February 21, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:17-cv-09346 -
Thomas M. Durkin, Judge.
Easterbrook, Sykes, and Barrett, Circuit Judges.
BARRETT, CIRCUIT JUDGE.
Carello sued the Aurora Policemen Credit Union, alleging that
accessibility barriers to the Credit Union's website
violate his rights under the Americans with Disabilities Act.
The district court dismissed the claim, holding that Carello
lacked standing to sue. We agree.
Carello is blind. To access visual content on the internet,
he uses a "screen reader/' which reads text aloud to
him. A screen reader, however, works only on websites that
are designed to support its software. Carello claims that a
website run by the Aurora Policemen Credit Union fails to
offer such support.
Credit Union is chartered under the Illinois Credit Union
Act, which requires that membership in a credit union be open
only to groups of people who share a "common bond."
205 ILCS 305/2(1). This includes, for example,
"[p]ersons belonging to a specific association, group or
organization," "[p]ersons who reside in a
reasonably compact and well-defined neighborhood or
community," and "[p]ersons who have a common
employer." Id. at 305/1.1. In accordance with
this law, the Credit Union limits its membership to specified
local city and county employees. Membership is required
before an individual may enjoy any of the Credit Union's
is not eligible for, nor has he expressed any interest in,
membership in the Credit Union. Instead, he is a tester: he
visits websites solely for the purpose of testing compliance
with the Americans with Disabilities Act (ADA), which
prohibits places of public accommodation from discriminating
"on the basis of disability in the full and equal
enjoyment of [their] goods, services, facilities, privileges,
advantages, or accommodations," and requires them to
make "reasonable modifications" to achieve that
standard. See 42 U.S.C. § 12812(a), (b). After
his visits to the Credit Union's website revealed a
potential violation, he sued the Credit Union under the ADA,
seeking injunctive relief as well as costs and attorneys'
fees. The district court granted the Credit Union's
motion to dismiss Carello's claim, holding that Carello
lacked standing to sue because he failed to allege an injury
doctrine of standing imposes a non-negotiable limit on the
power of a federal court. It is rooted in Article III, which
limits a federal court's power to the resolution of
"Cases" or "Controversies." U.S. CONST,
art. Ill. § 2. Because the standing requirement enforces
a constitutional restraint on the judicial power, federal
courts must "always require that a litigant have
'standing' to challenge the action sought to be
adjudicated in the lawsuit" before proceeding to the
merits of a claim. Valley Forge Christian Coll. v. Ams.
United for Separation of Church and State, Inc., 454
U.S. 464, 471 (1982). To establish standing, a
"plaintiff must allege an injury in fact that is
traceable to the defendant's conduct and redressable by a
favorable judicial decision." Casillas v. Madison
Ave. Assocs., 926 F.3d 329, 333 (7th Cir. 2019).
case turns on the injury-in-fact requirement, which the
Supreme Court has described as the "[f]irst and
foremost" element of standing. Steel Co. v. Citizens
for Better Env't, 523 U.S. 83, 103 (1998). To
satisfy this element, Carello must allege that he suffered an
injury that is "both concrete and
particularized." Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1548 (2016). And because he seeks injunctive
relief, Carello must also demonstrate that he faces a
"real and immediate" threat of future injury;
"a past injury alone is insufficient to establish
standing for purposes of prospective injunctive relief."
Simic v. City of Chicago, 851 F.3d 734, 738 (7th
Cir. 2017) (citation omitted).
quickly dispense with one of Carello's challenges to the
district court's standing analysis. According to Carello,
the district court denied him standing because he was a
tester, even though both we and the Supreme Court have made
it clear that tester status does not deprive a plaintiff of
standing. See, e.g., Havens Realty Corp. v. Coleman,
455 U.S. 363, 373-74 (1982); Murray v. GMAC Mortg.
Corp., 434 F.3d 948, 954 (7th Cir. 2006). Carello is
right about the cases, but he is wrong about the district
court's opinion. The district court did not reason-either
explicitly or implicitly-that Carello lacked standing because
he was a tester. Instead, the district court recognized that
while tester status does not defeat standing, it does not
automatically confer it either. A tester must still satisfy
the elements of standing, including the injury-in-fact
requirement. Havens Realty, 455 U.S. at 374-75.
identifies two injuries that he says are each sufficiently
concrete and particularized to constitute an injury in fact:
a dignitary harm stemming from his inability to use the
website and an informational harm resulting from a lack of
access to information on the website. Neither of these
alleged injuries passes the test, although we stress that it
is for a very narrow reason. As the Fourth Circuit recently
held in a nearly identical case, a plaintiff who is
legally barred from using a credit union's
services cannot demonstrate an injury that is ...