Jessica Nelson v. Experian Information Solutions Inc.

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10147

____________________

JESSICA NELSON,

Individually and on behalf of Similarly

Situated Costumers,

Plaintiff-Appellant,

versus

EXPERIAN INFORMATION SOLUTIONS INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 4:21-cv-00894-CLM

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2 Opinion of the Court 24-10147

____________________

Before NEWSOM, BRASHER, and WILSON, Circuit Judges.

BRASHER, Circuit Judge:

Jessica Nelson spent time and money to correct personal

identifying information that she saw in the information section of

her credit report, and she contends that Experian failed to correct

that information in violation of the Fair Credit Reporting Act. Pre-

viously, we have recognized that the expenditure of “time,” Losch

v. Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir. 2021), and

“money,” Pinson v. JPMorgan Chase Bank, N.A., 942 F.3d 1200, 1207

(11th Cir. 2019), to correct a credit report is a concrete injury for

the purposes of Article III standing. See also Pedro v. Equifax, Inc.,

868 F.3d 1275, 1280 (11th Cir. 2017). But, in each of those cases, the

consumer reporting agencies published the error to third-party

creditors. The question in this appeal is whether a plaintiff like Nel-

son has standing to sue a consumer reporting agency because it

failed to correct information in her file that has not been published

to a third party or otherwise affected her merely because she spent

money and time asking the reporting agency to correct the infor-

mation. We hold that spending money and time attempting to cor-

rect errors on a credit report that has not been published to a third

party or otherwise affected a plaintiff fails to satisfy the standing

requirements of Article III. Accordingly, we vacate the district

court’s judgment and remand for proceedings consistent with this

opinion.

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24-10147 Opinion of the Court 3

I.

Nelson requested a copy of her credit report from Experian.

She identified four errors in the informational section of the report:

an incorrect spelling of her maiden name, an address to her

mother’s home, an address to her attorney’s office, and a variation

of her social security number.

Nelson sent a letter to Experian and requested that it correct

her information. Experian wrote back and told her to contact the

furnishers—whoever may have supplied Experian with her per-

sonal identifying information. Experian and third parties use infor-

mation like names, addresses, and social security numbers to iden-

tify consumers and match them to accounts that they own. But,

instead of notifying the furnishers, Nelson wrote to Experian a sec-

ond time to correct the four entries. Experian responded with di-

rections to contact her furnishers and corrected some entries. Ex-

perian did not tell Nelson about the corrections. So, again, Nelson

wrote to Experian, asking Experian to correct all four pieces of in-

accurate information. In total, Nelson spent about twenty dollars

in certified mail costs in her communications with Experian.

Nelson sued Experian, in Alabama state court, under the

Fair Credit Reporting Act for failure to conduct a reasonable rein-

vestigation into her information. Specifically, she alleged that Ex-

perian failed to “conduct a reasonable reinvestigation” once it was

notified of inaccurate or incomplete information in her “con-

sumer[] file.” 15 U.S.C. § 1681i(a)(1)(A). Experian removed the case

to federal court and requested judgment in its favor on the

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4 Opinion of the Court 24-10147

pleadings. The district court raised standing sua sponte and re-

quested supplemental briefing.

The district court denied Experian’s motion for judgment on

the pleadings and concluded that Nelson satisfied standing under

this Court’s decisions in Pinson, 942 F.3d at 1207, and Pedro, 868

F.3d at 1280. It reasoned that Nelson suffered an injury when she

paid out-of-pocket expenses to send certified mail disputing the in-

formation to Experian and spent time attempting to correct that

information. Later, the district court granted summary judgment

in Experian’s favor on the merits of Nelson’s claim.

Nelson timely appealed. Like the district court, we raised

Nelson’s standing sua sponte, and the parties filed briefs on the issue.

II.

We review the existence of Article III standing de novo. See

Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 923 (11th Cir.

2020).

III.

Article III of the Constitution limits our jurisdiction to

“Cases” and “Controversies.” U.S. Const., art. III, § 2, cl. 1. A plain-

tiff must prove that her dispute is a case or controversy by satisfy-

ing the standing requirements of Article III. To do so, the plaintiff

must establish that she “(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that

is likely to be redressed by a favorable judicial decision.” Spokeo,

Inc. v. Robins, 578 U.S. 330, 338 (2016).

