explaining that “[c]onstitutional standing [] is properly tested under Rule 12(b)(1
How later courts described this case
- explaining that “[c]onstitutional standing [] is properly tested under Rule 12(b)(1
- explaining that dismissal for lack of standing reflects a lack of jurisdiction and should be entered without prejudice
- explaining that standing will not be found when the “alleged harm, even if concrete, is hypothetical or conjectural”
- explaining that facial attacks argue plaintiffs’ “factual allegations cannot meet the elements of standing”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1540
_____________
VICKIE THORNE,
INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,
Appellant
v.
PEP BOYS MANNY MOE & JACK INC.
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:19-cv-00393)
District Judge: Honorable J. Curtis Joyner
_____________
Argued September 22, 2020
Before: SMITH, Chief Judge, McKEE, and JORDAN,
Circuit Judges
(Filed: November 20, 2020)
Yifei Li
Brenden S. Thompson
Alexandra C. Warren
Cuneo Gilbert & LaDuca
4725 Wisconsin Avenue, NW
Suite 200
Washington, DC 20016
Robert K. Shelquist [ARGUED]
Lockridge Grindal Nauen
100 Washington Avenue South
Suite 2200
Minneapolis, MN 55401
Counsel for Appellant
Kristen E. Dennison
C. Scott Toomey [ARGUED]
Littleton Park Joyce Ughetta & Kelly
201 King of Prussia Road
Suite 220
Radnor, PA 19087
Counsel for Appellee
________________
OPINION OF THE COURT
________________
SMITH, Chief Judge.
However appropriate may have been Virginia Woolf’s
comparison of the unhappy Mrs. Dalloway to “a wheel without
a tyre,” Plaintiff Vickie Thorne considers herself aggrieved
2
despite having equipped her car with two new tires. 1 Wheels
are not an issue. What is at issue is a federal regulation that
requires a tire dealer to help customers register their new tires
with the manufacturer. That regulation was promulgated under
the National Traffic and Motor Vehicle Safety Act of 1966, 49
U.S.C. § 30101, et seq. (“the Act”), and the Act’s stated pur-
pose is to reduce traffic accidents and their consequent human
toll. Thorne’s appeal turns on whether she can sue her tire
dealer for ignoring its regulatory tire registration obligation.
The regulation prescribes three methods for tire dealers
like Pep Boys Manny Moe & Jack Inc. to help register a
buyer’s tires. According to Thorne, Pep Boys failed to pursue
any of the three when, or after, it sold her the tires. So she sued
on behalf of a class of Pep Boys customers who similarly
received no tire registration assistance. But Thorne’s suit skid-
ded to a halt when the District Court dismissed her complaint
without leave to amend. The Court held that a dealer’s failure
to help register a buyer’s tires in one of the three prescribed
ways does not, by itself, create an injury in fact for purposes of
Article III standing. We agree with that ratio decidendi but,
because a district court has no jurisdiction to rule on the merits
when a plaintiff lacks standing, we will vacate and remand for
the District Court to dismiss Thorne’s operative complaint
without prejudice.
I. BACKGROUND
Congress passed the Act to “reduce traffic accidents and
deaths and injuries resulting from traffic accidents.” 49 U.S.C.
§ 30101; 80 Stat. 718. Congress later amended the Act to
1
Virginia Woolf, Mrs Dalloway 112 (Hogarth Press 1925).
3
require that every tire dealer unaffiliated with a tire manufac-
turer “give a registration form (containing the tire identifica-
tion number) to the first purchaser of a tire.” 2 49 U.S.C.
§ 30117(b)(2)(B). It also required a rulemaking to obligate
dealers to keep certain records on tire sales, including each
buyer’s name and address and tire identification information.
Id. § 30117(b)(3). Rulemaking merged these two require-
ments, providing three options for tire dealers to comply with
their registration obligations:
(1) Give each buyer a registration form listing the tire
identification number (“TIN”) of each tire he or she
bought and certain contact information of the dealer,
for the buyer to then submit to the tire manufacturer;
(2) Record each buyer’s name and address, the TIN of
each tire he or she bought, and certain contact infor-
mation for the dealer on a registration form, and mail
it to the tire manufacturer at no charge to the buyer
within 30 days; or
(3) Electronically submit to the tire manufacturer, by
methods it has authorized, the same information in
(2) at no charge to the buyer within 30 days.
See 49 C.F.R. § 574.8(a)(1)(i)–(iii).
Widening the lens, the Act states how it interacts with
other laws and is enforced. It preserves common-law causes
2
We refer in this opinion to such unaffiliated dealers as simply
“dealers.” For purposes not relevant here, the statute distin-
guishes between “independent dealers” such as Pep Boys and
those affiliated with tire manufacturers.
4
of action, 49 U.S.C. § 30103(e), but does not confer an express
private right of action. See, e.g., Ayres v. Gen. Motors Corp.,
234 F.3d 514, 522–24 (11th Cir. 2000); Mulholland v. Subaru
of Am., Inc., 620 F. Supp. 2d 1261, 1265–66 (D. Colo. 2009).
For administrative enforcement, the Act authorizes the Secre-
tary of Transportation to decide whether a vehicle or vehicle
equipment contains a safety-related defect or does not comply
with minimum performance standards. See 49 U.S.C.
§§ 30102(a)(10), 30118(a). Manufacturers must notify vehicle
owners and dealers of any such defect or non-compliance, and
the Secretary may sua sponte or on petition of an “interested
person” hold a hearing on the sufficiency of notice. Id. §
30118(b), (e). “Interested person[s]” may participate in these
hearings. Id. The Attorney General may also enforce the Act
through a federal civil lawsuit to enjoin “a violation of this
chapter or a regulation prescribed . . . under this chapter.” Id.
§ 30163(a). One who violates the Act, including the tire regis-
tration statute (§ 30117) “or a regulation prescribed thereunder,
is liable to the United States Government for a civil penalty of
not more than $21,000 for each violation.” Id. § 30165(a)(1).
Penalties for “a related series of violations” can reach $105
million. Id.
