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                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-11539
                              ________________________

                         D.C. Docket No. 1:13-cv-23882-FAM

ANDRES GOMEZ,


                                                                      Plaintiff-Appellant,

                                           versus

DADE COUNTY FEDERAL CREDIT UNION,
                                                                    Defendant-Appellee.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                       (May 6, 2015)

Before MARTIN and FAY, Circuit Judges, and GOLDBERG,* Judge.




__________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
      designation.
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GOLDBERG, Judge:

      Andres Gomez, a resident of Miami, Florida, is legally blind. In July 2013,

Gomez stopped at an automated teller machine (“ATM”) near his home, inserted a

card and headset, and prepared to do business using the machine’s voice guidance

system. Nothing happened. Instead of giving audible instructions as required by

the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101−12213 (2012),

the machine spewed only silence, and Gomez was unable to finish a transaction.

      Three months later, Gomez sued the ATM’s owner, Dade County Federal

Credit Union (“Dade”). He asked for an injunction that would force Dade to bring

its ATMs into compliance with the ADA. The district court dismissed the case,

however, and found that Gomez lacked constitutional standing to bring a claim.

      We now affirm. While we commend the plaintiff’s effort to secure fair

treatment for the blind community, the law does not permit injunctive relief against

businesses whose noncompliance was unintentional, temporary, and isolated. See

28 C.F.R. § 36.211(b) (2014). Because Gomez suffered only an isolated harm, he

lacks standing to secure an injunction, and the case was rightly dismissed.

                              I.      BACKGROUND

   A. The Americans with Disabilities Act

      Congress passed the ADA in 1990 to solve a pressing problem: the

exclusion of disabled people from the public sphere. Throughout history,



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discriminatory barriers and overprotective rules kept the disabled from enjoying

services, programs, and jobs on equal footing with others. See 42 U.S.C.

§ 12101(a). The legislature sought to break the status quo by assuring “equality of

opportunity, full participation, [and] independent living” for the disabled through

“clear, strong, consistent, enforceable standards.” Id. § 12101(a)(7), (b)(2). These

rules apply to employers, local and state governments, and public

accommodations—a group that reflects the law’s sweeping mandate.

      Title III of the ADA prohibits discrimination in public accommodations, and

gives specific guidance to that end. See id. § 12182. For example, the law orders

businesses “to ensure that no individual with a disability is excluded, denied

services, segregated or otherwise treated differently than other individuals because

of the absence of auxiliary aids and services.” Id. § 12182(b)(2)(A)(iii).

Businesses may derogate from this rule only if complying would cause an undue

burden. Furthermore, to flesh out the statute’s commands, the law authorizes the

Attorney General to craft regulations and set standards. Id. § 12186(b). The

Attorney General’s standards must accord with suggestions from the Architectural

and Transportation Barriers Compliance Board (the “Access Board”), a body of

expert appointees created by the Rehabilitation Act of 1973 § 502, 29 U.S.C.

§ 792(a). Id. § 12186(c).




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       The Attorney General released the first ADA standards in 1991 and retooled

them effective March 15, 2011. See Nondiscrimination on the Basis of Disability

by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56,236,

56,237−38 (Dep’t of Justice Sept. 15, 2010) (“Final Rule”). The latest set, called

the 2010 Standards, was adopted from the Access Board’s 2004 ADA

Accessibility Guidelines. See id.; 36 C.F.R. pt. 1191 app. D (“2004 ADAAG”).

The 2004 ADAAG prescribe a variety of architectural and technical rules for

public facilities, and among these, rules for ATMs. These standards aim to help

people with visual impairments, and require that ATMs give users a modicum of

privacy, 2004 ADAAG § 707.4; that they be speech enabled, or “independently

usable by individuals with vision impairments” through a “standard connector or a

telephone handset,” id. § 707.5; and that they have raised, “tactilely discernable”

input keys and Braille instructions, among other specifications, id. §§ 707.6, 707.8.

Those who do not comply may fall subject to an injunction, or less often, to

monetary damages or civil penalties. See 42 U.S.C. § 12188(a), (b)(2). 1

       1
         Under the ADA, only the Attorney General may file civil suits for damages and
penalties. See 42 U.S.C. § 12188(b). And the Attorney General may sue only if he has cause to
believe that a business is engaged in a “pattern or practice of discrimination,” or if discriminatory
conduct “raises an issue of general public importance.” Id. § 12188(b)(1)(B). As a consequence,
those who violate the ADA face damages and penalties only rarely. Nat’l Council on Disability,
Implementation of the Americans with Disabilities Act 167−68 (2007) (noting limited
involvement of Justice Department in ADA litigation); Samuel R. Bagenstos, The Perversity of
Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1,
9−10 (2006) (remarking that Justice Department employs “only a small cadre of lawyers” to
enforce ADA(internal quotation marks omitted)); Casey L. Raymond, A Growing Threat to the
ADA: An Empirical Study of Mass Filings, Popular Backlash, and Potential Solutions Under


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       Even so, the law recognizes that access measures may fail from time to time.

