The United States Supreme Court (SCOTUS) today returned the critical case of Spokeo, Inc. v. Robins to the United States Court of Appeals for the Ninth Circuit to decide whether plaintiff Robins had established a concrete injury. While Spokeo resonates deeply in the class action milieu, but it serves also as a warning that Article III limits Congress in creating statutory injuries for private enforcement of statutes, or to compel, challenge, or enforce implementing regulations. Some statutes already enacted may be at risk.
Background: The Fair Credit Reporting Act (FCRA) grants consumers a private cause of action against any person who negligently or willfully violates any requirement imposed under FCRA regarding that consumer. Spokeo’s subscription website allegedly displayed a consumer report that inaccurately reported, among other things, that Robins was employed when Robins claims that he was unemployed and seeking employment, causing “actual harm to [his] employment prospects,” monetary injury, and emotional injury from anxiety about his “diminished employment prospects.” Robins filed a class action complaint against Spokeo, but the district court eventually dismissed Robins’ suit for failure to properly plead an injury in fact.
The United States Court of Appeals for the Ninth Circuit reversed, noting that “the violation of a statutory right is usually a sufficient injury in fact to confer [Article III] standing.” The Ninth Circuit concluded that Robins’ “alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III.”
Spokeo petitioned for certiorari arguing the question presented to SCOTUS was “[w]hether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the [Article III] jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” SCOTUS granted review despite the Solicitor General’s advice on behalf of the United States (and accompanied by the Consumer Financial Protection Bureau (CFPB) as the principle regulatory agency under the FCRA).
Ruling: SCOTUS vacated and remanded (6 – 2) to the Ninth Circuit. While the statutory qua constitutional question may be present, SCOTUS found that the Ninth Circuit failed to resolve the underlying issue:
As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both “concrete and particularized.” …. The Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.
SCOTUS did not reject the Ninth Circuit’s “usually sufficient” leaning, but found that the record below had not substantiated a concrete injury.
Injury in fact is a constitutional requirement, and “[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” ….
To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”
Yet, a complicated but conceptual intercircuit conflict raises the issue of whether a statutory violation alone is sufficient to comply with the United States Constitution’s Article III standing requirements of injury in fact (concreteness and particularity), causation, and redressability to invoke the authority of a federal court. Not only does this circuit split impact FCRA litigation, but also a wide range of statutes that create some private statutory cause of action.
Particularity and Concreteness: A primary focus of the decision is the distinction between the particularity and concreteness of injury – both well-established notions in SCOTUS precedent. As SCOTUS notes, “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” And to be concrete,
A “concrete” injury must be “de facto”; that is, it must actually exist. …. When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term – “real,” and not “abstract.” …. Concreteness, therefore, is quite different from particularization.
[emphasis in original]. The problem arising repeatedly is whether a mere de jur injury is sufficiently a de facto injury, whether it is concrete.
Tangible & Intangible Injury: SCOTUS reiterated, however, that a concrete injury does not mean a tangible injury and cited immediately to the intangible injury one may assert from a loss of Constitutional rights to Free Speech and Free Exercise of Religion. At the statutory level,
Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.
At the same time, however,
the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.
Examples abound well beyond SCOTUS’s examples such as the Federal Advisory Committee Act (FACA), to include such common requisitions as the Freedom of Information Act (FOIA).
But SCOTUS went no further, but vacated and remanded…
Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement. We take no position as to whether the Ninth Circuit’s ultimate conclusion – that Robins adequately alleged an injury in fact – was correct.
Private v. Public Rights: The substance of the right and its characterization poses the real issue in administrative law, and particularly with regard to judicial review of final agency regulations. SCOTUS did not address the critical distinction between enforcement of public rather than private rights, but Justice Thomas, concurring, did. Whether Congress was granting enforcement of a private right rather than a public right, Justice Thomas poses the problem succinctly:
These differences between legal claims brought by private plaintiffs for the violation of public and private rights underlie modern standing doctrine and explain the Court’s description of the injury-in-fact requirement. “Injury in fact” is the first of three “irreducible” requirements for Article III standing. …. The injury-in-fact requirement often stymies a private plaintiff’s attempt to vindicate the infringement of public rights. The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a “concrete” injury particular to himself. …. This requirement applies with special force when a plaintiff files suit to require an executive agency to “follow the law”; at that point, the citizen must prove that he “has sustained or is immediately in danger of sustaining a direct injury as a result of that [challenged] action and it is not sufficient that he has merely a general interest common to all members of the public.”
In that realm of public enforcement, both concreteness and particularity require a heightened showing. Spokeo does not answer this question, nor could it, but raises more questions.
Intangible Injury to Public Rights: Long accepted as a given are the concrete and particularized tangible injuries to a private right as sufficient to create Article III standing. Far less clear is the sufficiency of the intersection of intangible injuries to public rights. Spokeo does not resolve the issue, as some had hoped, but does invite future litigation to test whether Congress has attempted to recognize intangible injuries to a public right enforceable by a private party that fails to meet Article III’s injury in fact.