May 16, 2016

Supreme Court: Plaintiffs in federal court must show a “concrete” injury

By Deborah J. La Fetra Senior Attorney

Thomas Robins, an unemployed man, sued Spokeo, a “people search engine” that collects and publishes information about individuals, for willful violations of the Fair Credit Reporting Act (FCRA), because it published false information—specifically, that Robins was married, had a graduate degree, and was wealthy. The statute prohibits publication of false information, but the trial court held that publication of these particular “facts” did not cause Robins any real injury that gave him Article III standing. Article III of the Constitution allows federal courts to hear cases and controversies and is understood to require plaintiffs to show they suffered an actual injury; otherwise, the federal courts would be in the unconstitutional position of offering advisory opinions. The Ninth Circuit Court of Appeals in this case held that any statutory violation sufficed to confer standing, and reversed the trial court.

Today, in Spokeo, Inc. v. Robins, the Supreme Court held that the Ninth Circuit analysis was incomplete and sent it back to the court to try again. Justice Alito, writing for the majority, explained that the injury-in-fact component of Article III standing requires a plaintiff to allege an injury that is both “concrete and particularized.” The Ninth Circuit focused only on particularity and failed to determine whether Robins’ alleged injuries were “concrete.” The Supreme Court offered the Ninth Circuit some tips for determining whether an injury is concrete: A “concrete” injury “must actually exist,” it cannot be abstract. An intangible harm may still be “concrete” if it “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” For example, long-standing tort doctrine permits recovery in tort for libel or slander per se even if the plaintiff cannot precisely measure or prove the harm. Justice Thomas expanded on this point in his concurring opinion, noting that “[c]ommon-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights.”

The Court explained that “Congress is well positioned to identify intangible harms that meet minimum Article III requirements” but 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.” Thus, publication of an incorrect zip code would violate the FCRA but the Court does not envision that this statutory violation could work any concrete harm. The Court held that, in this case, Robins’ allegation of a “bare procedural violation, divorced from any concrete harm” could not satisfy the injury-in-fact requirement. It did not take a position on whether, given the opportunity, Robins would be able to meet the “concreteness” element on remand.

Unfortunately, for the second time, the Court left unanswered the larger question—the subject of PLF’s amicus brief—of whether Congress can create Article III standing simply by announcing in the text of a statute that anyone can sue to enforce the statute. The question was presented in First American Corp. v. Edwards, also from the Ninth Circuit, and dismissed without an opinion on the last day of the 2011 Term. The cert petition in this case expressly sought the decision that was denied by the Edwards dismissal. Alas, it was not to be. However, the Ninth Circuit’s practice of doubling down on its own decisions should create continued conflicts among the Circuits and new vehicles for the issue eventually to make its way back to the Supreme Court.

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