iThe Court holds that allegation of a statutory violation is not solely sufficient to satisfy the “concrete harm” requirement for purposes of Article III standing in federal court.
On May 16, the US Supreme Court issued its decision in Spokeo v. Robins, ruling that an allegation of statutory violation of the Fair Credit Reporting Act (FCRA) is not, by itself, enough to meet the Article III standing requirement. In a 6-2 decision authored by Justice Samuel Alito, the Court held that the US Court of Appeals for the Ninth Circuit improperly failed to consider whether procedural violations of the statute alleged by Robins constituted a “concrete” harm, which is required under the injury-in-fact requirement of the test for standing.
Background
Spokeo, Inc. operates a website that provides users with background information about other individuals, such as “contact data, marital status, age, occupation, economic health, and wealth level.”[1] Plaintiff Thomas Robins sued Spokeo for willful violation of the FCRA, 15 U.S.C. § 1681 et seq., for providing inaccurate information about him, including that he was married, possessed a graduate degree, and was wealthy. The district court granted Spokeo’s motion to dismiss Robins’s complaint. The court characterized his alleged injury as involving allegations “that he has been unsuccessful in seeking employment, and that he is concerned that the inaccuracies in his report will affect his ability to obtain credit, employment, insurance, and the like.”[2] The district court further noted that “[a]llegations of possible future injury do not satisfy the [standing] requirements of Art. III.”[3] The district court also dismissed Robins’s amended complaint in which he alleged that Spokeo’s “marketing of inaccurate consumer reporting information about” him caused “actual harm to [his] employment prospects”[4] and that being unemployed cost him money, as well as “anxiety, stress, concern, and/or worry about his diminished employment prospects.”[5] The district court held that such allegations of injury “were not traceable to Spokeo’s alleged violations.”[6]
On appeal, the Ninth Circuit reversed. It held that where “the statutory cause of action does not require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages.”[7] The Ninth Circuit found that because the FCRA enables a party to sue for willful violations, as alleged here, Robins satisfied the injury-in-fact requirement for Article III standing because (1) Spokeo allegedly violated his statutory rights and (2) “the interests protected by the statutory rights at issue are sufficiently concrete and particularized.”[8] The Ninth Circuit recognized that “the Constitution limits the power of Congress to confer standing,”[9] and found that the limits were honored by Congress because Robins alleged that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and because his “personal interests in the handling of his credit information are individualized rather than collective.”[10]
The Supreme Court granted certiorari on the question “Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”[11] Given the scope and potential effect of the Court’s ruling on this question, the decision in this case has been highly anticipated, and numerous courts across the United States have stayed proceedings in cases alleging violations of the FCRA or similar statutes pending the outcome.
The Court’s Decision
The Court vacated and remanded the case to the Ninth Circuit, concluding that because the Ninth Circuit failed to consider both aspects of the injury-in-fact analysis—whether the alleged injury is “particularized” and “concrete”—ignoring the latter, the Ninth Circuit’s Article III standing analysis was incomplete.