II. FACTS AND PROCEDURAL HISTORY
Thorne bought two tires from a Pep Boys store in Rich-
mond, Virginia, in January of 2017. She claims that Pep Boys
did not help register her tires with the manufacturer using any
of the three prescribed methods. 3
3
Thorne did not specifically allege in her complaint that Pep
Boys disregarded Option 2, under which the dealer mails a
buyer’s completed registration form to the manufacturer. She
5
Thorne filed a class action complaint against Pep Boys
in the Eastern District of Pennsylvania, alleging that Pep Boys
violated its registration obligations under 49 C.F.R. § 574.8
and thus was liable to her on federal and state-law causes of
action. Pep Boys moved to dismiss the complaint under Fed-
eral Rules of Civil Procedure 12(b)(1) and 12(b)(6). The
District Court determined that Thorne failed to allege a con-
crete injury in fact, dismissing her complaint without prejudice
for lack of Article III standing.
Thorne then filed an amended class action complaint,
bringing eight causes of action under federal warranty and state
law. 4 She sought money damages, restitution, injunctive relief,
and attorneys’ fees. Pep Boys, she alleged, deprived her of the
benefit of the bargain when it sold her tires without helping to
register them because unregistered tires are worth less than
registered tires. Thorne alternatively alleged intangible harm
because her unregistered tires increase the risk to her person or
property if she is unreachable upon her tires’ recall. She did
alleged that she “was not handed a tire-registration form by Pep
Boys,” and her “invoice [did not] indicate that Pep Boys trans-
mitted the federally-required information directly to the tire
manufacturer.” Am. Class Act. Compl. ¶ 53. She generally
alleged that Pep Boys violated its registration obligations and
that her tires went unregistered, so we take her to be claiming
that Pep Boys did not perform Option 2 either. For purposes
of this appeal, Pep Boys does not claim to practice any of the
three tire registration methods.
4
Thorne’s operative complaint seems to implicate Federal
Rules of Civil Procedure 23(b)(2) or 23(b)(3), though it cites
neither.
6
not allege any performance problems, physical defects, or
recall associated with her tires.
After Pep Boys again moved to dismiss, the District
Court dismissed Thorne’s amended complaint on Article III
standing grounds. The District Court held that Thorne failed
to sufficiently plead tangible financial harm because, as a
matter of law, she did not bargain for compliance with the
registration regulation. It also concluded that her alleged
intangible harm was speculative and insufficiently concrete
absent a recall of her tires. Citing Kamal v. J. Crew Grp., Inc.,
918 F.3d 102 (3d Cir. 2019), the District Court held that
violation of 49 C.F.R. § 574.8’s record-keeping requirement
alone does not produce an injury in fact. This time, dismissal
did not provide leave to amend.
III. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 to review
the dismissal of Thorne’s amended complaint. A North Caro-
lina resident, Thorne invoked 28 U.S.C. § 1332(d) to ground
the District Court’s exercise of diversity jurisdiction over her
putative class action against Philadelphia-based Pep Boys.
But the District Court lacked jurisdiction if Thorne
couldn’t establish Article III standing. See In re Schering
Plough Corp. Intron/Temodar Cons. Class Act., 678 F.3d 235,
243 (3d Cir. 2012). Constitutional standing, which is properly
tested under Rule 12(b)(1), may be challenged facially or fac-
tually. A facial challenge argues that the plaintiff’s factual
allegations cannot meet the elements of standing. Schering
Plough, 678 F.3d at 243; see also In re Horizon Healthcare
Servs. Inc. Data Breach Litig., 846 F.3d 625, 632 (3d Cir.
2017). Because that was the nub of Pep Boys’s Rule 12(b)(1)
7
motion, we take Thorne’s factual allegations as true, view them
in her favor, and perform a plenary review of the dismissal.
See Horizon, 846 F.3d at 632.
IV. ANALYSIS
Derived from separation-of-powers principles, the law
of standing “serves to prevent the judicial process from being
used to usurp the powers of the political branches.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Article III of
our Constitution vests “[t]he judicial Power of the United
States” in both the Supreme Court and “such inferior Courts as
the Congress may from time to time ordain and establish.”
U.S. Const. art. III, § 1. This “judicial [p]ower” extends only
to “Cases” and “Controversies.” Id. art. III, § 2; see also
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To assure
that judges avoid rendering impermissible advisory opinions,
parties seeking to invoke federal judicial power must first
establish their standing to do so. Spokeo, 136 S. Ct. at 1547.
The familiar elements of Article III standing require a
plaintiff to have “(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.”
Id. at 1547. Injury in fact is the “‘foremost’ of standing’s three
elements”—and the one element at issue in this appeal. Id.
(quoting Steel Co. v. Citizens for Better Environment, 523 U.S.
83, 103 (1998)). To plead an injury in fact, the party invoking
federal jurisdiction must establish three sub-elements: first, the
invasion of a legally protected interest; second, that the injury
is both “concrete and particularized”; and third, that the injury
is “actual or imminent, not conjectural or hypothetical.”
Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)); see also Mielo v. Steak ’n
8
Shake Ops., 897 F.3d 467, 479 n.11 (3d Cir. 2018). The parties
do not dispute that Thorne has suffered invasion of a legally
protected interest, so our injury-in-fact analysis focuses on the
latter sub-elements.
As the party invoking federal jurisdiction, Thorne has
the burden to establish standing “for each type of relief
sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009); see Finkelman v. Nat’l Football League, 810 F.3d 187,
194 (3d Cir. 2016). Her arguments do not differentiate
between the remedies she seeks. Still, we will consider her
standing as to each remedy alleged, mindful of our task to
“examine the allegations in the complaint from a number of
different angles to see if [Thorne’s] purported injury can be
framed in a way that satisfies Article III.” See Mielo, 897 F.3d
at 479 (quoting Finkelman, 810 F.3d at 197).
