     Case: 13-20211        Document: 00512827580    Page: 1   Date Filed: 11/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                     No. 13-20211                           FILED
                                                                   November 5, 2014
                                                                       Lyle W. Cayce
LISA MABARY,                                                                Clerk

                                             Plaintiff - Appellant
v.

HOME TOWN BANK, N.A.,

                                             Defendant - Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Lisa Mabary filed a class action claim alleging that Home Town Bank
violated the Electronic Funds Transfer Act 1 (“EFTA”) by failing to post an
external notice of fees on its automatic teller machines (“ATMs”). While the
suit was pending but before class certification, Congress amended the EFTA
to eliminate the external notice requirement. 2 The district court dismissed
Mabary’s claim and denied class certification. We REVERSE the dismissal of
Mabary’s claim and VACATE and REMAND the denial of class certification.




      1   15 U.S.C. § 1963 et seq.
      2   Public law No. 112–216.
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                                      No. 13-20211
                                           I.
      On October 19, 2010, Mabary sued Home Town Bank (“Home Town”), on
behalf of herself and all others similarly situated, alleging that Home Town
violated the EFTA and its implementing Regulation. 3 The EFTA requires any
ATM operator who imposes a fee on users to provide notice that a fee will be
charged and the amount. 4 At the time Mabary filed her suit, the statute
required that the notice be posted in two places (the “two notice” provision):
both externally at the ATM machine (the “posted notice”), and on the screen of
the ATM or on a paper printout before the transaction is completed (the “screen
notice”). 5 If a transaction fee is charged without the required notice, the
statute provides that consumers can recover actual damages, statutory
damages, costs, and fees. 6
      In her complaint, Mabary alleged that in 2010 she was charged a $2.00
fee in connection with one or more electronic fund transfers she completed
using Home Town’s ATMs. She claimed the ATMs lacked the posted notice
required by the statute. There is no dispute that Mabary received an actual
screen notice of the fee and accepted an on-screen prompt to continue with the
transaction after the notice. Mabary’s suit thus did not seek actual damages
for herself or for any putative class member. Rather, she sought “statutory
damages for violations of a consumer protection law where Plaintiff and the
putative class have not suffered any actual out-of-pocket economic injury.”
Mabary sought to represent a class of persons to be defined as follows: All
persons who: (1) were charged a “terminal fee” at ATMs operated by Defendant
when such persons made an electronic fund transfer and/or balance inquiry



      3 12 C.F.R. § 205.1 et seq.
      4 15 U.S.C. § 1693b(d)(3)(A).
      5 Id. § 1693b(d)(3)(B).
      6 See id. § 1693m(a).

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                                    No. 13-20211
where, (2) no notice indicating that such fee was to be charged was posted on
or at the outside of the ATM machine.
      On February 3, 2011, Home Town made a Fed. R. Civ. P. 68 Offer of
Judgment to Mabary, which Home Town contends tendered the full amount of
Mabary’s individual claim. Mabary did not accept the offer, and filed a First
Amended Complaint and Motion for Class Certification on February 7, 2011.
      On February 21, Home Town filed a motion to dismiss the Amended
Complaint under Fed. R. of Civ. P. 12(b)(1), contending that its Rule 68 offer
divested the court of subject matter jurisdiction by mooting Mabary’s
individual claims. The district court denied the motion to dismiss on June 27.
      On October 5, 2011, Home Town filed a Motion to Dismiss or
Alternatively for Stay.     Home Town argued that Mabary lacked standing
because, having received actual notice of the fee, she suffered no injury-in-fact.
On November 22, the district court certified the class. But it later determined
it had improperly certified the class before resolving Home Town’s Motion to
Dismiss, and decertified the class on December 21. Home Town requested a
stay pending Supreme Court review of a related case, First American Financial
Corporation v. Edwards. 7 The district court granted the stay. The Supreme
Court later dismissed First American as improvidently granted. 8 The district
court then unstayed Mabary’s case on August 10, 2012, and considered the
Motion to Dismiss. It found that Mabary did have standing to proceed because
the injury required by Article III may exist solely by virtue of the invasion of
legal rights, and it denied the motion on August 30. 9 On November 19, the
district court stated it was ready to reinstate certification but requested
updated briefs.


