No. 13-679

IN THE

Supreme Court of the United States

FIRST NATIONAL BANK OF WAHOO, andMUTUAL FIRST FEDERAL CREDIT UNION,

Petitioners,v.

JAREK CHARVAT, Individually and on Behalf ofAll Others Similarly Situated,

Respondent.

On Petition for a Writ of Certiorarito the U.S. Court of Appeals

for the Eighth Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATIONAND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Richard A. Samp (Counsel of Record)Cory L. AndrewsWashington Legal Foundation2009 Massachusetts Ave., NWWashington, DC 20036202-588-0302rsamp@wlf.org

Date: January 6, 2014

QUESTION PRESENTED

Whether Congress has the authority to conferArticle III standing to sue when the plaintiff suffers noconcrete harm and alleges as an injury only a bare,technical violation of a federal statute.

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TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE PETITION . . . 11

I. Review Is Warranted Because theQuestion Presented Raises an Important,Frequently Recurring Issue That IsCentral to Determining Whether ArticleIII Imposes Meaningful Limitations onthe Judiciary’s Exercise of Jurisdiction . . . . 11

A. The Decision Below Conflicts withDecisions of This Court and OtherFederal Appeals Courts . . . . . . . . . . . 13

B. Charvat Has Not Suffered an“Informational” Injury of the SortThat Can Give Rise to Article IIIInjury-in-Fact . . . . . . . . . . . . . . . . . . . 17

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Page

C. Whether Charvat Has Suffered aMonetary Loss Directly Traceableto Petitioners’ Conduct Was NotDecided Below and Is Not Beforethe Court, but He Clearly HasSuffered No Such Injury . . . . . . . . . . 19

II. The Petition Provides a Good Vehicle forDeciding the Question Presented; InParticular, It Raises None of theComplicating Fiduciary Duty QuestionsThat Were Present in First American . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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TABLE OF AUTHORITIESPage(s)

Cases:

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) . . . . . . . . . . . . . 1, 10, 20, 21

Federal Election Comm’n v. Atkins, 524 U.S. 11 (1998) . . . . . . . . . . . . . . . . . . . . . 18, 19

First American Fin. Corp. v. Edwards, 610 F.3d 514 (9th Cir. 2010), cert. granted, 131 S. Ct. 3022 (2011) . . . 4, 7, 23, 24

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . 8, 15, 16, 22, 24

Michoud v. Girod, 45 U.S. 503 (1846) . . . . . . . . . . . . . . . . . . . . . . . . 24

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) . . . . . . . . . 13, 14, 15, 16, 20, 22

Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . . . . . . . . . . 8, 16

Whitmore v. Arkansas, 495 U.S. 149 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 8

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Page(s)

Statutes and Constitutional Provisions:

U.S. Const., Art. III . . . . . . . . . . . . . . . . . . . . passim

Electronic Fund Transfer Act (EFTA) . . . . . . passim15 U.S.C. § 1693b(d)(3)(B)(i) & (ii) (2012) . . . 315 U.S.C. § 1693b(d)(3)(B) (2013) . . . . . . . . . 315 U.S.C. § 1693b(d)(3)(C) . . . . . . . . . . . . 9, 2115 U.S.C. § 1693m(a)(2)(A) . . . . . . . . . . . 3, 1215 U.S.C. § 1693m(a)(2)(B) . . . . . . . . . . . . . . 315 U.S.C. § 1693m(a)(3) . . . . . . . . . . . . . . . . . 3

Freedom of Information Act, 5 U.S.C. § 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. . . . . . . . . . . . . . . . . . 23, 24

Miscellaneous:

THE FEDERALIST NO. 47 (J. Madison) . . . . . . . . . . . 11

John Roberts, Article III Limits on Statutory Standing, 42 DUKE L.J. 1219 (1993) . . . . . . . . . . 17

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK UNIV. L. REV. 881 (1983) . . . . . . . . . 11

BRIEF OF WASHINGTON LEGAL FOUNDATIONAND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

__________

INTERESTS OF AMICI CURIAE

The Washington Legal Foundation (WLF) is anon-profit public interest law and policy center withsupporters in all 50 states.1 WLF devotes a substantialportion of its resources to defending free enterprise,individual rights, and a limited and accountablegovernment.

To that end, WLF has frequently appeared inthis and other federal courts to urge courts to confinethemselves to deciding cases that fall within theirjurisdiction as set forth in Article III of the U.S.Constitution. See, e.g., Clapper v. Amnesty Int’l USA,133 S. Ct. 1138 (2013); Boumediene v. Bush, 553 U.S.723 (2008); Al-Haramain Islamic Found. v. Obama,705 F.3d 845 (9th Cir. 2012); ACLU v. NSA, 493 F.3d644 (6th Cir. 2007), cert. denied, 552 U.S. 1179 (2008).

