IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20211

LISA MABARY,

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 Act1 (“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.

United States Court of Appeals

Fifth Circuit

FILED

November 5, 2014

Lyle W. Cayce

Clerk

 

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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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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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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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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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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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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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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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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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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 preamendment “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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“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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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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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 case1 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 

1 Arguments 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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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 

2 Indeed, 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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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 caseor-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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 Case: 13-20211 Document: 00512827580 Page: 16 Date Filed: 11/05/2014