      7 132 S. Ct. 2536 (2012).
      8 Id.
      9 Mabary v. Hometown Bank, N.A., 888 F. Supp. 2d 857 (S.D. Tex. 2012).

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                                     No. 13-20211
      During that process, Congress unanimously enacted H.R. 4367 (the
“EFTA amendment”) 10 on December 20, 2012, which amended the EFTA by
repealing the posted notice requirement, leaving only the screen notice
requirement that Mabary indisputably received.
      On July 15, 2013, the district court denied Mabary’s motion for class
certification and dismissed her suit with prejudice. Having determined that
Mabary’s claim did not survive the passage of H.R. 4367, the district court also
concluded that unnamed class members could not become parties to the
litigation on the basis of a class claim that no longer existed.
      Mabary timely appealed.
                                           II.
      Home Town first contends that Mabary lacks standing to bring her claim
because she indisputably received actual notice of the ATM fee and thus
suffered no injury-in-fact. Home Town characterizes the form of the notice
required by the statute as nothing more than a procedural mechanism whose
absence creates no concrete injury.             “[D]eprivation of a procedural right
without some concrete interest that is affected by the deprivation—a
procedural right in vacuo—is insufficient to create Article III standing.” 11 But
we must disagree that Mabary suffered no concrete injury-in-fact as required
by Article III.      “Many statutes, notably consumer-protection statutes,
authorize the award of damages (called ‘statutory damages’) for violations that
cause so little measurable injury that the cost of proving up damages would
exceed the damages themselves, making the right to sue nugatory.” 12 The
EFTA’s damages provisions is a valid enforcement mechanism for such an
injury here. A user of an ATM is not in the same position to decline an ATM


      10 Public law No. 112–216.
      11 Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009).
      12 Crabill v. Trans Union, LLC, 259 F.3d 662, 665 (7th Cir. 2001).

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                                       No. 13-20211
transaction at the initial point, where she walks by the ATM and sees the
posted notice that Congress required, as she is at a later point, when she
receives on-screen notice only after having retrieved her ATM card, entered
personal information such as a Personal Identification Number, and initiated
a transaction. Congress’s determination that consumers were entitled to the
fee information they need to decline a transaction before investing the time
needed to initiate it protects a substantive, if small, right, and its deprivation
is an injury-in-fact that allows Mabary to pursue her claim here. 13
                                             III.
       Home Town also argues that its February 3, 2011, Rule 68 Offer of
Judgment to Mabary in the amount of $1,000—an offer Mabary did not
accept—moots her claim by offering her all relief possible under the EFTA.
Because no class had been certified when Mabary’s claims were mooted, Home
Town alleges, the entire case is moot and must be dismissed under Rule
12(b)(1) for lack of subject matter jurisdiction.
       The district court below rejected Home Town’s claim, 14 as do we.
Although an offer of complete relief (even an unaccepted one) will generally
moot a plaintiff’s claim, 15 we agree with the district court that these




       13  The Eighth Circuit has also concluded that a plaintiff in Mabary’s position satisfies
the standing requirement of Article III. See Charvat v. Mutual First Federal Credit Union,
725 F.3d 819, 825 (8th Cir. August 2, 2013) (holding that plaintiff suffered an “informational
injury” in not receiving posted notice because plaintiff’s right to a particular form of notice
created an interest whose violation was an injury for which Congress prescribed statutory
damages). District courts agree that a plaintiff who alleges a violation of the pre-amendment
“two notice” provision of the EFTA suffered an injury-in-fact sufficient to confer standing.
See, e.g., Alicea v. Citizens Bank of Pennsylvania, 2013 WL 1891348 (W.D. Pa. May 6, 2013);
Frey v. eGlobal ATM, 2013 WL 1091237, at *2 (N.D. Tex. March 15, 2013).
        14 Mabary v. Hometown Bank, N.A., 276 F.R.D. 196 (S.D. Tex. June 27, 2011).
        15 See, e.g., id. at 201 (citing Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir.1991);