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The question here turns on the injury-in-fact requirement.

That injury must be “concrete”—meaning, “real.” Id. at 340 (cita-

tion modified). It can be tangible or intangible. Id. Tangible harms

include, among other things, “physical injury or financial loss.” Mu-

ransky, 979 F.3d at 926. Intangible harms include, among other

things, “injuries with a close relationship to harms traditionally rec-

ognized as providing a basis for lawsuits in American courts.”

TransUnion v. Ramirez, 594 U.S. 413, 425 (2021). In addition to being

concrete, the injury must be “actual”—that is, not “conjectural or

hypothetical.” Muransky, 979 F.3d at 925.

“The party invoking federal jurisdiction bears the burden of

establishing these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992). The allegations and evidence required to meet that bur-

den depend on the stage of litigation. Id. At summary judgment,

where we are now, the party must support its argument for juris-

diction with affidavits or evidence, which we accept as true. Id.

Nelson proposed two theories for how she has suffered an

injury in fact: first, she says that she spent time and money to cor-

rect information on her credit report; and second, she alleges that

the incorrect information increases her risk of identity theft. Nei-

ther theory, as we discuss in turn, satisfies the standing require-

ments of Article III.

A.

We start with Nelson’s first theory. Nelson contends that,

because she spent time and money to correct errors in her con-

sumer credit file, she satisfies Article III’s standing requirements.

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But Nelson cannot rely on a self-imposed injury to satisfy Article

III. And Nelson has not identified any way that these errors injured

her apart from her efforts to correct them. Notably, Nelson does

not allege that this information was ever disclosed to a third party.

Because Nelson has not established that the underlying infor-

mation caused her harm, we cannot say that she has shown stand-

ing.

Our conclusion is a straightforward application of estab-

lished precedents. Nelson alleges a violation of 15 U.S.C. § 1681i,

which requires, among other things, that a consumer reporting

agency reinvestigate whether disputed information is inaccurate.

But a statutory violation is not itself an injury in fact. See TransUn-

ion, 594 U.S. at 426; Spokeo, 578 U.S. at 341. Instead, a plaintiff must

establish a concrete harm resulting from the statutory violation. See

TransUnion, 594 U.S. at 426–27. For example, in TransUnion, the Su-

preme Court held that the improper designation of the plaintiffs on

a sanctions list in the consumer reporting agency’s internal files,

allegedly in violation of the Fair Credit Reporting Act, did not by

itself confer standing. Id. at 433. Without something more than a

bare statutory violation—something like the disclosure of errone-

ous information to a third party—Nelson cannot establish stand-

ing.

Even though Nelson does not argue that her information

was disclosed to a third party, Nelson contends that she was injured

because she spent time and money to notify Experian of her incor-

rect personal identifying information. Again, this argument fails

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under a straightforward application of precedent, which has recog-

nized that “not all inaccuracies cause harm or present any material

risk of harm.” Spokeo, 578 U.S. at 342. Accepting Nelson’s argument

would create a loophole in Spokeo and TransUnion. Any plaintiff

could bypass those holdings by spending time and money to rectify

an otherwise harmless statutory violation. And, as we see it, the

Supreme Court has already closed the door to that loophole: it has

held that a plaintiff cannot “manufacture standing by incurring

costs in anticipation of non-imminent harm.” Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 422 (2013). That is, “an enterprising plain-

tiff” cannot “secure a lower standard for Article III standing simply

by making an expenditure based on a nonparanoid fear.” Id. at 416.

We also rejected a similar self-inflicted harm argument in

our en banc decision in Muransky. There, a plaintiff argued, among

other things, that he suffered an actual injury because he spent time

attempting to correct a statutory violation—too many credit-card

digits printed on the back of a receipt. See Muransky, 979 F.3d at

922, 931. Because the statutory violation was not itself an injury for

standing purposes, we reasoned that “any assertion of wasted time

and effort necessarily rises or falls along with . . . whether the risk

posed by . . . [the statutory] violation, as pleaded by [the plaintiff],

is itself a concrete harm.” Id. at 931; see also Tsao v. Captiva MVP

Rest. Partners, LLC, 986 F.3d 1332, 1345 (11th Cir. 2021) (a plaintiff

“cannot conjure standing here by inflicting injuries on himself to

avoid an insubstantial, non-imminent risk” of harm); In re Equifax

Inc. Customer Data Sec. Breach Litig., 999 F.3d 1247, 1263 (11th Cir.

