Perez v. McCreary, Veselka, Bragg ( 2022 )

Case: 21-50958 Document: 00516432335 Page: 1 Date Filed: 08/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 15, 2022
No. 21-50958
Lyle W. Cayce
Clerk
Mariela Perez, on behalf of herself and all others similarly situated,
Plaintiff—Appellee,
versus
McCreary, Veselka, Bragg & Allen, P.C.; MVBA, L.L.C.,
formerly known as McCreary, Veselka, Bragg & Allen, L.L.C.,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Texas
No. 1:19-CV-724
Before Davis, Smith, and Engelhardt, Circuit Judges.
Jerry E. Smith, Circuit Judge:
McCreary, Veselka, Bragg & Allen (“MVBA”) is a law firm that spe-
cializes in collecting debts owed to Texas local governments. In 2019, it sent
a letter to Mariela Perez demanding that she pay several hundred dollars in
delinquent utility debt that she owed to the City of College Station. But limi-
tations on that debt had run, and the letter did not disclose that fact. So Perez
sued MVBA under the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692e. She also sought to certify a class of Texans with time-
barred debt who had received the same form letter. The district court granted
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that request, and MVBA appealed under Federal Rule of Civil Proce-
dure 23(f ).
On appeal, MVBA does not contest Perez’s standing. But we have an
“independent obligation to assure that standing exists, regardless of whether
it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S.
488, 499 (2009). Perez has standing only if the letter inflicted an injury with
a “close relationship to a harm traditionally recognized as providing a basis
for a lawsuit in American courts.” TransUnion LLC v. Ramirez, 141 S. Ct.
2190, 2200 (2021) (quotation omitted). Because Perez hasn’t shown that she
has suffered such an injury, we vacate the class-certification order and
remand with instruction to dismiss for want of jurisdiction.
I.
When Perez was living in College Station, she incurred $486.57 in
utility bills that she did not pay. Later, the city hired MVBA to collect the
debt. The firm tried to do so by sending Perez a form letter demanding pay-
ment. Notably, her debt had become delinquent four years and one day before
MVBA sent its letter. Under Texas law, that meant it was unenforceable. See
Tex. Civ. Prac. & Rem. Code § 16.004(a). But the letter failed to men-
tion that fact.
MVBA soon paid a price for its omission. Perez had previously filed
FDCPA suits against three other defendants. And when she received the
form letter, she sued MVBA, too.
Perez alleged that the firm had violated the FDCPA by making a mis-
representation in connection with an attempt to collect her debts. See
15 U.S.C. § 1692e. She also sought to represent a class of Texas consumers
who had received the same form letter from MVBA in connection with their
time-barred debts. And she requested that she be awarded statutory dam-
ages, a declaration that MVBA’s debt-collection practices violate the
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FDCPA, costs, and attorneys’ fees.
Importantly for present purposes, Perez’s complaint highlighted three
injuries that she suffered as a result of MVBA’s letter. First, she maintained
that the letter “created a significant risk of harm” in that she might have paid
her time-barred debts. Second, she claimed that the letter misled and con-
fused her about the enforceability of her debt. Finally, she said that the letter
required her to consult an attorney to determine the enforceability of the
debt.
After discovery, Perez moved to certify her class. Both parties also
moved for summary judgment. As relevant here, MVBA contended that
Perez did not have standing to bring suit because she had not suffered a con-
crete injury-in-fact under Spokeo, Inc. v. Robins, 578 U.S. 330 (2016). While
those motions were pending, the Supreme Court decided TransUnion.
MVBA brought that decision to the attention of the district court in a motion
for leave to file supplemental authority that reiterated its position that Perez
had not suffered an injury in fact.
One day later, the district court ruled on the three motions. First, it
rejected MVBA’s claim that Perez lacked standing to bring suit. It held that
the violation of Perez’s statutory rights under the FDCPA constituted a con-
crete injury-in-fact because those rights were substantive, not procedural. In
the alternative, it maintained that Perez’s confusion qualified as a concrete
injury-in-fact. And, in a footnote, it distinguished TransUnion based on its
facts. Second, it held that MVBA’s letter had violated the FDCPA but factual
disputes concerning an affirmative defense precluded summary judgment.
Finally, it certified the proposed class under Rule 23(b)(3).
MVBA sought permission to appeal the class-certification order under
Rule 23(f ). It received that permission from a motions panel of our court and
now appeals.