Young v. Asset Acceptance, LLC, No. 3:09–CV–2477–BH, 2011 WL 618274, at *2 (N.D. Tex.
Feb. 10, 2011)).
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                                       No. 13-20211
circumstances fit within the “relation back” exception. 16                   That doctrine
prevents a defendant from “picking off” a named plaintiff by mooting her
individual claim before the court has an opportunity to rule on the question of
class certification, if the plaintiff has timely and diligently pursued a motion
for class certification that actually results in a class being certified. 17 The
doctrine allows certification to “relate back” to the filing of the complaint, when
the plaintiff’s claims presented a live controversy, such that class members
“take the place of the named plaintiff(s) for Article III purposes while the
plaintiff(s) still possessed live claims.” 18         If the district court on remand
“ultimately grants the motion to certify, then the Rule 68 offer to the individual
plaintiff” will not fully satisfy the class action claim; “if the court denies the
motion to certify, then the Rule 68 offer of judgment renders the individual
plaintiff’s claims moot.” 19
       We disagree, moreover, with Home Town’s contention that this Court’s
“relation back” rationale does not survive the Supreme Court’s recent decision
in Genesis Health Corp. v. Symczyk. 20 There, the Supreme Court held that a
collective action under the Fair Labor Standards Act (“FLSA”) was no longer
justiciable when plaintiff conceded, and the Third Circuit decided, that an
earlier unaccepted offer of complete judgment mooted the plaintiff’s individual
claim. But the Supreme Court noted, and expressly did not decide, a circuit



       16 See id. at 200–202 (citing Murray v. Fidelity National Financial, Inc., 594 F.3d 419,
421 (5th Cir.2010); Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1045, 1050 (5th
Cir. Unit A July 1981)).
       17 Id; Zeidman, 651 F.2d at 1051 (“We conclude that a suit brought as a class action

should not be dismissed for mootness upon tender to the named plaintiffs of their personal
claims, at least when, as here, there is pending before the district court a timely filed and
diligently pursued motion for class certification.”)
       18 Mabary, 276 F.R.D. at 200–02.
       19 Id. at 203–04 (citing Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 921 (5th Cir.

2008).
       20 133 S. Ct. 1523, 1529 (2013).

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                                      No. 13-20211
split on “whether an unaccepted offer that fully satisfies a plaintiff’s claim is
sufficient to render the claim moot” when the collective action class has not yet
been certified. 21 The Supreme Court also rejected the plaintiff’s reliance on
Rule 23 class action cases, explaining that “Rule 23 actions are fundamentally
different from collective actions under the FLSA.” 22
       Mabary did not voluntarily accept a full settlement offer before filing a
motion for class certification, a scenario we have identified as being outside the
scope of the “relation back” doctrine. 23 Nor did Home Town’s offer of judgment
satisfy both the individual and class-wide statutory maximum claims. 24 Home
Town’s attempt to “pick off” Mabary’s claim before the court could decide the
issue of class certification fits squarely within the “relation back” doctrine,
which saves her claim from mootness at this stage.
                                            IV.
       We turn to whether the EFTA amendment eliminating the “two notice”
provision applies to Mabary’s claims, which are based on ATM withdrawals
that pre-date the amendment.            Our starting point is the “deeply rooted”
presumption against retroactivity of Landgraf v. USI Film Products. 25 We first
determine whether Congress unambiguously has prescribed the statute’s
proper reach, determined by applying normal rules of statutory construction




       21 Id. at 1529–30.
       22 Id. at 1529 (citations omitted). Cf. Sandoz v. Cingular Wireless, 553 F.3d 913, 916
(5th Cir. 2008) (holding that the relation back principle applies to ensure that defendants
cannot unilaterally “pick off” collective action representatives and noting that the
fundamental differences between “opt out” Rule 23 class actions and “opt in” FLSA collective
actions suggests that the “rules and policies underlying” one “might not apply” when
construing the other).
       23 Thomas v. Mamaso, 2013 WL 6225182, at *1–*2 (5th Cir. Dec. 2, 2013)

(unpublished).
       24 See Johnson v. Midwest ATM, Inc., 881 F. Supp. 2d 1071, 1073–74 (D. Minn. July

31, 2012).
       25 511 U.S. 244, 265 (1994).