The Allied Educational Foundation (AEF) is anon-profit charitable foundation based in Englewood,New Jersey. Founded in 1964, AEF is dedicated topromoting education in diverse areas of study, such as

1 Pursuant to Supreme Court Rule 37.6, amici state thatno counsel for a party authored this brief in whole or in part; andthat no person or entity, other than amici and their counsel, madea monetary contribution intended to fund the preparation orsubmission of this brief. All parties have consented to this filing;letters of consent have been lodged with the Court. More than 10days prior to the due date, counsel for amici provided counsel forRespondent with notice of amici’s intent to file.

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law and public policy, and has appeared as amicuscuriae in this Court on a number of occasions.

Amici are concerned that the decision below, by conferring Article III standing on plaintiffs whosuffered no concrete harm, dramatically expands thejudicial power—at the expense of the ExecutiveBranch—by assigning to the courts the power toenforce federal statutes in contexts far removed fromwhat has traditionally been understood to constitute anadversarial judicial proceeding. Unless reversed bythis Court, the decision below will authorizeindividuals to invoke federal court jurisdiction based onalleged injuries consisting of little more than an affrontto their sensibilities caused by the belief that someoneis not complying with federal law.

STATEMENT OF THE CASE

Petitioners are two small Nebraska financialinstitutions, First National Bank of Wahoo (“FirstNational”) and Mutual First Federal Credit Union(“Mutual First”), that are alleged to have violated theElectronic Fund Transfer Act (EFTA) by failing to postadequate warnings that they would charge fees tocertain users of their automated teller machines(ATMs). Respondent Jarek Charvat filed suits infederal district court against both institutions based onthe alleged violations, and he seeks to represent a classconsisting of all individuals who incurred fees for usingone of five ATMs during the class period. Petitionersseek review of the Eighth Circuit’s determination thatCharvat has Article III standing to maintain the suits.

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At the time the ATM transactions occurred in2012, EFTA required ATM operators that chargedtransaction fees to provide two forms of notice at thetime of the transaction: (i) a physical sign (usually asticker) “on or at” the ATM; and (ii) a notice “on thescreen . . . after the transaction is initiated and beforethe consumer is irrevocably committed to completingthe transaction.” 15 U.S.C. § 1693b(d)(3)(B)(i) & (ii)(2012). As the courts below found, Charvat does notcontest that both First National and Mutual Firstsupplied the required on-screen notification and thathe knew in advance that he would incur a $2.00 fee ifhe completed the ATM withdrawals in question. Pet.App. 3a, 19a. He alleged, however, that none of the fiveATMs from which he withdrew cash complied withEFTA’s physical-sign requirement.2 Charvat’scomplaints did not seek recovery of any actual damagesincurred as a result of Petitioner’s alleged EFTAviolations; rather, he sought to recover the statutorydamages provided by EFTA, as well as costs andattorney’s fees.3

That Charvat had advance knowledge of, andagreed to pay, the ATM fees is best illustrated by his

2 Congress amended EFTA in December 2012 to eliminatethe physical-sign requirement. See 15 U.S.C. § 1693b(d)(3)(B)(2013).

3 The statute provides that each violation of EFTA’s noticeprovision renders an ATM operator liable to an individual plaintiffin “an amount not less than $100 nor greater than $1,000.” 15U.S.C. § 1693m(a)(2)(A). If the suit is certified as a class action,EFTA limits total statutory damages to no more than $500,000. 15 U.S.C. § 1693m(a)(2)(B). Prevailing plaintiffs are also entitledto recover costs and attorney’s fees. 15 U.S.C. § 1693m(a)(3).

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lawsuit against Mutual First. The original complaint was based on a single transaction at an ATM operatedby Mutual First. After filing suit, Charvat withdrewcash from two additional Mutual First ATMs. He thenamended his complaint to add claims that the secondand third transactions (for each of which he paid a$2.00 fee) also violated EFTA because the ATMs inquestion allegedly failed to display the requiredphysical sign. But having already filed a lawsuitalleging inadequate notice at a Mutual First ATM, andhaving agreed to proceed with the second and thirdtransactions after receiving on-screen notification ofthe $2.00 fee, Charvat quite obviously entered intothose transactions with full knowledge that he wouldbe charged a fee. Indeed, the only plausibleexplanation for his actions is a desire to increase hisstatutory damage claim by tripling the potential size ofthe plaintiff class in his pending lawsuit.