A. Tangible Economic Injury
A “paradigmatic form[]” of injury in fact is economic
injury. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d
286, 291 (3d Cir. 2005) (Alito, J.). “Standing always should
exist to claim damages, unless perhaps the theory of damages
is totally fanciful.” Id. (quoting WRIGHT & MILLER, FEDERAL
PRACTICE AND PROCEDURE, § 3531.4, at 847 n.7 (2005
Supp.)). Little surprise, then, that Thorne characterizes her tire
purchase as an economic injury. But Thorne nowhere
“allege[s] facts that would permit a factfinder to value the
purported injury at something more than zero dollars without
resorting to mere conjecture,” In re Johnson & Johnson
Talcum Powder Prods. Litig., 903 F.3d 278, 285 (3d Cir.
2018), so she fails to plead a theory of economic harm suffi-
cient to support standing.
9
The gravamen of Thorne’s alleged economic injury is
that she did not receive the benefit of her bargain when she
bought tires from Pep Boys that then went unregistered. She
alleged that “Class Members not only pay for the tires, but also
pay the cost of Defendant’s compliance with federal law.” Am.
Class Act. Compl. ¶ 9. And on appeal, she argues that “she
paid Pep Boys for nondefective tires, and it instead provided
her tires that were unregistered (because Pep Boys used none
of the three mandated methods at the point of sale), and
therefore the tires were defective, which is a tangible financial
injury.” Appellant’s Br. 16. Thorne’s benefit-of-the-bargain
allegations do not support a viable theory of economic injury,
and her product-defect argument blows right by the statute’s
defined terms.
1. Unregistered tires not worth less than Thorne paid.
Thorne’s benefit-of-the-bargain theory runs headlong into our
case law. We start with Johnson & Johnson. There, the plain-
tiff claimed that when she bought baby powder, she was denied
the benefit of her bargain because certain uses of the product
“can lead” to an elevated risk of ovarian cancer. 903 F.3d at
281–82. Though the plaintiff might have expected “safe” baby
powder, missing were allegations that the product was unsafe
as to her, that she developed ovarian cancer, or that she was at
risk of developing it as a result of using the baby powder. Id.
at 289. We thus rejected the plaintiff’s benefit-of-the-bargain
theory of injury because she “failed to allege that the economic
benefit she received from that powder was anything less than
the price she paid.” Id. at 290 (emphasis in original).
The same can be said for Thorne. Though she “pair[s]
a conclusory assertion of money lost with a request that a
defendant pay up,” Johnson & Johnson, 903 F.3d at 288, that
10
doesn’t suffice. Her pleadings concede that the tires she
bought from Pep Boys are functioning as intended and haven’t
been recalled. Unalleged, uncertain future events do not make
her Pep Boys tires worth less at the time of purchase than
equivalent registered tires. See id. at 289–90. And Thorne’s
thin allegation that Pep Boys prices the cost of complying with
the registration obligation into its tires is undermined else-
where in her complaint. For example, she formulates a sup-
posedly common class question as: “[w]hether Defendant
includes the cost of tire-registration compliance in the price of
its tires.” Am. Class Act. Compl. ¶ 65(d). Given her mixed
messages on compliance costs, Thorne fails to intelligibly
allege that she paid for more than she received. 5
Thorne’s theory of economic harm also treads on
Finkelman. As relevant here, Finkelman bought tickets to the
Super Bowl in the resale market and then sued the NFL, alleg-
ing that he paid a higher price due to the NFL’s practice of
reserving nearly all tickets for teams and League insiders. 810
F.3d at 190–91, 199. We held that Finkelman’s theory of eco-
nomic injury stood on “nothing more than supposition”
because we “ha[d] no way of knowing whether the NFL’s
withholding of tickets would have had the effect of increasing
or decreasing prices on the secondary market.” Id. at 200–01.
5
As bedrock for her requested injunction, Thorne alleged that
she “and the Class members will likely purchase tires from
Defendant again . . . and still not receive the required tire-
registration services.” Am. Class Act. Compl. ¶ 134. We
return to Johnson & Johnson: Thorne’s desire to keep buying
Pep Boys tires at prevailing prices makes it difficult to presume
that she would pay more for registered tires. See 903 F.3d at
288–89.
11
For example, League insiders—who received their tickets for
free—“might have been especially eager to resell their tickets,”
meaning that the NFL’s practices may have effectively
increased the supply and decreased the price of tickets in the
resale market relative to a scenario in which the NFL sold more
tickets to the public. Id. at 200.
Like Finkelman, Thorne propounds an economic injury
that requires speculation about market or firm-level effects.
Were Pep Boys to comply with its registration obligations,
market factors might lead it to increase its tire prices accord-
ingly. As Thorne recognizes, the submission-by-buyer method
of compliance (Option 1) does not prohibit dealers from pass-
ing on registration costs to tire buyers. On the other hand,
demand might be too elastic for Pep Boys to do so. We simply
have no way of knowing. Rather than “application of basic
economic logic,” Thorne’s theory of economic harm relies on
“pure conjecture” about what Pep Boys’s prices would be if it
“sold its [tires] differently.” See Finkelman, 810 F.3d at 201
(quotation omitted).
We recognize that one out-of-Circuit district court deci-
sion goes the other way. In Exum v. National Tire & Battery,
437 F. Supp. 3d 1141 (S.D. Fla. Jan. 28, 2020), a federal mag-
istrate judge reasoned that purchasers of unregistered tires
“have arguably purchased a less valuable product” and “can
reasonably expect that the purchase price for those tires
includes proper tire registration.” 6 Id. at 1151–52. Exum is
6
The judge in Exum declined to follow the District Court’s dis-
missal of Thorne’s original complaint based on “the specific
allegations raised” in Exum’s complaint. 437 F. Supp. 3d at
1152. But the judge noted that the cases are “similar.” Id.
12
more properly considered an intangible harm case, and we will
treat it as such. But it suffices here to note that Exum assigns
economic value through mere conjecture, contrary to our Cir-
cuit’s law. See, e.g., Johnson & Johnson, 903 F.3d at 285;
Finkelman, 810 F.3d at 201. At all events, Thorne alleges only
that she generally expected, when buying the tires, to be
“reachable” upon a recall, Am. Class Act. Compl. ¶ 55, not that
she kicked the tires on the applicable regulations or was told at
the point of sale that Pep Boys would take steps to help register
the tires. 7 Lack of awareness of an affirmation at the time of
purchase generally dooms a benefit-of-the-bargain theory of
liability. See, e.g., Cipollone v. Liggett Grp., Inc., 893 F.2d
541, 566–68 (3d Cir. 1990) (applying New Jersey law), rev’d
on other grounds, 505 U.S. 504 (1992); Gross v. Stryker Corp.,
858 F. Supp. 2d 466, 501–02 (W.D. Pa. 2012) (applying Penn-
sylvania law). We decline to adopt Exum’s economic harm
analysis here.