The Court started with a review of the origin and purpose of the standing requirement, rooted in the “cases” and “controversies” requirements of Article III of the US Constitution.[12] The Court explained that the doctrine, developed through case law, is intended to “ensure that federal courts do not exceed their authority” using their power “to usurp the powers of the political branches.”[13] The Court recited the three elements of standing, including that plaintiffs must have suffered an injury in fact that is fairly traceable to the challenged conduct of the defendant and that is likely to be redressed by a favorable judicial decision, and noted that at the pleading stage, the plaintiff must clearly allege facts demonstrating each element.[14]
Turning to the first requirement, the Court emphasized that the injury-in-fact requirement is rooted in the Constitution and thus “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue.”[15] The Court opined that the injury-in-fact analysis requires an examination of a plaintiff’s particularized and concrete injury. For an injury to be “particularized,” it must affect the plaintiff in a personal and individual manner.[16] For an injury to be “concrete,” it must be “real” and not abstract.[17] The Court found that the Ninth Circuit’s analysis regarding injury in fact was incomplete because it focused only on the requirement that the injury at issue be “particularized” and did not analyze whether Robins had alleged an injury under the FCRA that was also “concrete.”[18]
Discussing the requirement that an injury be “concrete,” the Court explained that such an injury cannot be “abstract” but must be “real” and “must actually exist.”[19] Although recognizing that “Congress is positioned to identify intangible harms that meet minimum Article III requirements” and that its judgment is “instructive and important,” the Court cautioned that this “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”: [20]
Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement. . . . A violation of one of the FCRA’s procedural requirements may result in no harm.[21]
Discussing Robins’s allegations under the FCRA, the Court noted that disseminating inaccurate information might fail to meet the requirements. For example, the Court wrote that “[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” The Court did not otherwise express any opinion about the proper outcome in the case and remanded to the Ninth Circuit for further consideration of whether the alleged procedural violations “entail a degree of risk sufficient to meet the concreteness requirement.” [22]
Looking Ahead
Some may say that the Court’s decision is limited in that it simply faulted the Ninth Circuit for failing to provide an adequate injury-in-fact analysis and remanded for further proceedings. But looking deeper, the Court’s conclusion that the allegation of a statutory violation provided by Congress is not, by itself, necessarily sufficient for Article III standing may have an immediate and perhaps far-reaching effect on a wide range of litigation in federal court, both under the FCRA and a host of other federal laws that are popular vehicles for class action litigation. Questions of standing have become significant in consumer and other class action litigation, particularly in the burgeoning area of privacy- and cybersecurity-related class cases. It is now clear that a statutory right is not necessarily sufficient to establish Article III standing. A federal court must identify not only a statutory right, but also the concrete and particularized “real-world” harm that the statutory right protects in order to satisfy Article III’s requirements. In addition, the Court’s decision is important for its emphasis on the fact that plaintiffs bear the pleading burden to demonstrate the elements of standing.
As noted in the dissent by Justice Ruth Bader Ginsburg, the Court’s emphasis on the requirement that an injury be sufficiently “concrete,” separate from the requirement that it be “particularized,” is notable. Many courts have typically discussed and treated those requirements together. The Court’s clear guidance that these are distinct requirements will likely generate additional attention and analysis on the part of courts considering the injury-in-fact requirement of Article III.
The Court’s decision also leaves open questions, most obviously how the Ninth Circuit will interpret and apply the requirement that it consider on remand whether the allegations of injury by Robins meet the “concreteness” requirement for standing. Notably, although the Court expresses doubt that an inaccurate zip code would be sufficient to meet the requirement, the incorrect information that Spokeo allegedly disseminated about Robins included information of significance, such as marital status, income, and education. Going forward, there will likely be a significant battle among litigants regarding what constitutes a sufficiently “concrete” injury that is not “tangible.” Additional questions may focus on the fact that the decision speaks to federal courts, and what effect (if any) the decision may have on the state courts. The plaintiffs’ class action bar has already indicated that the decision may result in the filing of certain statutory violation cases in state court where the applicable statute provides concurrent jurisdiction.
[1] Robins v. Spokeo, Inc., 742 F. 3d 409, 410 (9th Cir. 2014).
[2] Id.
[3] Id. at 410-11.
[4] Id. at 411.
[5] Id.
[6] Id.
[7] Id. at 413 (emphasis added).
[8] Id.
[9] Id.
[10] Id. (emphasis in original).
[11] No. 13-1339, cert. granted (U.S. Apr. 27, 2015), Question Presented
[12] Slip copy at 6.
[13] Id. (citing Clapper v. Amnesty Int’l USA, 568 U.S. ___, ___ (2013).
[14] Id. at 6.
[15] Id. at 7.
[16] Id. at 7 (citing cases).
[17] Id.
[18] Id. at 8.
[19] Id.
[20] Id. at 9
[21] Id. at 9-10 (emphasis added).
[22] Id. at 11.