In a Memorandum and Order issued in June2012 in the First National action, the district courtconcluded that Charvat lacked Article III standingbecause his complaint failed to allege injury-in-fact. Pet. App. 12a-24a. The court explained that whileEFTA granted consumers a right not to be chargedATM fees unless they were informed of the fees inadvance, Charvat failed to allege any infringement ofthat informational right because “[t]he fee informationwas available to him through the on-screen notice.” Id.at 19a. The court also concluded that Charvat couldnot assert standing based on injury-in-fact suffered bythe federal government, both because EFTA was notadopted for the purpose of protecting federal interestsand because “EFTA is not a qui tam statute thatclearly assigns the federal government’s standing to

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private actors.” Id. at 20. It stated that Charvat’s“interest appears to be solely in the enforcement of theEFTA statute,” an interest the court deemedinsufficient to establish Article III standing in theabsence of concrete injury-in-fact. Id. at 21a.

The district court nonetheless stayed final actionon First National’s motion to dismiss until after thisCourt issued its anticipated First American decision.4 It explained, “In both First American and here, thequestion remains whether a violation of a statute,without an alleged injury in fact, is in itself sufficientto create standing under Article III.” Id. at 23a. ThisCourt ended up not deciding the question: on June 28,2012, the Court dismissed, as improvidently granted,the writ of certiorari in First American. 132 S. Ct. 2536(2012). The district court thereafter dismissed thelawsuits against both First National and Mutual Firstfor lack of Article III standing, explicitly relying on thereasoning contained in its June 2012 Memorandumand Order. Id. at 27a, 28a-32a, 33a.

The Eighth Circuit reversed, finding thatCharvat had adequately alleged injury-in-fact and thushad standing to maintain his lawsuits. Pet. App. 1a-11a. On appeal, Charvat based his Article III standingclaim on two independent injuries allegedly caused byPetitioners: (1) an economic injury (the payment of the$2.00 fee); and (2) an informational injury (failure toprovide him with the statutorily required notice). The

4 In November 2011, the Court heard oral arguments in acase raising very similar Article III standing issues. FirstAmerican Fin. Corp. v. Edwards, 610 F.3d 514 (9th Cir. 2010), cert.granted, 131 S. Ct. 3022 (2011).

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appeals court did not address the alleged economicinjury because Charvat had not raised that injuryclaim in the district court; it assumed, withoutdeciding, that Charvat had waived the economic injuryclaim. Id. at 6a. It nonetheless found that Charvatalleged a cognizable injury-in-fact by allegingnoncompliance with EFTA’s physical-sign requirement,without regard to whether noncompliance deprivedCharvat of any specific information that he wasstatutorily entitled to receive. Id. at 7a. The appealscourt held that a plaintiff establishes injury-in-fact byalleging “denial of a statutory right to receiveinformation,” regardless whether the defendantsupplied the same information by other means. Id. Itconcluded:

Once Charvat alleged a violation of the noticeprovision of the EFTA in connection with hisATM transactions, he had standing to claimdamages. . . . Thus, the district court erred byrequiring Charvat to demonstrate an injurybeyond Appellees’ failure to provide theprescribed “on machine” notice.

Id. at 7a-8a.

SUMMARY OF ARGUMENT

This case raises a constitutional issue ofexceptional importance. Federal courts have issuedsharply conflicting decisions regarding whether andwhen individuals can validly claim Article III standingto sue for violations of federal statutes that wereadopted for their benefit. The court below held thatany such violation is sufficient to create standing,

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without regard to whether the violation caused him tosuffer a concrete harm. Other courts have definedstanding more narrowly and have refused to find thata plaintiff suffers the requisite injury-in-fact unless thestatutory violation inflicts some concrete harm. Inlight of the frequency with which this issue arises andthe threat that expanded standing rules pose toseparation of powers principles, review is warranted toresolve the conflict.

Indeed, the Court granted a writ of certiorari in2011 in First American to address this very issue. InJune 2012, the Court dismissed the writ asimprovidently granted, thereby preventing the Courtfrom resolving the issue. This case provides the Courtwith an excellent opportunity to revisit the issue. Itraises none of the fiduciary duty issues that existed inFirst American and that may have led to dismissal ofthe writ. Moreover, it raises few, if any, contestedfactual issues. Although Charvat claims to havesuffered injury, he can point to nothing concrete (suchas the denial of specific information that he wasentitled by statute to receive) but rather points to theaffront he suffered when a statute adopted for hisprotection was violated. The case thus squarelypresents the issue of whether such an affront is asufficient injury-in-fact to satisfy standingrequirements.

Article III, § 2 of the U.S. Constitution maintainsthe separation of powers among the three branches ofthe federal government by extending the “judicialPower” of the United States only to “Cases” and“Controversies.” Standing to sue is part of what isrequired to establish a justiciable case. Whitmore v.