2. Unregistered tires not defective. Thorne also con-
tends that we should presume suitable economic injury because
an unregistered tire is per se defective under the Act. Interpret-
ing the Act requires us to examine “the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole.” Nken v. Holder, 556 U.S.
418, 426 (2009) (quotation omitted). Bearing these factors in
mind, we conclude that Thorne’s construction of the statute
falls flat because it offends the statutory definition of “defect,”
relies on grammatically flawed readings of related definitions,
and would create illogical results.
7
Thorne has not alleged that Pep Boys lacks access to her con-
tact information.
13
First, the Act’s definition of “defect” cannot bear the
weight Thorne places on it. When a statute defines a term, we
must follow that definition and “exclude[] unstated meanings
of that term.” Meese v. Keene, 481 U.S. 465, 484 (1987) (cita-
tion omitted). The Act defines “defect” to mean “any defect in
performance, construction, a component, or material of a motor
vehicle or motor vehicle equipment.” 49 U.S.C. § 30102(a)(3).
The definition by its terms embraces faulty physical character-
istics, not registration (i.e., paperwork) deficiencies. Besides,
other provisions of the Act suggest that non-compliance is not
synonymous with defect. See, e.g., 49 U.S.C. § 30118(b)(1)
(“Secretary [of Transportation] may make a final decision that
a motor vehicle or replacement equipment contains a defect
related to motor vehicle safety or does not comply with an
applicable motor vehicle safety standard prescribed [hereun-
der].”) (emphases added); id. § 30116(a) (“If . . . it is decided
that the vehicle or equipment contains a defect related to motor
vehicle safety or does not comply with applicable motor
vehicle safety standards . . . .”) (emphases added). The defini-
tion of “defect” and other provisions’ contemplation of that
term seriously undermine Thorne’s reading.
Second, we decline Thorne’s invitation to contort other
related definitions in the Act. According to Thorne, noncom-
pliance can amount to a defect because:
[A] defect in original equipment or non-
compliance of original equipment with a motor
vehicle safety standard prescribed under this
chapter, is deemed to be a defect or non-
compliance of the motor vehicle in or on which
the equipment was installed at the time of
delivery to the first purchaser.
14
49 U.S.C. § 30102(b)(1)(F); Appellant’s Br. 18. “[O]riginal
equipment means motor vehicle equipment (including a tire)
installed in or on a motor vehicle at the time of delivery to the
first purchaser.” Id. § 30102(b)(1)(C). For one thing, the
defined term “motor vehicle safety standard” means “a
minimum standard for motor vehicle or motor vehicle
equipment performance.” Id. § 30102(a)(10). Thorne never
explains how deficient registration amounts to a performance
issue. For another, Thorne’s contention that the “first
purchaser” of original equipment can be the first purchaser of
a tire violates the last-antecedent rule. See, e.g., Jama v.
Immigr. & Customs Enf’t, 543 U.S. 335, 343 (2005) (confirm-
ing that “a limiting clause or phrase . . . should ordinarily be
read as modifying only the noun or phrase that it immediately
follows” (citation omitted)). In the definition of “original
equipment,” the term “first purchaser” immediately follows “a
motor vehicle,” not “a tire.”
Third, Thorne’s argument would create illogical results.
Consider that the Act sometimes regards the maker of a new
car as the manufacturer of the car’s stock tires. It crafts the
following limited definition applicable to, among others, the
tire registration subsection: “[A] manufacturer of a motor
vehicle in or on which original equipment was installed when
delivered to the first purchaser is deemed to be the
manufacturer of the equipment.” 49 U.S.C. § 30102(b)(1)(G).
But Thorne’s interpretation of “original equipment” and “first
purchaser” would mean that the manufacturer of a tire buyer’s
vehicle is considered the manufacturer of her replacement tires.
Intuitively, and considered against the balance of the statute,
such a result is absurd. “A basic principle of statutory
construction is that we should avoid a statutory interpretation
that leads to absurd results.” In re Kaiser Aluminum Corp.,
15
456 F.3d 328, 330 (3d Cir. 2006). We read the Act to more
sensibly treat aftermarket tires as “replacement equipment”—
“motor vehicle equipment (including a tire) that is not original
equipment.” 49 U.S.C. § 30102(b)(1)(D). 8
* * *
We conclude that Thorne has not alleged a tangible,
economic injury that is sufficient for standing purposes. She
has supported her benefit-of-the-bargain theory of injury with
only speculative allegations that the tires she received from Pep
Boys were worth less than what she paid for them. And her
argument that unregistered tires are defective such that we may
presume standing-worthy economic harm rests on a flawed
reading of the Act. Because we reach this conclusion on de
novo review, Thorne’s argument that the District Court made
erroneous factual findings is of no consequence. 9 We next
8
Betraying her arguments on appeal, Thorne pleaded that “44
million original equipment tires for new passenger vehicles
and 201.6 million replacement tires for passenger vehicles”
were sold in 2013. Am. Class Act. Compl. ¶ 20 (emphases
added).
9
Thorne also argues that the District Court should not have
required her to “‘allege any additional harm beyond the one
Congress has identified.’” Appellant’s Br. 37 (quoting Spokeo,
136 S. Ct. at 1549). That’s true as far as it goes. But the
“additional harm” admonition “clearly presumes that the
putative plaintiff had already suffered a de facto injury
resulting from the procedural violation.” Owner-Operator
Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 879 F.3d 339,
16
analyze Thorne’s standing under the Spokeo framework gov-
erning intangible injuries.
