Circuit affirmed. The Court found that it only needed to answer a narrow question^[ii]i.e. “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”. It answered that he could not. The reasoning of the Court is rooted in the Constitution: a court could only decide “cases” and “controversies” (Article III of the Constitution). As the Supreme Court clarified in Spokeo, Inc. v. Robins (136 S. Ct. 1540, (2016)) “[a]n injury in fact is an indispensable aspect of constitutional standing; no “Case” or “Controvers[y]” exists without injury. …” Griffin at 5 (internal quotation and citations omitted). And also: “[A] wrong … is only an injury in fact if it is sufficiently concrete and particularized. …” Id. In addition: “[W]hen a party seeks injunctive relief … there is the additional requirement of a “real or immediate threat” that the party will suffer an injury in the future.” Griffinat 5 and 6 (internal quotation and citations omitted). Therefore, to survive a motion to dismiss, Plaintiff should allege an “injury that is concrete, particularized, and immediately threatening.” Id. at 6 The Fourth Circuit found that he has not. The Court found that Plaintiff’s injury was not “concrete” Id. at 6. To be  “concrete”, an injury must be “real and not abstract.” (Id., citing Spokeo136 S. Ct. at 1548). While as “dignitary harm” like the one alleged here could qualify as a real injury, “the legal barriers between Griffin and the Credit Union render his injury abstract” Id. at 7. In fact, this particular Plaintiff was not and could never become a customer because federal law prohibited the Union from providing services to him.^[iii] The Court also refused the proposition that Plaintiff received an injury because he could not obtain information from the website (services, privileges, advantages, accommodations, amenities, and the physical locations). In fact, the inability to obtain information only matters when it “has some relevance to the litigant.” Id. at 8. Here it is not the case because, even if Plaintiff had been able to obtain information, he could not – by law – have obtained the services. Id. at 8. The Court also  found Griffin’s injury not” particularized”. “For an injury to be particularized, it must affect the plaintiff in a way that is ‘individual” … [and] [t]here must be some connection between the plaintiff and the defendant that differentiates the plaintiff so that his injury is not ‘common to all members of the public.” (Id. at 8 and 9  citing to  Lujan v. Defenders of Wildlife, 504 U.S. 8 555 (1992) and to United States v. Richardson, 418 U.S. 166, 177 (1974), internal citations and quotation omitted). Griffin has not pointed to any connection between the defendant and himself that transforms the general harms he alleges into particularized ones. Again, the law of credit unions is dispositive on this point. Id. at 9 Because 12 U.S.C.§ 1759(b)forbids people different from current and former employees of the Department of Labor and their immediate families from becoming members, any possible “connection between the Credit Union and Griffin that could plausibly serve to particularize his alleged injury” is severed. Id. Lastly, the Court found no “immediate threat that … [Plaintiff] …[could] suffer an injury in fact in the future” which necessary for obtaining an injunction. To establish a “immediate threat”, Plaintiff would need to establish i) a past injury that is concrete and particular (which he could not) ii) and the existence of a “plausible” intent to return” website. Id. at 11.^[iv] The Court held that here “there are reasons to think it is objectively implausible: why would an individual with no hope of ever making use of the Credit Union’s services want to visit a website describing those services?” Griffin at 11. For the above reasons, the Fourth Circuit affirmed the dismissal. Full decision here. For more information, Francesca Giannoni-Crystal.

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^[i]“He does not work for the Department of Labor and never has in the past. No one in his immediate family has ever worked for the Department of Labor, nor has any member of his household. He makes no allegation in his complaint that he is legally permitted to make use of the Credit Union’s benefits.” Griffin at 4 ^[ii]“Griffin puts his case in broad terms, claiming that the rights generally of people  with disabilities to sue for Internet-based harms under the ADA are at stake. But that question is not before us. This case concerns the application of standing doctrine in an electronic age and it is important that we move narrowly in exploring this new territory.” Griffinat 4 ^[iii]“[A] neutral proposition of federal law makes it impossible for Griffin to interact directly with the Credit Union. The Federal Credit Union Act of 1934 expressly forbids the provision of any products or services to him. 12 U.S.C. § 1759. It is therefore impossible—absent a violation of federal law—for Griffin to be “personally subject” to the dignitary harms allegedly occasioned by the Credit Union’s website. ” Id. at 9 The Court referred to the Supreme Court’s case Allen v. Wright, 468 U.S. 737(1984) where the Supreme Court argued that to complain of a discrimination, plaintiff must be “personally subject” to it Allen 468 U.S. at 757 n.22. ^[iv]The precedent cited isNanni v. Aberdeen Marketplace, 878 F.3d 447 (4th Cir. 2017) (holding that to possess standing to seek injunctive relief, plaintiff must plausibly allege future injury).