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Arkansas, 495 U.S. 149, 155 (1990). The decision belowthreatens a significant relaxation of standingrequirements—and thereby threatens separation ofpowers principles—by authorizing federal courts toenforce federal statutes at the behest of claimants whohave not suffered a concrete injury as a result of thealleged statutory violation.

True, the injury required by Article III “mayexist solely by virtue of statutes creating legal rights,the invasion of which creates standing.” Warth v.Seldin, 422 U.S. 490, 500 (1975). But the Court hasexplained that the statutorily-created legal rights ithas in mind are “concrete, de facto injuries that werepreviously inadequate in law” but which now (by virtueof the newly adopted statute) have been “elevat[ed] tothe status of legal cognizable injuries.” Lujan v.Defenders of Wildlife, 504 U.S. 555, 578 (1992). Sufficeto say, Charvat does not allege any such injury. Ratherhis alleged “informational injury” consists of the failureof financial institutions with whom he conductedbusiness to comply with statutory requirements, notthe failure to provide him with specific information towhich he was entitled. Under this Court’s precedents,Charvat would have suffered informational injury-in-fact had Petitioners’ alleged statutory violationsrendered him unaware that he would be charged a feefor his ATM transactions—but that did not happen. Review is warranted to resolve the conflict between thedecision below and the Court’s case law governingArticle III standing.

The Eighth Circuit deemed it significant thatEFTA explicitly prohibited ATM operators fromimposing an ATM fee without first providing the two

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forms of notice mandated by the statute. Pet. App. 8a. See 15 U.S.C. § 1693b(d)(3)(C). The Court stated that Charvat suffered an injury-in-fact when he paid a $2.00fee that Petitioners were not permitted to chargebecause they did not fully comply with the statutoryprerequisites. Pet. App. 8a. If accepted, the EighthCircuit’s rationale would empower Congress to grantroving commissions entitling private individuals to filesuit for virtually any violation of federal law. Forexample, Congress could prohibit a merchant fromcharging for the goods it sells unless it complies fullywith the scores of federal regulatory statutes thatgovern most businesses. Under the Eighth Circuit’srationale, any consumer could assert that the statuteprohibited the merchant from charging for its goodsbecause it violated one of the many applicable federalregulations, and could thereby claim injury-in-factbased on being required to pay for goods he purchased.

The Eighth Circuit’s rationale is sharply at oddswith this Court’s past understanding of Congress’spower to confer Article III standing on individuallitigants. The Court has consistently rejectedassertions that courts may entertain citizen suits tovindicate the public’s nonconcrete interest in theproper administration of the laws, even when Congresshas explicitly authorized such suits. Payments madeby a plaintiff to a merchant for goods or servicesprovided by the merchant do not strengthen theplaintiff’s Article III standing claims, if the paymentswere made voluntarily and if, in return for payment,the plaintiff received everything he was entitled toreceive under the applicable statute (including allrequired information).

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Indeed, the Court recently rejected claims,arising under analogous circumstances, that expenditures voluntarily incurred by plaintiffs weresufficient to create Article III standing. See Clapper v.Amnesty Int’l USA, 133 S. Ct. 1138 (2013). The Courtreasoned that such “self-inflicted injuries” cannot bedeemed fairly traceable to the defendants’ allegedlyillegal conduct—even though the expenditures areincurred to reduce the likelihood that the plaintiffsmight be adversely affected by the allegedmisconduct—if the plaintiffs have not otherwiseestablished injury-in-fact. 133 S. Ct. at 1152-53.

Similarly, the ATM fees paid by Charvat cannotbe deemed fairly traceable to Petitioners’ allegedstatutory violations when the fees were paidvoluntarily for services rendered and after Petitionersfully informed Charvat of their intent to impose fees. Indeed, with respect to some and perhaps all of hisATM transactions, Charvat was fully aware thatPetitioners were not in compliance with the physical-sign requirement, yet he nonetheless proceededvoluntarily with transactions that he knew wouldresult in a $2.00 service fee. Under thosecircumstances, Clapper indicates that the feesvoluntarily incurred by Charvat were not fairlytraceable to the alleged EFTA violation. If the Court isinterested in addressing the monetary loss issue,review is also warranted to resolve this conflictbetween Clapper and the decision below.

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REASONS FOR GRANTING THE PETITION

I. Review Is Warranted Because the QuestionPresented Raises an Important, FrequentlyRecurring Issue That Is Central toDetermining Whether Article III ImposesMeaningful Limitations on the Judiciary’sExercise of Jurisdiction

The principle of separation of powers has longbeen a central feature of our federal government. Bydenying any one branch of government excessivepowers, the Framers sought to prevent despotism. Inpraising the importance of separating power within thegovernment, James Madison stated, “[N]o politicaltruth is certainly of greater intrinsic value, or isstamped with the authority of more enlightenedpatrons of liberty.” The FEDERALIST No. 47 (J.Madison). Article III, § 2 of the Constitution directlylimits judicial power by limiting its exercise to actual“Cases” and “Controversies.”