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                                    No. 13-20211
to the express language to determine Congress’s intent. 26 Failing that, we then
look to “whether the new statute would have retroactive effect, i.e., whether it
would impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to transactions
already completed.” 27 “[E]very statute, which takes away or impairs vested
rights acquired under existing laws, or creates a new obligation, imposes a new
duty, or attaches a new disability, in respect to transactions or considerations
already past, must be deemed retrospective.” 28 And these retroactive effects
being “a sufficient, rather than a necessary, condition for invoking the
presumption against retroactivity,” the “outer limits of impermissible
retroactivity” are even broader, defined instead by the “functional conception”
behind the presumption. 29       If these inquiries demonstrate that the EFTA
amendment has a “retroactive effect,” we apply the presumption against
retroactivity “unless Congress has clearly manifested its intent to the
contrary.” 30
      H.R. 4367 is silent on the statute’s temporal reach, neither expressly
indicating that it is retroactive nor giving any clear indication that Congress
intended the amendment apply retroactively. Home Town’s argument that
retroactive application of the EFTA amendment “would vindicate its purpose
more fully . . . is not sufficient to rebut the presumption against retroactivity,” 31
nor does it give us license to read into the statute an intent that does not appear
there. We look, then, to whether applying the EFTA amendment retroactively



      26  Lindh v. Murphy, 521 U.S. 320, 324–26 (1997); Landgraf, 511 U.S. at 280.
      27  Landgraf, 511 U.S. at 280.
      28 Id. at 269 (citation omitted).
      29 Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 947 (1997) (citation

omitted).
      30 Id. at 946 (citation omitted).
      31 Landgraf, 511 U.S. at 285–86.

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                                        No. 13-20211
to Mabary’s claims would have an impermissible retroactive effect, and
determine that it would. Retroactive application would impermissibly attach
new legal consequences to prior events by completely depriving Mabary of her
claims. 32 Prior to the passage of the amendment, Mabary had a cause of action
based upon Home Town’s alleged actions, but afterward she would not—the
amendment thus “may be seen as destroying a cause of action and impairing a
party’s rights.” 33 Mabary’s private civil right to statutory damages accrued
prior to the amendment’s effective date, “a right that would be impaired if [the
amendment’s] repeal of private rights of action were applied retrospectively.” 34
       Home Town seeks to escape this conclusion by arguing that the repeal of
the “two notice” provision merely changed Congress’ preferred method for
effectuating a substantive right to notice, making a substantive/procedural
distinction in light of prior holdings that retroactive application of procedural
rules is permissible. 35 Although this argument has purchase, it finds little
support in the framework of existing precedent. The “two notice” provision and


       32  See Mathews v. Kidder, Peabody & Co.,161 F.3d 156, 165 (3d Cir. 1998) (holding
that “a change from treble damages (under RICO) to compensatory damages alone (under the
securities laws) may be seen as destroying a cause of action and impairing a party’s rights,”
and thus having a retroactive effect under Landgraf).
        33 Cf. id. at 163, 165; Scott v. Boos, 215 F.3d 940, 944–45 (9th Cir. 2000) (holding that

an amendment that eliminated liability under RICO for certain fraudulent acts would have
an impermissible retroactive effect if applied to claims alleging violations before the
amendment’s effective date because “prior to the [amendment] a plaintiff had a RICO claim
based on a defendants’ alleged securities fraud, while afterwards a plaintiff does not”).
        34 Killingsworth v. HSBC Bank Nevada, 507 F.3d 614, 622 (7th Cir. 2007) (reversing

under Landraf the dismissal of a class action alleging violations of certain disclosure
requirements under the Fair Credit Reporting Act where an amendment, which became
effective after the violations but before the class action was filed, eliminated private
enforcement of the disclosure provisions).
        35 See, e.g., Landgraf, 511 U.S. at 275 (noting that “[c]hanges in procedural rules may

often be applied in suits arising before their enactment without raising concerns about
retroactivity” because they involve “diminished reliance interests” and “regulate secondary
rather than primary conduct”). Cf. Blaz v. Belfer, 368 F.3d 501, 502–05 (5th Cir. 2004)
(Because a statute “provides a procedural framework for the secondary conduct of filing
certain state securities claims[, and] does not regulate the primary conduct that is the subject
of those claims,” it is not “impermissible retroactive.”)
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                                        No. 13-20211
its repeal govern the primary conduct of posting notices on ATMs, not the
secondary conduct of procedural mechanisms for adjudicating claims. At the
time Mabary’s claim arose, she had a substantive right to two notices or
statutory damages, and without clear Congressional intent to the contrary, the
presumption against retroactivity restricts the application of the EFTA
amendment to eliminate her claim. We thus are unable to fit the substantive
two-notice right into a procedural framework, and must hold that the EFTA
amendment does not apply retroactively to Mabary’s claim. 36
                                               V.
       The district court determined that because Mabary’s claim did not
survive the repeal of the “two notice provision,” the basis of any class claim
ceased before certification and a class could not be certified to vindicate a
defunct statutory right. Although this Court generally reviews the district
court’s denial of class certification for abuse of discretion, 37 we review de novo
determinations of questions of law. 38 Holding as we do that the repeal of the


