First-year law students learn that the Constitution requires lawsuits in federal court to be based on claims of sufficient injury to establish standing to sue. When the Justices return to the bench in the fall, they will tackle the question whether it is enough for that injury to be based on the violation of rights created by Congress in a federal statute.
The case, Spokeo, Inc. v. Robins, raises the important question whether Congress can create a cause of action in a statute that will satisfy the requirement for actual injury that comes from the Constitution or whether there must be additional evidence of harm.
The answer is important as a theoretical matter in further defining the role of Congress and the contours of the constitutional separation of powers. The answer also has enormous practical importance because, according to some briefs filed in the case, there are many federal causes of action that raise this issue and that open the door to lawsuits, including potentially large and costly class actions.
The case should be of interest to students in constitutional law, civil procedure, and federal courts, as well as to those studying litigation and clinical programs involving federal jurisdiction. The dimensions of constitutional standing arise as an issue in many contexts and cases.
The lawsuit was filed by Thomas Robins against Spokeo, an information-searching company that gathers public data about individuals and provides reports with details ranging from address, phone number, and age to employment status, education, relatives, and wealth. Robins alleged that Spokeo had false information about him available on the website, including his age, wealth, marital status, employment, and that he held a graduate degree. At the time, Robins was unemployed; he contended that the information on the website, including listing him as having a job, made it more difficult for him to find employment and prolonged his joblessness.
Robins sued Spokeo for violation of the Fair Credit Reporting Act, a federal law that is designed to protect consumers from the harm of false credit reports and to regulate practices of the credit reporting industry. The law sets standards for the care and accuracy of credit reporting and for the ways in which recipients of credit reports may use the information. Congress created a cause of action for consumers against companies that violate the law, with claims of negligence subject to actual damages, and those for willful or reckless conduct subject to presumed damages set by the law and to punitive damages determined by a judge.
When Robins sued, a federal district court in Los Angeles at first said he had failed to allege sufficient injury, then said his amended lawsuit could proceed, then again dismissed the case for lack of actual injury. A panel of the U.S. Court of Appeals for the Ninth Circuit ruled, by a vote of three to zero, that the harm Robins claimed under the federal law was sufficient to satisfy the standing requirement, at least in part because Robins claimed the injury of prolonged unemployment and emotional stress, both attributable at least in part to the alleged misinformation maintained by Spokeo.
The case presents a number of interesting and complex angles to consider. But first, a brief word about standing. The Supreme Court has long held that the Constitution requires those filing lawsuits in federal courts to satisfy the requirements for standing, meaning proper credentials to bring the case. Article III of the Constitution provides that the Supreme Court, and by extension the federal courts created by Congress, shall decide genuine “cases” or “controversies.” This, the Court has said, means that someone who files a lawsuit must assert either an actual injury or an injury in fact, must show that the injury was caused by the object of the lawsuit, and must demonstrate that the injury is the kind that can be redressed by courts. This is the standing formula: injury, causation, and redressability; without these elements, lawsuits may not proceed.
What makes this case interesting is the question of what role Congress may play in creating standing. What makes this case more complex is that there appears to be a factual dispute about whether the lawsuit actually turns on the power of Congress to create standing or whether Robins actually has a sufficient claim of injury to satisfy the requirements of Article III.
The Supreme Court has indicated on a number of occasions that the injury requirement for standing is not a theoretical or abstract one for which Congress can simply create new statutory rights and presume standing will follow if there is a violation of the statute. Standing means an individual plaintiff must be able to show tangible, personal injury, not generic statutory injury, the Court has said. Translating this point to the case of Thomas Robins, Spokeo maintains that the only harm asserted by Robins was that he was unemployed and was worried that the information on Spokeo’s website would make it harder for him to find a job or get credit or insurance. This, Spokeo said, is insufficient to satisfy Article III’s injury requirement and relies, instead, solely on the fact that Congress created a cause of action in the Fair Credit Reporting Act. When Congress allows a cause of action that does not require a showing of actual injury, Spokeo argues, Article III’s requirements are not satisfied.
Here is where the case takes a strange twist. The Ninth Circuit found that Robins did assert sufficient injury based on Spokeo’s alleged violations of the Fair Credit Reporting Act and ruled that the violations of the federal law are the kind of wrongs that Congress can determine to satisfy the requirements for standing. When Spokeo filed its petition for certiorari to the Supreme Court, the Justices asked the Solicitor General to file a brief expressing the government’s view of the case and the statute. The Solicitor General filed a brief in which he argued that Robins had asserted sufficient actual injury from the publication of false information about himself, and he suggested that the major constitutional question raised by Spokeo about Congress’s power to create standing is not really presented by the case. The Solicitor General urged the Court to deny review in the case, which would allow the lawsuit by Robins to proceed.
But in April, rejecting the recommendation of the Solicitor General, the Justices voted to hear the case in the next Court Term. As a result, the strange twists in the case continue, with briefs supporting Spokeo seemingly arguing right past Robins and the federal government’s view, and perhaps past the Ninth Circuit, too.
Numerous friend-of-the-court briefs filed to support Spokeo warn that the Ninth Circuit’s interpretation would open up the Fair Credit Reporting Act and other privacy-oriented federal statutes to the filing of sweeping class action lawsuits on behalf of anyone who was subject to violations of such federal laws. In one brief, for example, the U.S. Chamber of Commerce argues that “[t]here are dozens of federal laws similar to the one at issue here, all of which could be read to authorize suit against businesses by plaintiffs who have suffered no actual, concrete, or particularized injury.” Other organizations join this cry, from eBay, Facebook, Google, and Twitter to Time, Inc., National Public Radio, and the American Bankers Association, warning of abusive class action lawsuits that will result from the Ninth Circuit’s approach.
The Ninth Circuit’s decision makes clear, however, that Robins has standing because he is asserting injury directly to himself, not as a general part of a group, and because the nature of the injury is also individual, not collective. Moreover, because Spokeo appealed before there was a trial, the case has reached the Supreme Court without any decisions on whether Robins has actually sustained injury at the hands of Spokeo. And while the business community supports Spokeo by warning of the dangers of broad class action lawsuits, there has been no ruling on whether this case is or even could be a class action.
Where will these strange twists lead? Will the Supreme Court decide an important constitutional question about the power of Congress as it relates to Article III standing and injury? Or will the Justices find that the dispute turns largely on contested facts and does not lend itself to clarification of constitutional questions? Stay tuned.
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