As Justice Scalia has pointed out, the doctrine ofstanding is “a crucial and inseparable element” ofseparation of powers principles, a doctrine whosedisregard “will inevitably produce . . . anoverjudicialization of the processes of self-governance.” Antonin Scalia, The Doctrine of Standing as anEssential Element of the Separation of Powers, 17SUFFOLK UNIV. L. REV. 881 (1983). The limits ofjudicial power have been sorely tested in recent yearsby the proliferation of federal statutes that can beinterpreted as authorizing private citizens to vindicatethe rule of law, without regard to whether they have

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suffered a concrete injury. Unless courts adherestrictly to standing doctrine principles, the inevitabletendency of such statutes is to transfer to the judiciaryresponsibility for ensuring that the laws are faithfullyexecuted, a role assigned by the Founders to theExecutive Branch.

The EFTA statute at issue here raises just suchconcerns. It explicitly provides a right of action toconsumers against “any person who fails to comply”with EFTA provisions “with respect to” thoseconsumers. 15 U.S.C. § 1693m(a). Indeed, it stronglyencourages the filing of such consumer suits byauthorizing an award of statutory damages (of between$100 and $1,000), costs, and a “reasonable attorney’sfee” to prevailing plaintiffs, in addition to any actualdamages sustained by the plaintiff. Id. The inevitableresult is that opportunistic litigants such as Charvatwill seek to become parties to an ATM transaction inwhich an EFTA violation is committed, and thereafterto file a profitable EFTA lawsuit. Under thosecircumstances, courts must be vigilant to ensure thatArticle III standing requirements are adhered to;otherwise, courts will find themselves being asked toadminister federal law (a role assigned to the ExecutiveBranch) instead of adjudicating Cases or Controversiesinitiated by injured plaintiffs.

The Petition lists numerous federal statutes thatinclude statutory damages provisions that arefunctionally identical to EFTA’s statutory damagesprovision. Pet. 9-12. Amici will not repeat that listhere. Suffice to say that the economic incentives to filesuit created by statutory damages provisions are

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sufficiently large that the issue faced by the EighthCircuit—whether Article III jurisdiction exists withrespect to a plaintiff who can point to no concreteinjury but alleges that the defendants violated federallaw during the course of a transaction in which he wasdirectly involved—arises very frequently. While casesbased on a fact pattern identical to the facts of this caseare unlikely to recur frequently—indeed, the December2012 amendment to EFTA means that no such caseswill arise based on events occurring after 2012—thestanding issue raised by the Petition arises frequently,thereby warranting review by this court.

A. The Decision Below Conflicts withDecisions of This Court and OtherFederal Appeals Courts

The Court has explained Article III standingrequirements as follows:

The irreducible constitutional minimum ofstanding contains three requirements. . . . First,and foremost, there must be alleged (andultimately proven) an “injury in fact”—a harmsuffered by the plaintiff that is “concrete” and“actual and imminent, not ‘conjectural’ or‘hypothetical.’ ” . . . Second, there must becausation—a fairly traceable connection betweenthe plaintiff’s injury and the complained-ofconduct of the defendant. . . . And third, theremust be redressability—a likelihood that therequested relief will redress the alleged injury.

Steel Co. v. Citizens for a Better Environment, 523 U.S.

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83, 102-103 (1998) (citations omitted).

Reversing the district court’s determination, theEighth Circuit held that Charvat’s complaintsadequately alleged injury-in-fact. The appeals courtheld, “Once Charvat alleged a violation of the noticeprovisions of the EFTA in connection with his ATMtransactions, he had standing to claim damages.” Pet.App. 7a. It rejected the district court’s determinationthat violation of a statutorily imposed noticerequirement is insufficient “standing alone” toestablish injury-in-fact when the defendantnonetheless supplies the defendant with all therequired information by other means. Id. Rather, therequisite injury-in-fact consists of a plaintiff’s failure toreceive information in the precise manner mandated bythe relevant statute. Id.