B. Intangible Yet Concrete Injury
Intangible injuries sometimes qualify as concrete. To
determine whether that’s the case here, we analyze Thorne’s
claim to standing by searching for evidence (a) of a close rela-
tionship between the lack of tire registration and a harm histor-
ically recognized as a basis for common-law suits and (b) that
Congress elevated the lack of tire registration to a legally cog-
nizable, concrete injury. See Spokeo, 136 S. Ct. at 1549. Our
Court has yet to decide whether a plaintiff must prevail on both
inquiries, or if demonstrating just one is sufficient. See, e.g.,
Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir.
2017) (declining to decide whether intangible injury that does
not satisfy both congressional and historical inquiries can be
concrete); Horizon, 846 F.3d at 637 (suggesting that satisfac-
tion of historical inquiry alone “is likely to be sufficient to
satisfy the injury-in-fact element of standing”). Yet we need
not reach that question today. Thorne does not have the better
of either argument.
1. No historical analogue. Thorne alleges two forms
of intangible harm: the denial of tire registration assistance in
itself, and the materially increased risk of an accident were she
unreachable due to the lack of registration upon a recall of her
tires. Though precedent does not require us to identify an exact
historical analogue that could remedy the alleged harm, “we
343 (D.C. Cir. 2018). As we explain below, because the regu-
latory violation Thorne alleges is not itself a concrete injury,
the language from Spokeo gets no traction here. See Kamal,
918 F.3d at 115.
17
still require [that] the harm be ‘of the same character of
previously existing “legally cognizable injuries.”’” Kamal,
918 F.3d at 114 (quoting Susinno, 862 F.3d at 352). Thorne
suggests two historical analogues as remedies for her alleged
harms: negligence per se and products liability. 10 Neither sug-
gestion is persuasive. 11
10
Although Thorne tries to draw a historical line to statutory
consumer protection actions, statutory actions ipso facto fall
outside common law.
11
Thorne contends that she “argued below that her alleged
harms bear a close relationship to traditional torts allowing
consumers to sue over their purchase of defective products.”
Appellant’s Br. 22 (citing ECF No. 29 at 10–11). But her
argument to the District Court was cursory, contending only
that “exposure to and harm from dangerous products” was tra-
ditionally a basis for suit in English and American courts. ECF
No. 29 at 11. Her historical arguments are so fleeting that we
could consider them forfeited. See, e.g., Pa. Dep’t of Public
Welfare v. U.S. Dep’t of Health & Human Servs., 101 F.3d 939,
945 (3d Cir. 1996) (holding that argument supported only by
“conclusory assertions” in opening and reply brief was
waived); Laborers’ Int’l Union of N. Am. v. Foster Wheeler
Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived
unless a party raises it in its opening brief, and for those
purposes ‘a passing reference to an issue . . . will not suffice . .
. .’”) (quotation omitted). But we perceive no prejudice to Pep
Boys from engaging with the merits of Thorne’s undeveloped
arguments and, given the countervailing authority, we choose
to address them on the merits. AstenJohnson, Inc. v. Columbia
Cas. Co., 562 F.3d 213, 223 n.3 (3d Cir. 2009).
18
As for negligence per se, that doctrine is not a historical
recognition of either of Thorne’s alleged harms. It merely
“establishes, by reference to a statutory scheme, the standard
of care appropriate to the underlying tort.” In re Orthopedic
Bone Screw Prods. Liab. Litig., 193 F.3d 781, 790 (3d Cir.
1999) (citation omitted) (emphasis added). It permits a fact-
finder to consider the violation of a statute or ordinance as
evidence of negligence. Rolick v. Collins Pine Co., 975 F.2d
1009, 1015 (3d Cir. 1992), cert denied, 507 U.S. 973 (1993).
But a plaintiff cannot invoke the doctrine to transform statutory
violations into proof of “liability for a separate underlying
tort.” Bone Screw, 193 F.3d at 791 (rejecting argument that
“violations themselves form a cause of action”). Nor does neg-
ligence per se obviate the need to show proximate causation or
damages. See Trichell v. Midland Credit Mgmt., Inc., 964 F.3d
990, 998 (11th Cir. 2020) (Katsas, J., sitting by designation)
(concluding that proffered historical tort analogues had “no
relationship to harms traditionally remediable in American or
English courts” because plaintiffs “jettison[ed] the bedrock
elements of reliance and damages”). Negligence per se might
help Thorne prove Pep Boys’s breach of a standard of care if a
tort action would otherwise lie at common law. But it says
nothing about that standing-critical “if” question: whether any
alleged harm caused by the breach could be remedied at com-
mon law.
Nor does Thorne’s products-liability analogue resonate
with us. Though she cites no specific regime, strict liability for
defective products (at least in Pennsylvania, where Pep Boys
is headquartered and Thorne sued) requires that “physical harm
[be] caused to the ultimate user or consumer, or to his
property.” RESTATEMENT (2D) OF TORTS § 402A, as adopted
19
in Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966). Without phys-
ical harm, neither of Thorne’s alleged injuries bears a close
relationship to harms that products-liability torts have histori-
cally remedied. Compare Kamal, 918 F.3d at 114 (determin-
ing that FACTA violation did not share close relationship with
tort suits for unreasonable publicity or breach of confidence
absent “disclosure to a third party”), with Susinno, 862 F.3d at
351–52 (noting that Congress “squarely identified” the harm
of pre-recorded calls to cell phones and that such harm is
“closely relate[d]” to common-law claim for intrusion upon
seclusion).
2. No evidence of Congress elevating either alleged
harm. Congress is “well positioned to identify intangible
harms that meet minimum Article III requirements,” Spokeo,
136 S. Ct. at 1549, so we also consider whether it “expressed
an intent to make [the] injury redressable.” Horizon, 846 F.3d
at 637. Thorne maintains that the Act’s purpose of preventing
accidents and injuries on the roadways validates private actions
to enforce the tire registration requirements. The tire registra-
tion provisions for independent dealers do not identify their
purpose. But what we glean from those provisions and from
the statutory regime as a whole persuades us that Congress did
not intend to give private attorneys general standing to redress
the “injury” of unregistered tires.
