                                           UNPUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                                 No. 18-1434


KEITH CARROLL,

                        Plaintiff - Appellant,

                v.

NORTHWEST FEDERAL CREDIT UNION, Northwest FCU,

                        Defendant - Appellee.

----------------------------------------------

NATIONAL ASSOCIATION OF FEDERALLY-INSURED CREDIT UNIONS,

                        Amicus Supporting Appellee.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-01205-CMH-JFA)


Submitted: May 1, 2019                                         Decided: May 13, 2019


Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas E. Strelka, L. Leigh Strelka, Norvell W. West IV, STRELKA LAW OFFICE,
Roanoke, Virginia; Scott J. Ferrell, Victoria C. Knowles, PACIFIC TRIAL
ATTORNEYS, P.C., Newport Beach, California, for Appellant. John M. Bredehoft,
KAUFMAN & CANOLES, PC, Norfolk, Virginia, for Appellee. Edward Lee Isler, Mark
E. Papadopoulos, ISLER DARE, P.C., Vienna, Virginia, for Amicus Curiae.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          Keith Carroll appeals from the district court’s dismissal, for lack of subject matter

jurisdiction and for failure to state a claim, of his claim seeking injunctive relief under

Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189

(2012). Because we agree that Carroll lacks Article III standing to bring his claim, we

affirm.

          Northwest Federal Credit Union (“NWFCU”) is a federal credit union operating

under the Federal Credit Union Act of 1934. 12 U.S.C. §§ 1752-1775 (2012). NWFCU

operates a website that describes its products and services. Only members can take

advantage of NWFCU’s products or services; only members can open an account or take

out a loan or enjoy in any way the benefits of NWFCU. NWFCU’s membership is

restricted to employees, retirees, and family/household members of particular

government agencies and partner organizations.               Volunteers for some partner

organizations are also eligible for membership; one of those partner organizations is

Special Olympics Virginia.

          Carroll is a visually-impaired resident of Virginia who uses a screen reader to

access the internet. Screen readers assist users by reading aloud text that appears on a

website. Carroll’s central allegation is that NWFCU operates a website that significantly

hinders the use a of screen reader to access the website and learn about the products and

services NWFCU offers.

          At the time Carroll filed his amended complaint, he was not eligible to join

NWFCU. He was not an employee or retiree of any of the applicable government

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agencies or partner organizations. Nor was he eligible for household/family membership.

In his amended complaint, Carroll alleged that he intended to volunteer for Special

Olympics Virginia at least once in 2018, thereby becoming eligible to join NWFCU.

Carroll also alleged that he could investigate NWFCU’s services and products, and find

its physical locations, if NWFCU’s website were accessible with a screen reader.

Carroll’s amended complaint sought injunctive relief, costs, and attorneys’ fees.

NWFCU moved to dismiss for lack of standing and for failure to state a claim, pursuant

to Fed. R. Civ. P. 12(b)(1), (6). While NWFCU’s motion to dismiss was pending, Carroll

filed a declaration stating that he had signed up to volunteer at a Special Olympics

Virginia event that would take place on April 28, 2018. Before that date, the district

court granted NWFCU’s motion, and Carroll now appeals. *

       We review de novo a district court’s dismissal of a complaint for lack of subject

matter jurisdiction. Bennett v. U.S. Sec. & Exch. Comm’n, 844 F.3d 174, 178 (4th Cir.

2016). “A district court should grant a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1) only if the material jurisdictional facts are not in dispute

and the moving party is entitled to prevail as a matter of law.” Upstate Forever v. Kinder

Morgan Energy Partners, L.P., 887 F.3d 637, 645 (4th Cir. 2018) (internal quotation

marks omitted), petition for cert. filed, ___ S. Ct. ___ (U.S. Aug. 28, 2018) (No. 18-268).

The nonmoving plaintiff bears the burden of proving subject matter jurisdiction.


