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Carello v. Aurora Policemen Credit Union

United States Court of Appeals, Seventh Circuit

July 15, 2019

Matthew Carello, Plaintiff-Appellant,
v.
Aurora Policemen Credit Union, Defendant-Appellee.

          Argued February 21, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:17-cv-09346 - Thomas M. Durkin, Judge.

          Before Easterbrook, Sykes, and Barrett, Circuit Judges.

          BARRETT, CIRCUIT JUDGE.

         Matthew 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.

         I.

         Matthew 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.

         The 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 services.

         Carello 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 in fact.

         II.

         The 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).

         This 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).

         We can 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.

         Carello 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 ...


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