Review is warranted because the EighthCircuit’s decision conflicts with many of this Court’sstanding decisions. By focusing on Petitioners’ allegedfailure to comply with all notice requirements in theirdealings with Charvat, the Eighth Circuit failed toanalyze whether that failure imposed any concreteinjuries on Charvat. That mode of analysis conflictssharply with this Court’s decisions requiring a plaintiffto demonstrate that his injury-in-fact is “concrete” and“actual” rather than “conjectural” or “hypothetical.” Inparticular, a plaintiff does not demonstrate injury-in-fact merely by demonstrating a violation of federal law,even a law adopted for his particular benefit; a plaintifflacks standing merely to seek “vindication of the ruleof law.” Steel Co., 523 U.S. at 106. As the Courtexplained:

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[A]lthough a suitor may derive great comfortand joy from the fact that the United StatesTreasury is not cheated, that a wrongdoer getshis just deserts, or that the Nation’s laws arefaithfully executed, that psychic satisfaction isnot an acceptable Article III remedy because itdoes not redress a cognizable Article III injury. Relief that does not remedy the injury sufferedcannot bootstrap a plaintiff into federal court.

Id. at 107 (citations omitted).

Lujan similarly rejected injury-in-fact claimswhere the plaintiff asserted that Congress had imposedprocedural requirements on federal agencies for theirbenefit and thus that they were injured by theagencies’ failures to adhere to the requirements. TheCourt explained:

Vindicating the public interest (including thepublic interest in Government observance of theConstitution and laws) is the function ofCongress and the Chief Executive. The questionpresented here is whether the public interest inproper administration of the laws (specifically,in agencies’ observance of a particular,statutorily prescribed procedure) can beconverted into an individual right by a statutethat denominates it as such, and that permits allcitizens, or for that matter, a subclass of citizenswho suffer no distinctive concrete harms, to sue. If the concrete injury requirement has theseparation-of-powers significance we havealways said, the answer must be obvious: To

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permit Congress to convert the undifferentiatedpublic interest in executive officers’ compliancewith the law into an “individual right”vindicable in the courts is to permit Congress totransfer from the President to the courts theChief Executive’s most important duty, to “takeCare that the Laws be faithfully executed.” Art.II, § 3.

Lujan, 504 U.S. at 576-77. The Eighth Circuit’sdetermination that Charvat established standing byalleging “a violation of the notice provision of the EFTAin connection with his ATM transactions,” Pet. App. 8a,without any showing that the violation inflicted aconcrete injury, conflicts with both Steel Co. and Lujan.

Lujan explicitly held the creation of a statutoryentitlement to sue cannot serve as a substitute for ashowing of concrete injury. The Court explained thatits holding was fully consistent with the principle,enunciated in Warth, that “the injury required byArticle III may exist solely by virtue of statutescreating legal rights, the invasion of which createsstanding.” Id. at 578 (quoting Warth, 422 U.S. at 500). The Court explained that the statutorily-created legalrights it has in mind are “concrete, de facto injuriesthat were previously inadequate in law” but which now(by virtue of the newly adopted statute) have been“elevat[ed] to the status of legal cognizable injuries.” Id. Suffice to say, Charvat does not allege any suchinjury; he alleges a violation of a statutory “right” (theposting of a physical sign at the ATM machines heused), but he fails to explain how that violationinflicted a concrete injury on him. See John Roberts,

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Article III Limits on Statutory Standing, 42 DUKE L. J.1219, 1228 (1993) (explaining that the citizen suitprovision at issue in Lujan did not seek to elevate thestatus of concrete, de facto injuries but rather “simplyauthorize[d] suit to vindicate rights which must befound elsewhere.”).

The Petition notes that the decision below alsodirectly conflicts with decisions from the Second, Thirdand Fourth Circuits. Pet. 13-15. Although none of thecited cases involve EFTA claims, there can be littledoubt that the federal appeals courts have adoptedsharply divergent approaches to injury-in-fact issuesthat arise when Congress creates statutory rights tosue for alleged violations of statutory duties. Theconflict arises from fundamental disagreementsregarding broadly applicable Article III standingrequirements rather than from an analysis of statute-specific provisions. Accordingly, review is alsowarranted to resolve that conflict.

B. Charvat Has Not Suffered an“Informational” Injury of the SortThat Can Give Rise to Article IIIInjury-in-Fact

When Congress adopts a statute grantingindividuals a right of access to information, a denial ofaccess undoubtedly constitutes injury-in-fact sufficientto support Article III standing. An obvious example isthe Freedom of Information Act, 5 U.S.C. § 552;individuals are injured when the federal governmentdenies them access to documents to which the FOIAgrants them a right of access. Similarly, EFTA grants

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ATM users the right to information regarding theexistence and amount of ATM fees. But Petitionersprovided Charvat with the required information, so hesimply has no basis for claiming an informationalinjury.

In support of its conclusion that Charvatsuffered an “informational injury” sufficient to meetArticle III standing requirements, the Eighth Circuitcited Fed. Election Comm’n v. Akins, 524 U.S. 11, 21(1998). Akins is inapposite and provides no support forCharvat’s injury-in-fact claim.