First, the titles given to sections of the tire registration
regulation and the relevant provision of the Act suggest that
their purpose is information-gathering for recordkeeping. The
title of a statute and the heading of a section are “tools available
for the resolution of [] doubt” about the meaning of a statute.
Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998)
(quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 419,
20
528–29 (1947)). Here, the title of the tire registration regula-
tion is “information requirements,” 49 C.F.R. § 574.8, and the
enabling statute is titled “[p]roviding information to, and
maintaining records on, purchasers.” 49 U.S.C. § 30117.
Thorne impugns the District Court’s characterization of the
regulation as a “procedural record-keeping statute,” Appel-
lant’s Br. 23, but that description is apt. Facially, these laws
bear no direct relation to the Act’s safety purposes.
Second, by connecting its safety goals to vehicle perfor-
mance, the Act as a whole suggests no congressional intent to
transmogrify the lack of registered tires into a concrete injury.
In Chapter 301 of Title 49, entitled “Motor Vehicle Safety,”
Congress recognized the need “to prescribe motor vehicle
safety standards” in an effort “to reduce traffic accidents and
deaths and injuries resulting from traffic accidents.” 49 U.S.C.
§ 30101; accord Buzzard v. Roadrunner Trucking, Inc., 966
F.2d 777, 781–82 (3d Cir. 1992). We emphasize that the Act
defines “motor vehicle safety standard” as a minimum
“performance” standard. 49 U.S.C. § 30102(a)(10). The defi-
nition of “motor vehicle safety” is likewise performance-
focused, referring to “design, construction, or performance” of
a motor vehicle or motor vehicle equipment. Id. § 30102(a)(9).
Tires that suffer from no performance problems but are simply
unregistered do not implicate the Act’s purpose.
Third, the Act appears to favor public over private
enforcement, both generally and as relevant to tire registration.
It authorizes the Attorney General to sue in federal court to
enjoin violations and levy civil penalties ranging from $21,000
to $105 million on those who violate the tire registration sec-
tion “or a regulation prescribed thereunder.” See 49 U.S.C. §§
21
30163(a), 30165(a)(1). The Act also contains an administra-
tive enforcement scheme under which the Secretary of Trans-
portation “require[s]” dealers to register tires, and may conduct
hearings on certain notice-related compliance issues in which
“interested person[s]” may participate. Id. §§ 30117(b)(2)(B),
30118(e). By contrast, the Act is silent on private enforcement
of the tire registration regime, only broadly preserving
common-law liability for non-compliance with (performance-
based) motor vehicle safety standards. 12 Id. § 30103(e). In
fact, this silence may have been purposeful; elsewhere the Act
contemplates private-party vindication of rights. See, e.g.,
Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a
statute but omits it in another . . . , it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.”) (quotation omitted). For example, in
the section immediately preceding the tire registration provi-
sion, the Act does set forth a private cause of action for a dis-
tributor or dealer to sue a manufacturer in federal district court
over the value of certain parts or equipment. Id. § 30116(c)
(establishing statute of limitations and remedies). If the Act
reveals any relevant congressional judgment, it is to prioritize
public enforcement over private redress for the “injury” of
unregistered tires.
12
The lack of an express private right of action to sue for defi-
cient tire registration, alone, is not what drives our standing
analysis. Even when a plaintiff leverages a duty created by one
statute to sue under other laws, an express private right of
action in the duty-generating statute is neither necessary nor
sufficient for standing. See, e.g., Steel Co., 523 U.S. at 96
(“[T]he nonexistence of a cause of action was no proper basis
for a jurisdictional dismissal.”).
22
Thorne argues that committee reports and a consumer
advocate’s Congressional testimony exhibit a connection
between tire registration and vehicle safety. But those non-
statutory data points fail to show that the congressional inquiry
favors standing. Viewed at a high level of generality, every
provision in a statute will relate to its overarching purpose. The
real question is whether the alleged statutory violation is
among the concrete harms Congress enacted the law to rem-
edy. See, e.g., Trichell, 964 F.3d at 999 (“[T]he harms against
which the statute is directed [abusive debt collection] . . . . are
a far cry from whatever injury one may suffer from receiving
in the mail a misleading communication that fails to mislead.”)
(internal quotation omitted); Kamal, 918 F.3d at 115 (“[T]he
FACTA provision [violation of which did not confer standing]
was part of Congress’s effort to prevent the concrete harm of
identity theft.”). Congress may have adopted tire registration
procedures to decrease the risk of harm to concrete safety
interests, but “[a] violation of one of th[ose] procedural
requirements may result in no [such concrete] harm.” Spokeo,
136 S. Ct. at 1550; see also Kamal, 918 F.3d at 117. The Act
gives us no reason to conclude—but does provide reason to
doubt—that Congress elevated the lack of tire registration into
an injury that is concrete for Article III purposes.
* * *
Given the attenuation between lack of tire registration
and the Act’s purpose of reducing accidents, deaths, and inju-
ries, only a definitive congressional judgment to elevate the
former into a concrete injury would favor Article III standing
under Spokeo’s congressional inquiry. Thorne points to noth-
ing that would aid her cause. In fact, the statute’s titles, defined
terms, and enforcement provisions suggest the opposite.
23
C. Speculative Injury
Even were we to assume that Thorne’s alleged injury is
sufficiently concrete, we must still address the third prong of
injury-in-fact analysis—whether an alleged harm, even if con-
crete, is hypothetical or conjectural. Spokeo, 136 S. Ct. at
1548; Johnson & Johnson, 903 F.3d at 284. This element is
intended to weed out claims that are nothing “more than an
ingenious academic exercise in the conceivable.” United
States v. Students Challenging Reg. Agency Procs. (SCRAP),
412 U.S. 669, 688–89 (1973); see also Cottrell v. Alcon Labs.,
874 F.3d 154, 168 (3d Cir. 2017).
Only Thorne’s second alleged injury—an increased risk
of harm to property or person if her unregistered tires are
recalled—fits within this framework. To be sure, a “risk of real
harm” may “satisfy the requirement of concreteness.” Spokeo,
136 S. Ct. at 1549. But the “threatened injury must be certainly
impending to constitute injury in fact.” Clapper, 568 U.S. at
409. And there must be at least a “‘substantial risk’ that the
harm will occur.” Id. at 414 n.5 (quoting Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 153–54 (2010)). Thorne
posits only an infinitesimal increase in her chances of being
injured because of Pep Boys’s failure to register her tires, so
any risk of harm—even if concrete—is no more than specula-
tive.