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8 Opinion of the Court 24-10147

2021) (“[B]ecause the risk of harm here is a sufficient injury, the

allegations of mitigation injuries made by these Plaintiffs are also

sufficient.”).

Under these precedents, whether a plaintiff’s “assertion of

wasted time and effort” is a concrete harm depends on whether the

wasted time and effort responded to something that “is itself a con-

crete harm.” Muransky, 979 F.3d at 931. To be sure, Nelson argues

that she had to spend time and money to “force” Experian to abide

by its legal duties. But this argument merely begs the question. A

plaintiff’s efforts to “force” a defendant to do something—here,

correct information in its file—does not establish standing unless

the defendant’s failure to act has caused or is likely to cause an in-

jury. Cf. FDA v. All. for Hippocratic Med., 602 U.S. 367, 394 (2024)

(“[A]n organization that has not suffered a concrete injury caused

by a defendant’s action cannot spend its way into standing simply

by expending money to gather information and advocate against

the defendant’s action.”). No matter how Nelson packages her rea-

sons for spending time and money, the bottom line is the same: a

plaintiff cannot manufacture standing by spending time and money

to rectify an otherwise harmless statutory violation.

Nelson disagrees with this reading of our precedents. She ar-

gues that we have found standing in similar cases based on the ex-

penditure of money and wasted time to correct an otherwise harm-

less statutory violation. Specifically, she cites our opinions in Wal-

ters v. Fast AC, LLC, 60 F.4th 642 (11th Cir. 2023), Losch v. Nationstar

Mortg. LLC, 995 F.3d 937 (11th Cir. 2021), Pinson v. JPMorgan Chase

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Bank, N.A., 942 F.3d 1200 (11th Cir. 2019), and Pedro v. Equifax, Inc.,

868 F.3d 1275 (11th Cir. 2017). We disagree with Nelson’s reading

of these precedents.

As an initial matter, even if Nelson were correct that Pinson

and Pedro held that self-inflicted harm is a concrete injury—and she

is not, as detailed below—we have already explained that newer

precedents from the Supreme Court and this court sitting en banc

are inconsistent with that conclusion. See TransUnion, 594 U.S. at

426–27; Muransky, 979 F.3d at 931. Under the prior precedent rule,

we are bound to follow a prior precedent “unless and until it is

overruled by this court en banc or by the Supreme Court.” United

States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). And we quite

clearly rejected Nelson’s argument in our decision in Muransky. So

we must follow that intervening en banc decision. See, e.g., Tsao,

986 F.3d at 1345 (Jordan, J., concurring).

In any event, we also think Nelson misreads each of these

precedents because, in each case, the consumer spent money and

time to correct an error that itself caused a concrete harm. See In re

Hubbard, 803 F.3d 1298, 1314 n.15 (11th Cir. 2015) (“We have an

obligation to construe our prior decisions to be consistent with Su-

preme Court precedent where possible.”). Most recently, in Wal-

ters, we held that a consumer had standing to sue because he “lost

time [and] money,” which are “garden-variety injuries in fact.” 60

F.4th at 649. But we made clear that the consumer suffered these

injuries because of a “disputed debt” that “negatively impacted his

credit score.” Id. at 646–47. In Losch, we held that a consumer could

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sue a credit reporting agency that falsely reported a delinquent

mortgage to third parties because “the false reporting itself was the

injury.” 995 F.3d at 943. Likewise, the consumer reporting agency

in Pinson reported an erroneous past-due account to third parties

who, in turn, used that information to make decisions adverse to

the consumer’s interests. 942 F.3d at 1207. And, in Pedro, a credit

report contained an error that caused the consumer’s credit score

to plummet when it was published to third parties. 868 F.3d at

1280. In each case, we recognized that the consumers suffered ad-

ditional harms because they had to spend money and time to dis-

pute and correct these errors. But at no point did this Court hold

that a consumer’s effort to correct an otherwise harmless error in

a consumer’s credit file is, by itself, a concrete injury.