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II.
Federal courts are courts of limited subject matter jurisdiction.
Our power to resolve disputes is limited to “Cases” and “Controversies,”
U.S. Const. art. III, § 2, to prevent us from encroaching on domains prop-
erly allocated to the other branches in our system of self-government,
see TransUnion, 141 S. Ct. at 2203; Clapper v. Amnesty Int’l USA, 568 U.S.
398, 408 (2013); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). As
relevant for our purposes, a lawsuit is not a “Case[ ]” or “Controvers[y]”
unless the plaintiff can prove that he has standing to bring suit. Lujan,
504 U.S. at 560–61.
That requires the plaintiff to “show (i) that he suffered an injury in
fact that is concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the injury would likely
be redressed by judicial relief.” TransUnion, 141 S. Ct. at 2203. Moreover,
“standing is not dispensed in gross; rather, plaintiffs must demonstrate stand-
ing for each claim that they press and for each form of relief that they seek
(for example, injunctive relief and damages).” Id. at 2208.
This case involves the first element of standing: the requirement that
the plaintiff show he has suffered a concrete injury-in-fact. Last Term, the
Supreme Court clarified standing’s concrete-injury requirement in Trans-
Union. There, it reiterated that a purported injury is not concrete for pur-
poses of Article III unless it has a “ʻclose relationship’ to a harm traditionally
recognized as providing a basis for a lawsuit in American courts.” Trans-
Union, 141 S. Ct. at 2200 (quoting Spokeo, 578 U.S. at 340–41). That standard
doesn’t require an “exact duplicate.” Id. at 2204. But “federal courts” may
not “loosen Article III based on contemporary, evolving beliefs about what
kinds of suits should be heard in federal courts.” Ibid.
Some harms plainly have that “close relationship.” Think of “tradi-
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tional tangible harms, such as physical harms and monetary harms.” Ibid.
But intangible harms can also be concrete. Think of the kind of harms recog-
nized in longstanding tort law or the Constitution itself. See ibid. When
evaluating whether intangible harms are concrete, Congress’s views are also
entitled to “due respect.” Ibid. “Congress may ʻelevate to the status of
legally cognizable injuries concrete, de facto injuries that were previously
inadequate in law.’” Spokeo, 578 U.S. at 341 (alteration adopted and quotation
omitted).
But “Congress’s creation of a statutory prohibition or obligation and
a cause of action does not relieve courts of their responsibility to indepen-
dently decide whether a plaintiff has suffered a concrete harm under Arti-
cle III.” TransUnion, 141 S. Ct. at 2205. Any other rule would allow Congress
to grant private plaintiffs a personal stake in enforcing regulatory law and
ultimately usurp the President’s Article II authority to execute the laws. See
id. at 2206–07 & nn.2–3. And that would aggrandize our power by letting us
resolve disputes that are not “of a Judiciary Nature.” 2 The Records of
the Federal Convention of 1787, at 430 (M. Farrand ed. 1911)
(Statement of James Madison).
So TransUnion is clear: A plaintiff always needs a concrete injury to
bring suit, and injuries are concrete only if they bear a “close relationship” to
injuries that courts have traditionally recognized as concrete. But how close
is close enough? The Supreme Court hasn’t provided an exact formulation.
But then-Judge Barrett got it right in Gadelhak v. AT&T Services Inc., 950 F.3d
458, 462 (7th Cir. 2020): “[W]e are meant to look for a ʻclose relationship’
in kind, not degree.” After all, Congress’s ability to “elevate” harms “to the
status of legally cognizable injuries,” TransUnion, 141 S. Ct. at 2205 (quota-
tion omitted), implies that the level of harm required at common law “does
not stake out the limits of [its] power to identify harms deserving a remedy,”
Gadelhak, 950 F.3d at 463.
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Picking up on that cue, our court has already recognized that we must
“focus[ ] on types of harms protected at common law, not the precise point
at which those harms become actionable.” Cranor v. 5 Star Nutrition, L.L.C.,
998 F.3d 686, 693 (5th Cir. 2021) (quotation omitted). Beyond the Seventh
Circuit, many of our sister circuits have done the same. 1 So a plaintiff doesn’t
need to demonstrate that the level of harm he has suffered would be action-
able under a similar, common-law cause of action. But he does need to show
that the type of harm he’s suffered is similar in kind to a type of harm that the
common law has recognized as actionable. If he can’t do that, he hasn’t
suffered a concrete injury and doesn’t have standing to bring suit.