In Thorne’s telling, Pep Boys’s failure to register her
tires increased her risk of harm because, if the tire manufac-
turer recalls her tires, it will be unable to contact her. That, she
contends, could lead to her continuing to drive on the recalled
tires and having an accident attributable to the defect that
prompted the recall. But, as in Kamal, this threat consists of a
24
highly speculative chain of future events that does not consti-
tute a material risk of harm. 918 F.3d at 116. For the threat-
ened harm to transpire, the following independent events
would need to occur:
1) The manufacturer discovers that a collec-
tion of tires, a subset of which Thorne
bought from Pep Boys, contains a defect
able to cause property damage or personal
injury.
2) The manufacturer recalls the tires.
3) Thorne is still driving on the tires at the
time of recall.
4) Thorne is otherwise still reachable from
the information that should have been rec-
orded on the registration form at the time
of purchase.
5) Pep Boys, upon learning of the recall,
does not supply the manufacturer with
Thorne’s contact information.
6) Thorne does not learn of the recall
through other channels, such as media or
consumer reports.
7) The defect prompting the recall causes
Thorne to have an accident.
25
This threatened injury is not “certainly impending,” nor
does it present a “substantial risk.” Clapper, 568 U.S. at 409,
414 n.5. This chain of conceivable events poses some new
non-zero risk to Thorne, but her absolute chances of harm are
miniscule. See Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621
(2020) (citing Clapper for proposition that challenged act must
have “substantially increased the risk” of harm to plaintiff). In
other words, relative increase cannot be the measuring stick
because whenever the plaintiff was at zero risk before the
defendant acted, the percentage increase in her chances of
harm is “infinite.” Trichell, 964 F.3d at 1001 n.4. Without
announcing where in the logical chain a concrete injury
becomes too attenuated, we conclude that Thorne’s alleged
“‘at-risk’ . . . status” is too speculative to support standing.
Perelman v. Perelman, 793 F.3d 368, 375 (3d Cir. 2015) (no
standing to sue over risk of default on retirement obligations
where plan’s assets exceeded liabilities under accepted
accounting method).
The authority Thorne musters does not compel a differ-
ent conclusion. In DiNaples v. MRS BPO, LLC, 934 F.3d 275
(3d Cir. 2019), the defendant allegedly violated the Fair Debt
Collection Practices Act (FDCPA) by printing on the outside
of a debt collection letter a Quick Response code that, when
scanned, revealed the plaintiff’s account number. Id. at 278.
We rejected the argument that a third party would first have to
access and understand the disclosed information before the
plaintiff could have standing. The FDCPA takes aim at the
harm of privacy violations, and the chain of future events that
would produce that harm only required one step: a third party
scanning the code. For Thorne’s future injury to occur, by con-
trast, up to seven steps must be daisy chained.
26
Nor do our data breach and privacy cases assist Thorne.
Horizon dealt with the plaintiffs’ standing to sue Horizon under
the Fair Credit Reporting Act (FCRA) after unencrypted lap-
tops containing their personal information were stolen from
one of the company’s facilities. 846 F.3d at 632. Congress in
the FCRA identified as a cognizable injury unauthorized dis-
semination of personal information—harm closely related to
invasion of privacy, which traditionally was a basis for a
common-law suit. 13 Id. at 639–40. Rejecting the argument
that the harm was too speculative, the Horizon court noted that
“[t]he theft appears to have been directed towards the
acquisition of such personal information,” the laptops were un-
encrypted, and one plaintiff had been a victim of identity theft
as a result of the breach. Id. at 639 n.19. Horizon, in which a
malicious actor accessed the plaintiffs’ protected personal
information and committed identity theft, is a far cry from the
case before us.
Similarly unavailing is Long v. Se. Penn. Transp. Auth.,
903 F.3d 312 (3d Cir. 2018). The Long plaintiffs alleged that
the defendant, first, did not send them copies of their back-
ground checks before deciding not to hire them based on those
background checks and, second, did not send them notices of
their rights under the FCRA. Id. at 317. We held that the first
13
St. Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898
F.3d 351 (3d Cir. 2018), which Thorne’s counsel cited at oral
argument, has no purchase here for similar reasons. See id. at
357–58 (holding that exposure of plaintiff’s credit account
number through envelope window of debt collection letter
“‘implicate[d] a core concern animating the FDCPA—the
invasion of privacy’—and thus [wa]s closely related to” a tra-
ditional harm).
27
alleged harm was sufficiently concrete: Suffering adverse
employment action without the required consumer report was
the very harm that Congress sought to prevent, and interference
with the plaintiffs’ ability to control their personal information
was analogous to common-law invasion of privacy. Id. at 323–
24. But the second alleged injury—lack of FCRA-required
notice—was a bare procedural violation for which there was
no standing. Id. at 325. We rejected the argument that the
violation increased the risk that the plaintiffs’ claims would
lapse before they could sue. Id. Thorne’s alleged harm from
unregistered tires resembles the Long plaintiffs’ second
claimed injury much more than their first.
Finally, we acknowledge Exum’s decision that tire pur-
chasers had Article III standing to sue for a dealer’s failure to
comply with the tire registration requirement. But the Exum
opinion does not consider the level of attenuation in the logical
chain from the lack of tire registration to property damage or a
human toll. Instead, the judge’s analysis ended with the deter-
mination that lack of tire registration increased the risk that a
manufacturer would be unable to contact the owner of an
unregistered tire about a recall. 437 F. Supp. 3d at 1151. But
nothing in the Act suggests that the relevant congressional
interest is contact with a tire owner. Instead, Congress was
concerned with safe design, operation, and performance of
motor vehicles. Exum’s rationale is unpersuasive.
