Amitabho Chattopadhyay v. Bbva USA

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2021
• Docket: 21-15017
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AMITABHO CHATTOPADHYAY; No. 21-15017 VITALII TYMCHYSHYN, individually and on behalf of all others similarly situated, D.C. No. 4:19-cv-01541-JST

Plaintiffs-Appellants, MEMORANDUM* v.

BBVA USA, FKA Compass Bank,

Defendant-Appellee,

and

BBVA COMPASS BANCSHARES, INC.; et al.,

Defendants.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Argued and Submitted September 14, 2021 San Francisco, California

Before: WALLACE, SCHROEDER, and FORREST, Circuit Judges.

Amitabho Chattopadhyay and Vitalii Tymchyshyn (collectively, Plaintiffs)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal from the district court’s dismissal of their action for lack of Article III

standing. Plaintiffs, who are non-U.S. citizens, alleged that Defendant BBVA USA

(BBVA) violated 42 U.S.C. § 1981 and the California Unruh Civil Rights Act

(Unruh Act), Cal. Civ. Code § 51 et seq., by discriminating against them on the basis

of citizenship. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

We review “a motion to dismiss for lack of standing de novo, construing the

factual allegations in the complaint in favor of the plaintiffs.” Mont. Shooting Sports

Ass’n v. Holder, 727 F.3d 975, 979 (9th Cir. 2013). “At the pleading stage, general

factual allegations of injury resulting from the defendant’s conduct may suffice, for

on a motion to dismiss we presum[e] that general allegations embrace those specific

facts that are necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992) (citation and quotation marks omitted). To satisfy Article III

standing, a plaintiff “must 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.” Spokeo, Inc. v. Robins, 578 U.S. 330,

338 (2016). The issues in this appeal are whether the first two elements are met.

First, Plaintiffs have alleged an injury-in-fact sufficient to confer Article III

standing. To establish an injury-in-fact, a plaintiff must show that he suffered “an

invasion of a legally protected interest” that is “concrete and particularized” and

“actual or imminent, not conjectural or hypothetical.” Lujan, 540 U.S. at 560

2 (citations and quotation marks omitted).

Plaintiffs have a legally protected interest in making contracts free of

citizenship discrimination under Section 1981 and the Unruh Act. Section 1981

protects the “same right . . . to make . . . contracts . . . as is enjoyed by white citizens.”

42 U.S.C. § 1981(a). “The statute prohibits, when based on [citizenship], . . . the

offer to make a contract only on discriminatory terms.” Patterson v. McLean Credit

Union, 491 U.S. 164, 176–77 (1989), superseded by statute on other grounds.

Similarly, the Unruh Act “protect[s] each person’s inherent right to ‘full and equal’

access to ‘all business establishments.’” White v. Square, Inc., 7 Cal. 5th 1019, 1025

(2019) (quoting Cal. Civ. Code § 51(b)). The Unruh Act prohibits a business from

offering “discriminatory terms” that “exclude the person from full and equal access

to its services . . . .” Id. at 1032. Thus, Section 1981 and the Unruh Act protect

Plaintiffs’ right to contract free of citizenship discrimination, which includes making

contracts on the same terms offered to U.S. citizens.

Plaintiffs’ allegations also satisfy Article III’s requirement for a concrete

injury. Plaintiffs alleged that BBVA offered them contracts on discriminatory terms

because of their citizenship. Whereas BBVA allows U.S. citizens to apply for a new

checking account online, BBVA required Plaintiffs––based solely on their status as

non-U.S. citizens––to apply for a new checking account in person at a branch office.

Because “discrimination itself . . . can cause serious non-economic injuries to those

3 persons who are denied equal treatment solely because of their membership in a

disfavored group,” Plaintiffs have alleged a concrete injury-in-fact sufficient to

confer Article III standing. White v. Square, Inc., 891 F.3d 1174, 1177 (9th Cir.

2018) (quoting Heckler v. Mathews, 465 U.S. 728, 739–40 (1984)); see also Barr v.

Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2355 (2020) (“[A] plaintiff

who suffers unequal treatment has standing to challenge a discriminatory exception

that favors others.” (citing Heckler, 465 U.S. at 737–40)). The fact that Plaintiffs

would have ultimately obtained the same checking account given to U.S. citizens

does not vitiate the alleged discriminatory injury: that BBVA imposes on non-U.S.

citizens a requirement to apply in person that it does not impose on others. See

Patterson, 491 U.S. at 176–77; cf. White, 7 Cal. 5th at 1030–31 (explaining that

black customers, even if offered the same product, “experienced the application of a

discriminatory policy” by being required to pay with cash while white customers

could pay with credit).

Second, Plaintiffs have alleged an injury “fairly traceable to the challenged

action of the defendant, and not the result of the independent action of some third

party not before the court,” because the injury was the direct result of BBVA’s

policy. Lujan, 504 U.S. at 560 (quotation marks and alterations omitted).

We express no view on whether Plaintiffs have valid claims sufficient to

survive BBVA’s motion to dismiss under Rule 12(b)(6). We hold only that

4 Plaintiffs’ allegations satisfy Article III’s requirements for a concrete injury-in-fact

that is fairly traceable to BBVA’s conduct.

REVERSED and REMANDED.