       36  In so holding, we join both circuits to have considered this issue. See Hughes v. Kore
of Indiana Enterprise, Inc., 731 F.3d 672, 674, 678 (7th Cir. 2013) (applying the pre-
amendment “two notice” provision to plaintiff’s class action suit and explaining that the
failure to post an external second notice on an ATM violated the provision of the EFTA in
effect at the time of the alleged violations, “and so exposed [defendant] to liability”); Charvat
v. Mut. First Fed. Credit Union, 725 F.3d 819, 821, 824 (8th Cir. 2013) (applying to plaintiff’s
suit the “two notice” provision of the EFTA in effect at the time the plaintiff completed the
ATM transactions because the later repeal of the provision did not apply retroactively). Our
holding also is consistent with the district courts to have considered the question. See Pike
v. Nick’s English Hut, Inc., 937 F. Supp. 2d 956, 960 (S.D. Ind. March 27, 2013) (applying
Landgraf to the EFTA amendment and determining that “based upon the lack of explicit
congressional direction that the changes to the EFTA apply retroactively, the fact that the
law disfavors retroactive applicability of statutory law, and [plaintiff’s] vested right to pursue
a claim for violation of the EFTA,” the pre-amendment version of the EFTA applied to
plaintiff’s claim); Gonzalez v. Investors Bank, 2013 WL 5730528, No. 2:12-cv-04084, at *2, *4–
*5. (D. N.J. Oct. 21, 2013) (applying Landgraf to the EFTA amendment and determining that
retroactive application would impermissibly “attach[] new legal consequences to prior events
by completely depriving [p]laintiffs of their claims”).
        37 Berger v. Compaq Computers, Inc., 257 F.3d 475, 478 (5th Cir. 2001).
        38 Fener v. Operating Eng’rs Constr. Indus. & Miscellaneous Pension Fund (Local 66),

579 F.3d 401, 406 (5th Cir. 2009).
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                                       No. 13-20211
“two notice” provision does not apply retroactively to Mabary’s claim, the EFTA
amendment poses no more a barrier for putative class members than it does
for Mabary, for claims alleging violations before the amendment was enacted. 39
We thus VACATE the district court’s denial of class certification and REMAND
for the district court to decide whether the class should be certified pursuant
to Rule 23 and other considerations, it being best positioned to make factual
and legal findings necessary for this determination in the first instance. 40




       39  See, e.g., Harter v. Beach Oil, 2013 WL 6051028, No. 3:10-cv-0968 (M.D. Tenn. Nov.
15, 2013) (granting plaintiff’s motion for class certification after determining that the EFTA
amendment did not apply retroactively to defeat plaintiff’s claim); Pike v. Nick’s English Hut,
Inc., 937 F. Supp. 2d 956 (S.D. Ind. March 27, 2013) (certifying class on January 14, 2013,
after the EFTA amendment was enacted); Killingworth v. HSBC Bank Nevada, 507 F.3d 614,
617–18 (7th Cir. 2007) (reversing a motion to dismiss because it found a statutory
amendment did not apply retroactively to a claim alleging pre-amendment violations, in a
case where plaintiff filed her class action lawsuit after the statute that removed her right to
a claim became effective). Cf. Hughes v. Kore of Indiana Enter., Inc., 731 F.3d 672 (7th Cir.
2013) (reversing a district court’s decision to decertify a class on other grounds, after
assuming that the two-notice provision of the EFTA did not apply retroactively to plaintiff’s
claim).
        40 See Pederson v. Louisiana State Univ., 213 F.3d 858, 869 (5th Cir. 2000).