When snow falls on a wheelchair ramp, the ramp may be briefly impassable. See

Foley v. City of Lafayette, 359 F.3d 925, 927−28 (7th Cir. 2004). In a similar way,

a store aisle or sales counter may become cluttered with merchandise. See

Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1003−04 (9th Cir. 2015).

Because weather or wear or computer glitches may hamper access—and by no

fault of the business owner—the regulations “do[] not prohibit isolated or

temporary interruptions in service or access due to maintenance or repairs.” 28

C.F.R. § 36.211(b). The rule “is intended to clarify that temporary obstructions or

isolated instances of mechanical failure would not be considered violations of the

Act.” 28 C.F.R. pt. 36 app. C § 36.211. But “allowing obstructions or ‘out of

service’ equipment to persist beyond a reasonable period of time would violate [the

Act], as would repeated mechanical failures due to improper or inadequate

maintenance.” Id. The exception for temporary malfunctions is a narrow one.

   B. Gomez Tests an ATM

       Andres Gomez suffers from macular degeneration and is legally blind, as

noted above. He lives less than a mile from an ATM operated by the defendant

(the “Subject ATM”). Dade has a total of thirty-six machines in its network.


Titles II and III, 18 Tex. J. C.L. & C.R. 235, 257−59 (2012) (describing Justice Department’s
limited enforcement role). Thus the qui tam or private attorney general suit is the most common
form of enforcement under the ADA, but the only remedies there are injunctions, fees, and costs.
See 42 U.S.C. § 12188(a)(1) (incorporating by reference 42 U.S.C. § 2000a-3).


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      In February 2012, technicians from Diebold Inc. upgraded the Subject ATM

to comply with the Attorney General’s 2010 Standards. About a year after the

upgrades, Dade employee Trayon Gaskins inspected the Subject ATM for ADA

compliance. He used “headphones and a debit card to access the voice guidance

system,” and completed a transaction. He also filled out a checklist indicating the

status of various parts of the machine, including the audio jack, the Braille plaque,

and the audio instructions. Gaskins said, in a sworn statement, that he

“encountered no difficulties or problems with the voice guidance system” when

testing the Subject ATM.

      Then, on July 21, 2013, Gomez visited the Subject ATM and attempted a

transaction. He plugged in his headphones, which were “compatible with ATM

voice guidance technology,” but the voice guidance system did not work. As a

result, Gomez was unable to complete a transaction. Gomez also said an

investigation was performed on his behalf, which indicated that other ATMs in the

network were out of compliance. Gomez never said who the investigator was or

which ATMs had misfired.

      Later that October, Dade branch manager Stephanie Miles again tested the

Subject ATM. She followed the same checklist that Gaskins had used in April,

and she found the voice guidance system was fully operational.




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   C. Gomez Files Suit

       On October 25, 2013, Gomez filed a class action in the Southern District of

Florida. The complaint alleged that the Subject ATM did not comply with ADA

standards. Rather than giving specific information about the alleged malfunction,

however, Gomez reported only that the voice guidance system failed sometime

after the 2010 Standards came into effect. 2 Gomez added that he planned to revisit

the Subject ATM in his effort to find ADA-compliant machines. For relief, Gomez

requested a permanent injunction requiring defendant to bring its ATMs into

compliance, along with costs and attorney’s fees.

       Dade moved to dismiss the complaint for want of jurisdiction on February

13, 2014. Defendant argued that Gomez lacked standing because he failed to

allege a constitutional injury-in-fact. In support, Dade produced declarations from

Gaskins, Miles, and others showing that the Subject ATM complied with ADA

standards both before and after plaintiff’s test.

       Gomez responded with his own declaration, which testified that he visited

the Subject ATM just after the motion to dismiss on February 27, 2014. This time,

the machine worked and Gomez was able to “complete a balance inquiry

transaction using voice guidance.” Gomez further declared that he tested a second


       2
         Though the Final Results became effective in March 2011, the communications
standards relevant to this case went into effect on March 15, 2012. See Final Rule at 56,237,
56,256.


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ATM about sixteen miles away from his home on the same day. He reported that

this ATM’s voice guidance system began when prompted, but “stopped during the

course of the transaction.”

      The trial court granted the defendant’s motion and dismissed the complaint

on March 24, 2014. After weighing the parties’ evidence, the court concluded that

Gomez lacked constitutional standing to bring a claim. In the court’s view, Gomez

was not under imminent threat of injury. Dade’s declarations showed that the

Subject ATM complied with ADA standards before and after Gomez’s July 2013

visit, and hence it was unlikely Gomez would suffer another malfunction at the

Subject ATM in the future. The court also refused to credit plaintiff’s assertion

that other ATMs were out of compliance, because Gomez offered nothing to

corroborate the findings of his unnamed investigator. Finally, the court accorded

no weight to the allegation that a second ATM broke down after the suit began.