In short, Nelson’s first theory of standing fails. We address

below whether Experian’s statutory violation led to an imminent

risk of future injury. But, as to past injury, Nelson has not identified

any way in which Experian’s alleged statutory violation affected

her apart from her voluntary efforts to remedy it. Nelson has not

alleged that the information she sought to correct was disclosed to

a third party. She has not alleged that it affected her credit. And she

has not alleged an emotional or psychological injury.

Nelson’s first theory depends on the mere existence of incor-

rect information in her consumer file. But information that merely

exists in a credit file has no real-world effect unless it is distributed

to another to view or use. The Supreme Court, though in dicta, has

made this same point: the “presence of an inaccuracy in an internal

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credit file, if it is not disclosed to a third party, causes no concrete

harm.” TransUnion, 594 U.S. at 434. The consumers in Walters,

Losch, Pinson, and Pedro suffered some real-world harm, which

prompted them to spend money and waste time. But we cannot

say the same about Nelson. She has not been “denied access to

credit,” Pinson, 942 F.3d at 1207, her credit score has not dropped,

Pedro, 868 F.3d at 1280, and her incorrect identifying information

has not been “sent to third parties,” Losch, 995 F.3d at 943. Because

the incorrect information in Nelson’s credit file is not itself a con-

crete harm, the time and money she spent to correct that infor-

mation is not a concrete harm either.

B.

Nelson’s second theory of standing also fails. She argues

that, because the errors in her report created an “increased risk of

identity theft” she suffered an injury in fact. After all, her second

dispute letter to Experian expressed her “concern[] about identity

theft,” saying that she did not “want businesses thinking that the

wrong addresses are [hers] and sending [her] information to the

wrong addresses or the wrong name.”

To satisfy standing based on a threat of harm, Nelson must

show that the harm is “certainly impending” or that there is a “sub-

stantial risk” of the harm. Clapper, 568 U.S. at 414 & n.5. We have

stressed that an allegation of a future injury triggers a “high stand-

ard for the risk-of-harm analysis, and a robust judicial role in as-

sessing that risk.” Muransky, 979 F.3d at 927. And to meet that high

standard at the summary-judgment stage, a plaintiff must support

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her theory of standing with evidence, which we accept as true. See

Lujan, 504 U.S. at 561.

Nelson cannot meet this test because her theory relies on a

“speculative chain of possibilities.” Clapper, 568 U.S. at 414. She sug-

gests that Experian will send her incorrect information to a third

party, who, in turn, will send a credit offer to one of her two incor-

rect addresses—that is, her mother’s or attorney’s addresses. From

there, a bad actor will obtain her information to steal her identity.

Her theory about unknown bad actors stealing credit offers from

her mother or attorney does not “demonstrate a sufficient likeli-

hood” of identity theft to rise to the level of a concrete harm.

TransUnion, 594 U.S. at 438. We cannot say that such a speculative

series of events is “certainly impending to constitute injury in fact.”

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (citation modified).

Nelson resists this conclusion by arguing that we should de-

fer to Congress’s judgment that inaccuracies on credit reports can

lead to identity theft. This argument falls short, too. True, the Fair

Credit Reporting Act protects against identity theft, among other

things. But to rely on anticipated future harm for the purposes of

standing, a plaintiff must still establish that the harm is actual or

imminent. See Muransky, 979 F.3d at 928 n.3 (“Both identity theft

and a material risk of identity theft plainly qualify as injuries . . . .”)

(emphasis added). Though Congress’s judgment informs us that

identity theft is a concrete harm, Spokeo, 578 U.S. at 341, we cannot

say that Nelson’s chain-of-events reasoning moves the needle from

a “hypothetical future harm” to a “certainly impending” harm of

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identity theft. Clapper, 568 U.S. at 416. So this theory also fails to

satisfy the requirements of Article III.

* * *

Because Nelson does not have standing, we must vacate the

district court’s summary judgment. Nelson says we should also

award her attorney’s fees and costs because, as she sees it, Experian

employed a bait-and-switch tactic: Experian removed the case to

federal court and now successfully argues that the federal courts

lack jurisdiction. Experian, on the other hand, asks us to reject Nel-

son’s fee arguments and send the case back to state court where it

started. We leave these issues to the district court to address in the

first instance.

IV.

We VACATE and REMAND for proceedings consistent

with this opinion.