III.
That brings us to this case. Before the district court, MVBA claimed
that Perez hadn’t suffered a concrete injury. It failed to do so on appeal. But
we have an obligation to assure ourselves of jurisdiction—even in “limited”
Rule 23(f ) interlocutory appeals that typically embrace “only the issue of
class certification.” Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 294
(5th Cir. 2001); see also Flecha v. Medicredit, Inc., 946 F.3d 762, 769 (5th Cir.
2020). And in a class action, “federal courts lack jurisdiction if no named
plaintiff has standing.” Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per
curiam). Accordingly, we directed the parties to be prepared to discuss at oral
argument whether Perez had suffered a concrete injury-in-fact under
TransUnion.
1
See Krakauer v. Dish Network, LLC, 925 F.3d 643, 653–54 (4th Cir. 2019); Golan
v. FreeEats.com, Inc., 930 F.3d 950, 959 (8th Cir. 2019); Lupia v. Medicredit, Inc., 8 F.4th
1184, 1191 (10th Cir. 2021); Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 17 F.4th
1016, 1024–27 (11th Cir.), reh’g en banc granted, opinion vacated, 17 F.4th 1103 (11th Cir.
2021). Two others have also focused on the “character” of the relevant harms. Melito v.
Experian Mktg. Sols., Inc., 923 F.3d 85, 92–93 (2d Cir. 2019); Susinno v. Work Out World Inc.,
862 F.3d 346, 352 (3d Cir. 2017).
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There, Perez’s counsel advanced five theories for holding that Perez
had suffered a concrete injury-in-fact. As he had before the district court, he
claimed that the violation of Perez’s rights under the FDCPA itself qualified
as an injury-in-fact. He again pressed three theories of injury that were men-
tioned in Perez’s complaint: that the letter subjected Perez to a material risk
of financial harm, that it confused or misled her, and that it required her to
waste her time by consulting with an attorney. And he advanced a new theory
that the receipt of the unwanted letter was analogous to the tort of intrusion
upon seclusion. Perez has failed to meet her burden for all of those theories.
A.
We begin with Perez’s request for damages. First, Perez claims that
the violation of her statutory rights under the FDCPA itself qualifies as a
concrete injury. The district court advanced a similar contention, reasoning
that Perez’s suit related to her substantive right to be free from misleading
information instead of a “bare procedural violation” of the FDCPA that
would not be cognizable under Spokeo, 578 U.S. at 341.
TransUnion forecloses those theories. It explicitly held that “Arti-
cle III standing requires a concrete injury even in the context of a statutory
violation.” 141 S. Ct. at 2205 (quoting Spokeo, 578 U.S. at 341); see also id.
(“[U]nder Article III, an injury in law is not an injury in fact.”). It “reject[s]
the proposition that ʻa plaintiff automatically satisfies the injury-in-fact re-
quirement whenever a statute grants a person a statutory right and purports
to authorize that person to sue to vindicate that right.’” 2 And it emphasizes
that a hypothetical lawsuit based only on the violation of an environmental
2
Id. (quotation omitted); see also id. (“For standing purposes . . . , an important
difference exists between (i) a plaintiff ’s statutory cause of action to sue a defendant over
the defendant’s violation of federal law, and (ii) a plaintiff’s suffering concrete harm
because of the defendant’s violation of federal law.”).
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statute “may not proceed because that plaintiff has not suffered any physical,
monetary, or cognizable intangible harm traditionally recognized as providing
a basis for a lawsuit in American courts.” Id. at 2206.
Nor is Spokeo to the contrary. Granted, that opinion held that a “bare
procedural violation” of a statute does not qualify as an injury-in-fact.
578 U.S. at 341. But Spokeo merely cited that as an “example” of a statutory
violation that alone would not create an injury-in-fact. Id. Again, regardless
of whether a statutory right is procedural or substantive, Spokeo emphasized
that “Article III standing requires a concrete injury even in the context of a
statutory violation.” Id. Its reference to procedural violations merely
underscored that conclusion: The “[d]eprivation of a procedural right with-
out some concrete interest that is affected by the deprivation . . . is insuffi-
cient to create Article III standing.” Id. (quoting Summers, 555 U.S. at 496).
For Article III purposes, Spokeo never distinguished between substantive and
procedural statutory rights. Accordingly, Perez’s first theory doesn’t estab-
lish that she has standing to bring suit.