Akins upheld the plaintiffs’ standing to sue afteridentifying specific information to which they had beendenied access and which they claimed a right of accessunder applicable federal election laws:

The “injury in fact” that respondents havesuffered consists of their inability to obtaininformation—lists of AIPAC donors (who are,according to AIPAC, its members), andcampaign-related contributions andexpenditures—that on respondents’ view of thelaw, the statute requires that AIPAC makepublic.

524 U.S. at 21. Charvat has made no similar claimwith respect to any information that he was unable toobtain from Petitioners. The Eighth Circuit cited Akinsfor the proposition that “a plaintiff suffers an ‘injury infact’ when the plaintiff fails to obtain informationwhich must be publicly disclosed pursuant to astatute.” Pet. App. 7a (quoting Akins, 524 U.S. at 21).

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But in the absence of a citation to specific information that he “fail[ed] to obtain,” Charvat finds no support inAkins.

C. Whether Charvat Has Suffered aMonetary Loss Directly Traceable toPetitioners’ Conduct Was NotDecided Below and Is Not Before theCourt, but He Clearly Has SufferedNo Such Injury

Charvat did not assert in the district court thathis payment of a $2.00 fee for each ATM transactionconstituted injury-in-fact. Although he attempted toraise that claim for the first time in the Eighth Circuit,Petitioners objected that Charvat had waived the claimby failing to raise it in the district court. The EighthCircuit did not address the waiver issue and did nottake Charvat’s monetary payments into account whendetermining that he had suffered injury-in-fact. Accordingly, the Court need not consider the monetaryloss claim when deciding whether to grant review. Itcan review the injury-in-fact claims actually consideredby the Eighth Circuit without reaching the monetaryloss claim. Should the Court determine that theEighth Circuit misapplied standing law in concludingthat Charvat suffered an informational injurysufficient to support Article III standing, it can remandthe case to the Eighth Circuit to determine in the firstinstance: (1) whether Charvat has waived his monetaryloss claim; and (2) whether that claim is sufficient tosupport Article III standing. Accordingly, the existenceof the monetary loss claim should not deter the Courtfrom granting the Petition.

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In any event, Charvat’s belated assertion thathis monetary losses constituted injury-in-fact iswithout merit. It is undisputed that Charvatvoluntarily agreed to pay the $2.00 fee for each ATMtransaction after being fully informed that he would becharged the fees if he continued with his transactions. Under those circumstances, any “loss” suffered byCharvat can only be attributed to his voluntarydecisions to pay the fees, not to Petitioners’ allegedstatutory violations. A plaintiff does not establishArticle III standing when, as here, the evidence showsthat his monetary losses were not directly attributableto the defendants’ complained-of conduct. Steel Co.,523 U.S. at 102-03.

Indeed, the Court recently rejected claims,arising under analogous circumstances, that expenditures voluntarily incurred by plaintiffs weresufficient to create Article III standing. See Clapper v.Amnesty Int’l USA, 133 S. Ct. 1138 (2013). The Courtreasoned that such “self-inflicted injuries” cannot bedeemed fairly traceable to the defendants’ allegedlyillegal conduct—even though the expenditures areincurred to reduce the likelihood that the plaintiffsmight be adversely affect by the alleged misconduct—ifthe plaintiffs have not otherwise established injury-in-fact. 133 S. Ct. at 1152-53.

Similarly, the ATM fees paid by Charvat cannotbe deemed fairly traceable to Petitioners’ allegedstatutory violations when the fees were paidvoluntarily for services rendered and after Petitionersfully informed Charvat of their intent to impose fees. Indeed, with respect to some and perhaps all of his

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ATM transactions, Charvat was fully aware thatPetitioners were not in compliance with the physical-sign requirement, yet he nonetheless proceededvoluntarily with transactions that he knew wouldresult in a $2.00 service fee. Under thosecircumstances, Clapper indicates that the feesvoluntarily incurred by Charvat were not fairlytraceable to the alleged EFTA violation. If the Court isinterested in addressing the monetary loss issue,review is warranted to resolve this conflict betweenClapper and the decision below.

Charvat’s monetary loss claim is notstrengthened by an EFTA provision that prohibitsATM operators from imposing an ATM fee without firstproviding the two forms of notice mandated by thestatute. See 15 U.S.C. § 1693b(d)(3)(C). Despitemaintaining that it would not address the potentiallywaived monetary loss claim, the appeals court relied onthis statutory provision to suggest that Charvat did, infact, suffer a monetary loss: “At the time of Charvat’stransactions, the EFTA created a right to a particularform of notice before an ATM transaction fee could belevied. If that notice was not provided and a fee wasnonetheless charged, an injury occurred, and thestatutory damages are directly related to theconsumer’s injury.” Pet. App. 8a.