Because “standing is determined as of the time at which the plaintiff’s complaint is

filed,” Gomez could not create standing by alleging a malfunction four months

after the case began.

      The court dismissed plaintiff’s case without prejudice, but Gomez did not

take the opportunity to amend and refile his complaint. Instead, he appealed.




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                                II.    DISCUSSION

      We must now decide whether the trial court erred to dismiss the complaint

for lack of standing. For reasons set forth below, we affirm.

      The Constitution extends the federal judicial power to cases and

controversies arising under federal law. See U.S. Const. art. III, § 2. This

provision gives birth to the doctrine of constitutional standing, which permits

judicial redress only where plaintiff suffers the invasion of a legally protected

interest or “injury in fact,” and a court decision will remedy the harm that

defendant caused. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560−61 (1992).

      In most suits, a plaintiff may prove injury-in-fact—and his personal stake in

the litigation—by alleging a past harm that the court can remedy. See City of Los

Angeles v. Lyons, 461 U.S. 95, 102−03 (1983). But when plaintiff sues for

injunctive relief, the law requires more. An injunction, by definition, seeks to stop

an ongoing injustice or to prevent future injury. So to claim standing for an

injunction, plaintiff must prove that he “sustained or is immediately in danger of

sustaining some direct injury as the result of the challenged . . . conduct and the

injury or threat of injury must be both real and immediate, not conjectural or

hypothetical.” Id. at 102 (internal quotation marks omitted). In Title III cases,

plaintiff must prove he is likely to suffer discrimination in the future, either

because he intends to return to a noncompliant establishment, or because



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defendant’s misconduct deterred his patronage. See Houston v. Marod Supermkts.,

Inc., 733 F.3d 1323, 1334−37 (11th Cir. 2013) (holding plaintiff who often passed

defendant’s store alleged intent to return and injury-in-fact); Kreisler v. Second

Ave. Diner Corp., 731 F.3d 184, 187−88 (2d Cir. 2013) (finding injury-in-fact

where plaintiff deterred from visiting diner with inadequate wheelchair access);

Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137−38 (9th Cir. 2002)

(finding injury-in-fact where plaintiff deterred from visiting store with architectural

barriers).

       Here, the trial court weighed evidence from the parties’ declarations to

decide whether Gomez suffered an injury warranting an injunction. Plaintiff

claims this was a mistake. Though courts typically weigh evidence to discern

jurisdiction on motions to dismiss, the Eleventh Circuit makes an exception where

matters of statutory standing intertwine with merits issues. Lawrence v. Dunbar,

919 F.2d 1525, 1530 (11th Cir. 1990). When a question of standing is the same as

an issue presented on the merits, courts apply a summary judgment standard,

dismissing only if undisputed facts show that the plaintiff lacks standing. See id.

(applying summary judgment standard where Federal Tort Claims Act “scope of

employment” issue implicated standing and merits); see also Morrison v. Amway

Corp., 323 F.3d 920, 927−28 (11th Cir. 2003) (applying summary judgment

standard where Family Medical Leave Act “eligible employee” issue implicated



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standing and merits); Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256,

1266−67 (11th Cir. 1997) (applying summary judgment standard where Age

Discrimination in Employment Act “employer” issue implicated standing and

merits). To this end, Gomez claims that the matter of defendant’s compliance

bears both on constitutional injury-in-fact and defendant’s liability under the

statute. Thus in plaintiff’s view, we should review the motion to dismiss de novo

and apply a summary judgment standard to settle disputed facts.

      But there is no need to fuss over these arguments. Even if we apply the

summary judgment standard, plaintiff still fails to allege an injury-in-fact. As

mentioned before, those who seek standing under Title III must show either that

they intend to return to a noncomplying public accommodation, or that defendant’s

inaction deterred plaintiff from visiting an offending site. See Houston, 733 F.3d

at 1334−37. Gomez cannot make either showing, because he cannot establish the

crucial fact underpinning both tests: Dade’s failure to comply with ADA rules.

      The 2010 Standards list the traits of ADA-compatible ATMs in minute

detail. Some of these specifications, like the rule requiring tactile keys, describe

the physical attributes of ADA-worthy machines. See 2004 ADAAG § 707.6.