Second, Perez maintains that MVBA’s letter subjected her to a material
risk of financial harm and that that exposure qualifies as a concrete injury.
Specifically, Perez claims that her receipt of the letter subjected her to a risk
that she might accidentally pay her time-barred debts.
This theory, too, is foreclosed by TransUnion. Remember: A plaintiff
always must be able to point to a concrete injury to bring suit. And if a risk
hasn’t materialized, the plaintiff hasn’t yet been injured. TransUnion held
that merely being subjected to a risk of future harm cannot support a suit for
damages. 141 S. Ct. at 2210–11. A plaintiff can sue for damages if the risk
materializes or causes a separate injury-in-fact, such as emotional distress. Id.
But those are suits based on those injuries, not the risk itself. Id.
Once again, Spokeo doesn’t save this theory. That case acknowledged
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that a “material risk of harm” can “satisfy the requirement of concreteness.”
578 U.S. at 341–42. But TransUnion clarified that this language applied to
“forward-looking” suits for declaratory or injunctive relief that seek to “pre-
vent the harm from occurring.” 141 S. Ct. at 2210–11. A suit for damages
demands compensation for injuries that a plaintiff has suffered in the past, so
that principle doesn’t apply.
True, we have previously held that a plaintiff’s “expos[ure] . . . to a
real risk of financial harm” caused by an FDCPA violation can qualify as a
concrete injury-in-fact in a suit for damages. See Sayles v. Advanced Recovery
Sys., Inc., 865 F.3d 246, 250 (5th Cir. 2017), aff’g 206 F. Supp. 3d 1210 (S.D.
Miss. 2016) (awarding damages to the plaintiff ). But that case predated
TransUnion by nearly four years, and we aren’t bound by panel opinions that
the Supreme Court has “implicitly overruled.” In re Bonvillian Marine Serv.,
Inc., 19 F.4th 787, 792 (5th Cir. 2021) (quotation omitted). One way that can
happen is “if a subsequent Supreme Court opinion establishes a rule of law
inconsistent with [our] precedent.” Id. (quotation omitted). Sayles can’t be
squared with TransUnion, so TransUnion controls. And that means the un-
materialized risk Perez experienced can’t support her suit for damages.
Third, Perez says the confusion she experienced from MVBA’s letter
qualifies as a concrete injury. The district court endorsed that theory, but we
disagree.
Perez’s argument isn’t entirely clear, but we understand her to analo-
gize the confusion she suffered to fraudulent-misrepresentation torts. Such
torts make A liable for B’s pecuniary losses where A intentionally misleads B
and B justifiably relies on that misrepresentation. Restatement (First)
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of Torts §§ 525, 549, 553 (Am. L. Inst. 1938). 3 Perez’s confusion bears
some similarities to those torts. After all, her confusion is the result of
MVBA’s allegedly misleading letter, and those torts make tortfeasors liable
for similar misrepresentations.
But Perez’s problem is that her confusion isn’t similar “in kind” to the
harm recognized by fraudulent misrepresentation, Gadelhak, 950 F.3d at 462,
and that’s what matters for standing purposes. The nature of the harm rec-
ognized by fraudulent misrepresentation is a traditional, tangible harm: the
“pecuniary loss” the plaintiff sustains. 4 And that means Perez’s
confusion—which can only be an intangible harm, if it’s a harm at all—is
necessarily different “in kind” from her common-law analog. Gadelhak,
950 F.3d at 462. We thus join several of our sister circuits in holding that the
3
As an originalist matter, it would make the most sense to limit the category of
concrete harms to those recognized at the time Article III was ratified. But TransUnion
relied in part on the twentieth-century Restatement (First) of Torts to establish the nature of
several types of concrete harms. 141 S. Ct. at 2208–09. Likewise, the Courts of Appeals—
including this one—have relied on both the Restatement (First) and the Restatement (Second)
to do the same. See, e.g., Amrhein v. eClinical Works, LLC, 954 F.3d 328, 334 (1st Cir. 2020);
Melito, 923 F.3d at 93; Susinno, 862 F.3d at 351; Krakauer, 925 F.3d at 653; Cranor, 998 F.3d
at 691; Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 864 (6th Cir. 2020); Gadelhak,
950 F.3d at 462; Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930 (8th Cir. 2016); Van
Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017); Lupia, 8 F.4th
at 1191; Salcedo v. Hanna, 936 F.3d 1162, 1171 (11th Cir. 2019); Owner-Operator Indep.
Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339, 345 (D.C. Cir. 2018). So we, too,
will rely on the Restatements.
4
Restatement (First) § 549; see also id. § 553 (noting that liability attaches
for “the loss caused by the making of the gift” (emphasis added)); Restatement (Sec-
ond) of Torts §§ 525, 529 (Am. L. Inst. 1977); cf. Trichell v. Midland Credit Mgmt.,
Inc., 964 F.3d 990, 997–98 (11th Cir. 2020) (holding that the plaintiffs had not suffered a
harm similar in kind to fraudulent misrepresentation because they had not suffered actual
damages).
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state of confusion, absent more, is not a concrete injury under Article III. 5
Fourth, Perez says the time she wasted by consulting with her lawyer
after receiving the letter qualifies as a concrete injury. Absent an allegation
that Perez paid her attorney anything for the consultation, we must assume
that her purported injury is solely lost time.
Perez doesn’t offer a common-law analog to the time-based injury she
claims to have suffered. In other words, she has not met her “burden [to]
demonstrate[e] that [she has] standing” based on that theory. TransUnion,
141 S. Ct. at 2207. After all, how can we decide whether two harms have a
“close relationship” if we don’t know what one of them is? Id. at 2200
(quotation omitted). It is not our job to “conjure up possible theories” that
could carry a litigant’s burden. Raley v. Hyundai Motor Co., 642 F.3d 1271,
1275 (10th Cir. 2011).
Besides, we are not aware of any tort that makes a person liable for
wasting another’s time. Although tort plaintiffs can sometimes recover dam-
ages for the opportunity costs attributable to the tort, the nature of the
underlying harm is different—e.g., physical damage in the case of a personal
injury suit. Like at least one of our sister circuits, we are thus skeptical that a
time-based injury alone could qualify as a concrete injury. Cf. Brunett,
982 F.3d at 1069. Still, we do not conclusively decide whether such injuries
are closely related to traditional harms, permitting future parties to develop
the question further. We hold only that Perez did not carry her burden to
show that a time-based injury could sustain her claims.
5
Garland v. Orlans, PC, 999 F.3d 432, 438 (6th Cir. 2021); Brunett v. Convergent
Outsourcing, Inc., 982 F.3d 1067, 1068 (7th Cir. 2020); see also Trichell, 964 F.3d at 997–98.
The Eighth Circuit also appeared to endorse this holding in Ojogwu v. Rodenburg Law Firm,
26 F.4th 457, 463 (8th Cir. 2022).
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Finally, Perez claims that her receipt of an unwanted letter caused her
to suffer a concrete injury analogous to the tort of intrusion upon seclusion.
Once again, we disagree.
A person commits the tort of intrusion upon seclusion by “intention-
ally intrud[ing], physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns . . . if the intrusion would be highly
offensive to a reasonable person.” Restatement (Second) § 652B.
One pattern of liability is for repeated, harassing communications. See id.
cmt. d; Gadelhak, 950 F.3d at 462.
TransUnion explicitly recognized that harms analogous to this tort can
qualify as concrete. See 141 S. Ct. at 2204 (citing Gadelhak, 950 F.3d at 462).
Before and after TransUnion, many of our sister circuits also held that un-
wanted communications could cause concrete injuries similar to intrusion
upon seclusion or other privacy torts. 6 Since the harms elevated by Congress
need only be similar “in kind, not degree,” Gadelhak, 950 F.3d at 462, it
seems to follow that a single unwanted communication could qualify as a con-
crete injury even though intrusion upon seclusion requires many. So how can
we say that Perez’s receipt of the letter did not inflict a concrete injury?
The answer is that Congress didn’t elevate the receipt of a single,
unwanted message to the status of a legally cognizable injury in the FDCPA.
Perez sued MVBA for violating the statute’s antifraud provision. 15 U.S.C.
§ 1692e. Congress’s concern in prohibiting “false, deceptive, or misleading
representation[s] or means in connection with the collection of any debt”
6
Melito, 923 F.3d at 92–93; Susinno, 862 F.3d at 351; Krakauer, 925 F.3d at 653;
Gadelhak, 950 F.3d at 462; Van Patten, 847 F.3d at 1042–43; Lupia, 8 F.4th at 1191; Hunstein,
17 F.4th at 1023–24; but see Salcedo, 936 F.3d at 1172. Two circuits—including this one—
have also recognized that unwanted communications can inflict a concrete injury analogous
to a nuisance or a public nuisance. Cranor, 998 F.3d at 692; Golan, 930 F.3d at 959.