But the Eighth Circuit failed to explain howCharvat could be deemed to have suffered a concreteinjury by virtue of having received specific informationin one form but not in a second form; he still was notdeprived of any of the statutorily required information. His only “injury” consists of the psychic injury that

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accompanies knowledge that a firm with which one hasconducted business has not fully complied with the law. As Lujan and Steel Co. make clear, an injury to one’sinterest in seeing the law fully complied with cannotsatisfy Article III standing requirements.

If accepted, the Eighth Circuit’s rationale wouldempower Congress to grant roving commissionsentitling private individuals to file suit for virtuallyany violation of federal law. For example, Congresscould prohibit a merchant from charging for the goodsit sells unless it complies fully with the scores offederal regulatory statutes that govern mostbusinesses: e.g., civil rights laws, environmental laws,and laws governing employee working conditions, suchas the Fair Labor Standards Act and the OccupationalSafety and Health Act. Under the Eighth Circuit’srationale, any consumer could assert that the statuteprohibited the merchant from charging for its goodsbecause it violated one of the many applicable federalregulations, and could thereby claim injury-in-factbased on being required to pay for goods he purchased. This Court has repeatedly rejected assertions thatCongress could, by means of adopting such statutes,largely eliminate standing requirements by placingfederal law enforcement duties in the hands of privateindividuals. Such individuals have not suffered any“concrete” injuries, as that term is normallyunderstood.

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II. The Petition Provides a Good Vehicle forDeciding the Question Presented; InParticular, It Raises None of theComplicating Fiduciary Duty QuestionsThat Were Present in First American

The reasons why the Court dismissed the FirstAmerican writ as improvidently granted have not beenpublicly revealed. Many have speculated, however, that the Court may have dismissed the writ becauseresolution of the case was unduly complicated by thepresence of fiduciary duty issues. If so, this Petitionprovides an attractive alternative vehicle for decidingthe issue that the Court wished to address when itgranted review in First American; there are no similarfiduciary duty issues lurking in this case.

First American addressed claims by individualhomebuyers that their title insurance companies paidkickbacks to title agents for referrals. The homebuyersdid not attempt to demonstrate actual damages causedby the kickback scheme. Indeed, they would have hadgreat difficulty proving such damages because Ohio(where all the real estate transactions took place) setsthe fees that title insurance companies may charge – soit was highly unlikely that the alleged kickbacksresulted in higher fees being paid by homebuyers. Instead, the plaintiffs sought statutory damagesspecified under the Real Estate Settlement ProceduresAct (RESPA), 12 U.S.C. § 2601 et seq., for instances inwhich a title insurance company pays an improperkickback in return for obtaining a plaintiff’s business.

While the Court granted review to determine

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whether such plaintiffs could establish Article IIIstanding in the absence of evidence that they sufferedmonetary damages, the plaintiffs presented significantevidence that: (1) the title insurance companies oweda fiduciary duty of fair dealing to homebuyers; (2) thereexists a long history under the common law ofpresuming that one suffers injury when one’s fiduciarybreaches his duty of loyalty; (3) courts are willing topresume damages even in the absence of directevidence, because such damages can be very hard toprove yet it is widely believed that the victims of suchbreaches of fiduciary duty are highly likely to suffermonetary loss. See, e.g., Michoud v. Girod, 45 U.S. 503,557 (1846) (a beneficiaries may sue trustees for self-dealing to recoup all profits made by the trustee,without regard to proof of loss).

Under those circumstances, the Court may wellhave concluded that the First American plaintiffsmight be able to establish standing under the ruleestablished by Lujan: Congress may create standingwhere it did not previously exist by “elevating to thestatus of legally cognizable injuries concrete, de factoinjuries that were previously inadequate at law.” Lujan, 504 U.S. at 578. In other words, before theadoption of RESPA, homebuyers had no federal causeof action against faithless fiduciaries, but the commonlaw had nonetheless long recognized that suchhomebuyers are presumed to suffer “concrete, de factoinjuries.”

There is no allegation in this case that afiduciary relationship existed between Charvat andPetitioners. Indeed, the very reason that he was

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charged an ATM fee was that he was not a customer ofeither financial institution. The Court will thus be ableto use this case to decide the issues left open followingFirst American, without having to address whether theexistence of fiduciary relationships affects the injury-in-fact inquiry.

CONCLUSION

The Washington Legal Foundation and theAllied Educational Foundation respectfully requestthat the Court grant the Petition.

Respectfully submitted,

Richard A. Samp (Counsel of Record)Cory L. AndrewsWashington Legal Found.2009 Massachusetts Ave, NWWashington, DC 20036202-588-0302rsamp@wlf.org

January 6, 2014