After a bank fits its ATMs to comply with such rules, the machines will likely

remain compliant unless the bank erects new barriers to access. But other

standards demand ongoing attention to ensure compliance. The rule requiring



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ATMs to have a voice guidance system falls in this category, because once a voice

system is installed, the program may occasionally malfunction and require

maintenance. See id. § 707.5. Periodic hurdles may thus arise not as a result of

negligence or bad intent, but as a natural attendant of the access-enhancing

solution. To ensure that periodic breakdowns are not punished as ADA violations,

the regulations permit “isolated or temporary interruptions in service or access due

to maintenance or repairs,” 28 C.F.R. § 36.211(b), as long as the interruption does

not “persist beyond a reasonable period of time,” id. at pt. 36 app. C § 36.211.

      The defendant falls within this narrow exception. In the complaint, Gomez

alleged just one instance when a Dade voice-guidance system failed: the Subject

ATM’s misfire in July 2013. The complaint and declarations offer no other

concrete examples of a malfunction prior to suit. This one breakdown, standing

alone, is the very essence of an “isolated or temporary” interruption exempt from

liability. 28 C.F.R. § 36.211(b). To lend this view more credence, defendant

produced statements that the ATM was retrofitted and ready for service before and

after July 2013. Employees also declared that they followed company policy to

keep all ATMs in working order, and though Gomez claims the policy was

window-dressing, he offers no evidence in support. Because he marshalled proof

of just one ATM malfunction—but no evidence regarding other technical

glitches—Gomez has not raised a genuine dispute of fact regarding defendant’s



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ADA compliance. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact . .

. is genuinely disputed must support the assertion by citing to particular parts of

materials in the record . . . .”); AFL-CIO v. City of Miami, 637 F.3d 1178, 1191−92

(11th Cir. 2011) (dismissing where plaintiff failed to adduce evidence proving

conspiracy to infringe constitutional rights). The trial court was correct to dismiss

the case for lack of standing.

      Plaintiff’s other allegations do not move the dial. Gomez claimed, for

instance, that additional ATMs malfunctioned when tested in July 2013. Yet

plaintiff’s complaint and declaration do little to support the claim: The pleadings

do not reveal who tested the other ATMs for Gomez or where those machines were

located, and though plaintiff’s declaration confirms that the Subject ATM broke

down once prior to suit, the document does not mention any other pre-suit

malfunctions. Without evidence to support his side of the story, Gomez cannot

refute that defendant’s other ATMs complied with the ADA. See Fed. R. Civ. P.

56(c)(1)(A).

      Gomez also claimed standing based on the malfunction of a second ATM

following the motion to dismiss. But again, even conceding that the machine

actually failed, Gomez has not shown this was anything more than an isolated

interruption in service. See 28 C.F.R. § 36.211(b). Furthermore, the law requires

plaintiffs to prove that they had standing at the time the complaint was filed.



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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180

(2000) (holding standing established at “outset of the litigation”); Focus on the

Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003)

(holding standing established at time complaint is filed); Cleveland Branch,

NAACP v. City of Parma, 263 F.3d 513, 524−25 (6th Cir. 2001) (same). If Gomez

wished to claim standing based on the malfunctions of the Subject ATM and

second ATM together, he could have amended his complaint to include both

examples. Gomez declined to do so, however, even though the trial court

dismissed his case without prejudice.

       Finally, the court notes a key difference between this case and Sawczyn v.

BMO Harris Bank National Ass’n, 8 F. Supp. 3d 1108 (D. Minn. 2014), which

Gomez recommended to the trial court.3 There, plaintiff visited two ATMs prior to

suit and found that neither had a functioning voice system. Id. at 1110, 1112.

During litigation, defendant argued that the claim was moot because it fixed four

voice systems after learning they were broken. Id. at 1113−14. The court refused

to dismiss, however, because plaintiff planned to return to the offending ATM and

the bank could not prove that it repaired all outstanding compliance issues. Id.

Sawczyn did not mention § 36.211(b) or analyze its effect on injury-in-fact.

       3
          Gomez cited Sawczyn not to prove he had constitutional standing, but to show that his
claim was not moot. We do not address mootness because we agree with the trial court that
Gomez lacked standing to bring his case. We thus distinguish Sawczyn to the extent it found
plaintiff had standing to maintain an ADA action.


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      By contrast, Gomez alleged that he visited one machine one time before

bringing suit. And unopposed evidence shows the Subject ATM worked both

before and after plaintiff’s visit. Unlike Sawczyn, where plaintiff alleged multiple

malfunctions before filing his case, Gomez alleged just one service interruption.

This case falls squarely within the saving ambit of § 36.211(b).

                               III.   CONCLUSION

      We again commend plaintiff’s effort to enforce the ADA on behalf of the

blind community. As the statute is written, private citizens bear the brunt of the

enforcement burden, and Mr. Gomez is doing his part.

      Nevertheless, even those with the best intentions must satisfy the minima of

constitutional standing to maintain a claim. Plaintiff’s threadbare allegations do

not clear the bar, and as a consequence, the trial court correctly dismissed the case

for lack of jurisdiction.

      AFFIRMED.




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