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wasn’t consumer privacy. It was the economic harms that consumers suf-
fered due to aggressive and unfair attempts to collect their debts. See id.
§ 1692(a) (finding that “[a]busive debt collection practices contribute to the
number of personal bankruptcies, to marital instability, [and] to the loss of
jobs”).
Congress also expressed concern about “invasions of individual pri-
vacy.” Id. § 1692(a). But it addressed those problems through a different
section of the FDCPA: the statute’s prohibition on harassment and abuse. Id.
§ 1692d. Perez hasn’t sued MVBA based on that provision, so she can’t boot-
strap the harms it recognizes as actionable to demonstrate standing to sue
based on a different provision. 7
Anyway, the FDCPA’s harassment provision doesn’t recognize that a
single unwanted message qualifies as a concrete harm. Instead, its closest
analog to an unwanted letter—unwanted telephone calls—must be made
“repeatedly or continuously.” 15 U.S.C. § 1692d(5). Its general prohibition
on actions that “harass, oppress, or abuse” a debtor carries the same conno-
tation. Id. § 1692d. Accordingly, even if Congress could elevate a single
unwanted message to the status of a concrete injury, it hasn’t done so here.
Perez does not have standing to bring her suit for damages.
B.
That brings us to Perez’s request for a declaratory judgment. Perez
asks us to declare that MVBA’s debt-collection practices violate the FDCPA.
But Perez must “demonstrate standing” for this “form of relief,” too.
7
Other circuits have also rejected the use of privacy-related torts to bootstrap
standing when a plaintiff sues a defendant for violating statutory provision that do not
involve privacy. Ward v. Nat’l Patient Acct. Servs. Sols., Inc., 9 F.4th 357, 362 (6th Cir. 2021);
cf. Gunn v. Thrasher, Buschmann & Voelkel, P.C., 982 F.3d 1069, 1071 (7th Cir. 2020).
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TransUnion, 141 S. Ct. at 2208. Once again, none of her claimed injuries is
concrete. Our reasoning is the same except for one of Perez’s purported
injuries: the risk of financial harm she suffered from MVBA’s letter.
As we have previously explained, a risk of injury does not qualify as
concrete harm for purposes of a damages claim. But the story is different
where a plaintiff requests a “forward-looking” remedy such as an injunction
or declaration. TransUnion, 141 S. Ct. at 2210; see also City of Austin v. Paxton,
943 F.3d 993, 1002 (5th Cir. 2019). That’s because standing doesn’t always
require a plaintiff’s concrete injury to be “actual”—i.e., an injury that the
plaintiff has already sustained. Lujan, 504 U.S. at 560 (quotation omitted).
A plaintiff can sometimes show standing by pointing to a concrete injury that
is “imminent.” Id. (quotation omitted). Accordingly, “a material risk of
future harm” permits the plaintiff to sue “to prevent the harm from occur-
ring, at least so long as the risk of harm is sufficiently imminent and substan-
tial.” TransUnion, 141 S. Ct. at 2210.
The problem for Perez is that she doesn’t allege that she is currently
subject to a material risk of financial harm. Instead, she says that she suffered
that risk in the past. According to her complaint, Perez was confused by
MVBA’s letter and might have accidentally paid a time-barred debt. But that
confusion dissipated once she consulted her attorney. She hasn’t alleged facts
that show she might receive another misleading letter from MVBA in the
future. So she can’t point to an “imminent” concrete harm to support her
request for forward-looking relief.
Nor can the risk she suffered in the past give her standing to bring suit.
We have already explained why that risk does not qualify as a concrete injury
under TransUnion. But even if that weren’t true, forward-looking relief like
injunctions and declarations couldn’t fix it. And that means Perez’s couldn’t
meet standing’s redressability requirement when seeking that relief. Stringer
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Case: 21-50958 Document: 00516432335 Page: 15 Date Filed: 08/15/2022
No. 21-50958
v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019). Thus, Perez doesn’t have stand-
ing to bring a suit for a declaration.
* * * * *
The class-certification order is VACATED, and the case is
REMANDED with instruction to dismiss for want of jurisdiction.
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