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                                  No. 13-20211
E. GRADY JOLLY, Circuit Judge, dissenting:
      With due respect, it is difficult to determine which feature of the
majority’s opinion is more stunning: that it finds standing on the basis of a new
theory of law that has not been so much as hinted at, much less urged, by the
plaintiff in this case; or that this “delayed-notice” theory of injury on which it
finds standing is so utterly unsupported by law or fact. Mabary is represented
by able counsel, and it is gratuitous for the majority to aid Mabary with a
standing theory of its own devising. Instead, we should consider the standing
argument that she actually makes—that is, simply by virtue of her statutory
cause of action, it follows that she also has standing to sue. This argument is
foreclosed by Article III of the Constitution, however, and, lacking any injury
in fact, Mabary lacks standing.
                                        I.
      The basic requirements of standing are familiar: “a plaintiff must show
(1) an injury in fact, (2) a sufficient causal connection between the injury and
the conduct complained of, and (3) a likelihood that the injury will be redressed
by a favorable decision.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,
2341 (2014). Mabary does not claim any economic injury—nor could she: it is
undisputed that she received actual notice of the fee and chose to complete the
transaction anyway. Nonetheless, the majority finds standing, supposing that
“a user of an ATM is not in the same position to decline an ATM transaction at
the initial point, where she walks by the ATM and sees the posted notice . . . ,
as she is at a later point, when she receives screen notice only after having
retrieved her ATM card, entered personal information such as a Personal
Identification Number, and initiated a transaction.” Hardly concrete injury;
hardly an injury in fact when no such fact is even claimed by the plaintiff. Put
differently, the majority concludes that the few seconds’ delay between when
Mabary might have seen posted notice and when she saw the screen notice is
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                                      No. 13-20211
an Article III injury in fact because, theoretically, she could have been
dissuaded by the posted notice before she invested time and effort into
initiating the transaction.
       This is a novel theory of injury in fact, one that Mabary never mentioned
at any point in this case 1 and one that, so far as I can tell, no court has ever
endorsed. Indeed, to my way of thinking, it is, respectfully, silly stuff. But
even assuming that the delayed-notice theory is viable in the abstract, it fails
on the facts of this case to yield an injury that is cognizable under Article III.
       To constitute an Article III injury in fact, Mabary’s injury must be
“concrete” and “particularized,” rather than “speculative” or “conjectural.”
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147, 1149 (2013) (internal
quotation marks omitted). Her purported delayed-notice injury easily and
surely falls on the speculative-or-conjectural side of this distinction. According
to the majority, “a user of an ATM” is better situated to avoid an ATM fee if
she is given posted notice rather than just screen notice.                   Even if this
speculation proved true, or even if it had been alleged, it is irrelevant. The
critical question for Article III purposes is not what is likely to befall any given
“user of an ATM” as a result of Home Town’s conduct, but whether “the injury
. . . affect[ed] the plaintiff in a personal and individual way.”                 Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1991) (emphasis added). Neither
Mabary nor the majority cites any evidence showing that Mabary—rather than
some hypothetical ATM user—might have, in the abstract, made a different
decision had she known about the fee before she initiated the transaction.
       To be sure, in the world of speculation, posted notice may just as well
have made no difference at all. Allow this dissent to speculate along with the



       1Arguments not made are, of course, waived. See, e.g., United States v. Whitfield, 590
F.3d 325, 346 (5th Cir. 2009).
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                                       No. 13-20211
majority. Perhaps Mabary knew that Home Town’s ATMs would charge her a
fee even before she began the transactions. 2 Or perhaps Mabary was in a hurry
on the days on which she used Home Town’s ATMs, such that she had already
decided to complete the transactions whether or not she would be charged a
fee.    “[S]tanding,” however, “is not an ingenious academic exercise in the
conceivable but requires a factual showing of perceptible harm.” Summers v.
Earth Island Inst., 555 U.S. 488, 499 (2009) (internal alterations omitted).
Mabary has made no factual showing—none—that she might have made
different decisions had she received posted notice.                   Indeed, her counsel
conceded as much at oral argument, saying that “I don’t think there are really
facts in this record about exactly what Mabary knew when about the fee that
would be charged.” This lack of a factual showing should have stopped in its
tracks the majority’s speculative, delayed-notice theory of injury.
                                              II.
         But of course (though it is no matter to the majority), Mabary fails to
even suggest that she had standing based on a delayed-notice theory. Instead,
she asserts that she suffered an injury in fact because the EFTA provided her
a right not to be charged a fee absent the statutorily required notice, and Home
Town violated that right. 3            There remains the constitutional question