       *
       On appeal, the National Association of Federally-Insured Credit Unions has filed
an amicus brief in support of NWFCU.


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Demetres v. E. W. Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015). Federal jurisdiction is

determined based on the facts as they existed when the complaint was filed. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992).

       Under Article III of the Constitution, federal courts are limited to deciding actual

cases or controversies. U.S. Const., art. III, § 2, cl. 1. As a result, a litigant seeking

redress in a federal court must have standing, which requires proof of “(1) . . . an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016).

       “To establish injury in fact, a plaintiff must show that he or she suffered an

invasion of a legally protected interest that is concrete and particularized and actual or

imminent, not conjectural or hypothetical.”        Id. at 1548 (internal quotation marks

omitted). “For an injury to be particularized, it must affect the plaintiff in a personal and

individual way.” Id. (internal quotation marks omitted). For an injury to be concrete, it

“must be de facto; that is, it must actually exist.” Id. (internal quotation marks omitted).

“‘Concrete’ is not, however, necessarily synonymous with ‘tangible[,]’ . . . and intangible

injuries can nevertheless be concrete.”      Id. at 1549.    However, “a bare procedural

violation, divorced from any concrete harm,” does not “satisfy the injury-in-fact

requirement of Article III.” Spokeo, 136 S. Ct. at 1549. In addition, when seeking

injunctive relief, a plaintiff has standing only when there is a “real or immediate threat”

that the plaintiff will suffer an injury in the future. City of L.A. v. Lyons, 461 U.S. 95,

111 (1983). An injury must be “certainly impending” if it is to serve as the basis for

                                              5
standing to seek injunctive relief. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).

Mere “some day” intentions, without concrete plans, do not support a finding of an

“actual or imminent” injury. Lujan, 504 U.S. at 564.

       Our holding in Griffin v. Department of Labor Federal Credit Union, 912 F.3d

649 (4th Cir. 2019), guides our decision in this case. In Griffin, we held that Clarence

Griffin, a visually-impaired plaintiff, lacked standing to sue a federal credit union for

deficiencies in its website’s accessibility when he was neither a member nor eligible to

become a member of the credit union. Id. at 653-56. We reasoned that Griffin lacked a

concrete and particularized injury because of the legal barriers that precluded him from

using the credit union’s services. Id. at 653-55. Further, we concluded that Griffin could

not obtain injunctive relief because he did not allege an immediate threat of future harm,

in that the legal barriers rendered implausible his claim that he would return to the

website. Id. at 656.

       This case bears only one noteworthy distinction from Griffin: Carroll’s allegation

that he intends to volunteer for Special Olympics Virginia. As a volunteer, Carroll would

be eligible to join NWFCU and access its services and products. However, when Carroll

filed his amended complaint, he did not allege that he had volunteered for Special

Olympics Virginia, only that he intended to volunteer at some indeterminate time in

2018. Any future harm to Carroll was entirely speculative, and not certainly impending,

because his amorphous intent to volunteer with Special Olympics Virginia was itself

speculative.   See Lujan 504 U.S. at 564 (“Such some day intentions—without any

description of concrete plans, or indeed even any specification of when the some day will

                                            6
be—do not support a finding of the actual or imminent injury that our cases require.”

(internal quotation marks omitted)). Therefore, Carroll is no different from the plaintiff

in Griffin, and he similarly lacks standing to bring this claim.

       While Carroll later filed a declaration in the district court indicating that he had, in

fact, signed up for a particular event on a particular date, this fact has no impact on

Carroll’s standing in this case. Carroll’s standing to sue is based on the facts as they

existed when he filed his amended complaint, not as they existed when the court resolved

the motion to dismiss, nor even as they exist right now. Lujan, 504 U.S. at 569 n.4.

       Accordingly, we grant Carroll’s motion to take judicial notice, we deny Carroll’s

motions to supplement the record and to file a supplemental brief, and we affirm the

judgment of the district court. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                                 AFFIRMED




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