* * *
If Pep Boys shirked its tire registration obligations, it
committed only a “bare procedural violation” that caused nei-
ther actual harm nor a concrete material risk of harm. Even if
Thorne’s alleged harm associated with a future recall of her
28
tires were concrete, her risk of actual injury is too speculative
for Article III standing purposes. Thorne’s allegations fail to
establish an injury in fact, and so the District Court lacked
jurisdiction over her claims for money damages.
D. Other Remedies
Thorne also sought “equitable relief including restitu-
tion and/or disgorgement” of revenues and profits Pep Boys
obtained through its conduct. Am. Class Act. Compl. ¶ 113.
And she requested injunctive relief to “prevent[] Defendant
from selling unregistered tires or tires without registering those
tires with the manufacturer or providing registration cards to
consumers.” Am. Class Act. Compl. ¶ 136. Thorne arguably
forfeited her standing to seek those remedies because she pre-
sented only arguments in support of money damages. See
supra note 11. Yet her operative complaint does allege facts
targeted at restitution and injunctive relief, so we will consider
her standing vel non for these remedies on the merits. Mielo,
897 F.3d at 479. Because Johnson & Johnson is instructive,
and we see no need to reinvent the wheel, we conclude that
Thorne again lacks standing.
1. No standing to seek restitution or disgorgement.
Assuming Thorne can seek these remedies when she herself
suffered no financial loss, the allegations supporting her
request for restitution are conclusory and hinge on mere con-
jecture. She alleges that Pep Boys ignores its tire registration
obligations to spend more time selling tires and is unjustly
enriched by sales made during “the time it would have taken to
register Class Members’ tires.” Am. Class Act. Compl. ¶ 8;
accord id. ¶¶ 46, 103, 108–13. But standing doesn’t flow from
29
mere suspicion that a defendant made more money by alleg-
edly shirking a legal obligation. To take just one example, the
Johnson & Johnson plaintiff premised her restitution claim on
allegations that the defendant managed to sell more baby pow-
der than it would have had it properly informed consumers
about the safety risks. 903 F.3d at 291. We saw no standing
for two reasons that obtain here as well. First, the plaintiff
failed to allege facts that would permit the conclusion that
Johnson & Johnson made more sales than it would have. 903
F.3d at 292. That’s also true of Thorne’s allegations insofar as
they offer nothing to ground her suspicion of ill-gotten gains,
such as how long it would take Pep Boys to provide the
required tire registration service relative to the total time
required to consummate a tire sale. Second, both there and
here, the plaintiff’s theory of restitution belies her willingness,
or the willingness of others, to buy the product despite aware-
ness of the alleged risks. Id. at 291 & n.18; see Am. Class Act.
Compl. ¶ 134 (“Plaintiff and the Class members will likely
purchase tires from Defendant again or have the tires serviced,
and still not receive the required tire-registration services.”).
We determine that Thorne lacks standing to seek restitution or
disgorgement.
2. No standing to seek injunctive relief. Thorne prem-
ised her plea for injunctive relief on her allegation that she and
other putative class members will purchase tires at Pep Boys
again without receiving the required tire registration assis-
tance. But we must “afford[] [Thorne] the dignity of assuming
that she acts rationally, and that she will not act in such a way
that she will again suffer the same alleged ‘injury.’” See
Johnson & Johnson, 903 F.3d at 293. “Pleading a lack of self-
restraint may elicit sympathy but it will not typically invoke
the jurisdiction of a federal court.” McNair v. Synapse Grp.
30
Inc., 672 F.3d 213, 225 n.13 (3d Cir. 2012). Because her alle-
gations reveal that she knows of Pep Boys’s practices,
Thorne’s request for injunctive relief amounts to a “‘stop me
before I buy again’ claim” that precludes Article III standing.
Johnson & Johnson, 903 F.3d at 292–93. We thus conclude
that Thorne lacks standing to seek injunctive relief.
E. Dismissal
One final matter warrants our attention. The District
Court dismissed Thorne’s original complaint without preju-
dice, while dismissing her amended complaint “without leave
to amend.” JA16 & n.2. That disposition was incorrect. Dis-
missal for lack of standing reflects a lack of jurisdiction, so
dismissal of Thorne’s amended complaint should have been
without prejudice. See, e.g., Kamal, 918 F.3d at 119 (vacating
with-prejudice dismissal of amended complaint and remanding
for without-prejudice dismissal); Cottrell, 874 F.3d at 164 n.7
(“Because the absence of standing leaves the court without
subject matter jurisdiction to reach a decision on the merits,
dismissals ‘with prejudice’ for lack of standing are generally
improper.”) (citing Korvettes, Inc. v. Brous, 617 F.2d 1021,
1024 (3d Cir. 1980).
Pep Boys is wary of Thorne filing more standing-free
complaints, but we have no reason to question the profession-
alism or good faith of Thorne’s counsel. And, of course,
Federal Rule of Civil Procedure 11 always serves as a check
against abuse of the litigation process. The specter of serial
litigation cannot imbue the District Court with jurisdiction it
otherwise lacks.
31
V. CONCLUSION
Thorne has no tangible, concrete injury because she
hasn’t specified how to value her alleged harm, why the tires
she received were worth less than she paid for them, or how
non-compliant tires are defective under the Act. Nor has she
met the Article III standing requirements for intangible, con-
crete harms. Thorne hasn’t shown a common-law analogue to
either of her alleged harms. And neither the Act nor applicable
standing caselaw suggests that Congress intended to repose
authority in private attorneys general to enforce the tire regis-
tration regime. Even if Thorne could show an intangible but
concrete injury, the chain of events necessary for any harm to
materialize is speculative.
While we uphold the reasoning of the District Court in
dismissing Thorne’s operative complaint, we will vacate and
remand for a without-prejudice dismissal.
32