         2Indeed, as to some transactions, she likely did, given that the record shows she used
Home Town’s ATMs more than once.
        3 Mabary also seems to argue that she suffered the sort of “informational injury” that

was recognized by the Supreme Court in FEC v. Akins, 524 U.S. 11 (1998). But in order to
suffer informational injury, a plaintiff must actually be deprived of information. See Akins,
524 U.S. at 21 (“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain
information which must be publicly disclosed pursuant to a statute.”) (emphasis added); see
also Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 430 (5th Cir. 2013)
(distinguishing a prior case declining to find informational-injury-based standing on the
ground that, in the case at bar, the defendant “never claimed that it . . . at any time complied
with [the] reporting requirement”). Mabary’s assertion is not that that she was deprived of
the information that she would be charged a fee if she used Home Town’s ATMs, but rather
that Home Town failed to provide her with the information in a form to which she was
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                                       No. 13-20211
implicated by Mabary’s argument: can Congress, by authorizing a remedy for
the bare violation of a statute, create Article III standing where it would not
otherwise exist? Although this question is weighty, well-settled principles
dictate that the answer is no.
       It is an elementary principle that Article III limits the power of the
federal judiciary to “cases” and “controversies,” U.S. Const. art. III, § 2, and
that standing’s requirement of injury in fact is “derived directly from” the case-
or-controversy requirement. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006) (internal quotation marks omitted).                 Inherent to the nature of
constitutional     rules—constitutional        rules    like   the    Article   III-derived
requirement of injury in fact—is the fact that they cannot be set aside by
Congress; they are, instead, “superior, paramount law, unchangeable by
ordinary means.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60
(1803). For this reason, it has long been “settled that Congress cannot erase
Article III’s standing requirements by statutorily granting the right to sue to
a plaintiff who would not otherwise have standing.” Raines v. Byrd, 521 U.S.
811, 820 n.3; see also, e.g., Summers, 555 U.S. at 497 (“[T]he requirement of
injury in fact is a hard floor of Article III jurisdiction that cannot be removed
by statute.”); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979)
(“Congress may, by legislation, expand standing to the full extent permitted by
Art. III . . . . In no event, however, may Congress abrogate the Art. III minima:
A plaintiff must always have suffered a distinct and palpable injury to himself
. . . .” (internal quotation marks omitted)).
       This long-settled principle resolves this case. Mabary cannot show that
she suffered a cognizable injury in fact, so she can sue only if the existence of


statutorily entitled. Thus, the informational-injury line of cases is inapposite, and Mabary’s
assertions of injury in fact are vaporized to the contention that the invasion of a statutory
right is, in itself, injury in fact.
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                                  No. 13-20211
her statutory cause of action sufficed to satisfy Article III. But since Congress
cannot create standing ex nihilo, the existence of that cause of action does not
allow Mabary to bring this injury-less suit.
      Mabary offers one quote from Warth v. Seldin, 422 U.S. 490 (1975), to
support her position. There, the Court stated that “Congress may create a
statutory right or entitlement the alleged deprivation of which can confer
standing to sue even where the plaintiff would have suffered no judicially
cognizable injury in the absence of statute.” Warth, 422 U.S. at 514. But this
statement does not mean (as Mabary seems to urge) that Congress may confer
standing upon a plaintiff who has suffered no concrete, de facto injury. Instead,
as the Court has later explained, it means merely that Congress may “elevat[e]
to the status of legally cognizable injuries concrete, de facto injuries that were
previously inadequate in law.”     Lujan, 504 U.S. at 578.        In other words,
Congress’s creation of a cause of action can make an injury legally cognizable,
but it can’t make a non-injury justiciable in an Article III court. To hold
differently defies the Supreme Court’s oft-repeated observation that the
requirement of injury in fact is “an outer limit to the power of Congress [that]
is a direct and necessary consequence of the case and controversy limitations
found in Article III.” Id. at 580 (Kennedy, J., concurring).
      For these reasons, I respectfully dissent.




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