Wednesday, September 9, 2015
The post manages, in five short paragraphs, to put words in Linda Greenhouse’s mouth, to mischaracterize the complaint in Spokeo, to flip constitutional standing on its head, and to assert that wealthier is always better.
The post, written by Wen Fa, takes issue with a recent New York Times op-ed by Ms. Greenhouse that primarily asserted that some conservative judges have an expansive reading of the standing doctrine when it suits them for ideological purposes, as in Fisher v. University of Texas, the affirmative-action case currently pending before the Supreme Court. Ms. Greenhouse only mentions Spokeo in the last paragraph, which states in full:
Also on the court’s docket for its new term is a fascinating case that raises the question of whether Congress can confer standing by enacting a law that gives people the right to sue for a technical legal violation that might not amount to the “injury in fact” — actual harm — that would otherwise be necessary to sustain a lawsuit in federal court. The statute at issue in this case, Spokeo, Inc. v. Robins, is the Fair Credit Reporting Act. Similar citizen-suit provisions are common among federal statutes, with this case representing the tip of a very big iceberg. We’ll soon learn more about who these days stands for standing.
The PLF blog post claims that Ms. Greenhouse’s op-ed “lamented the likely result of” Spokeo. As anyone can see from the above quote from the op-ed, she did not even hint at “the likely result” of Spokeo, let alone “lament” it.
Then, PLF lets loose with this doozy of distortion:
In Spokeo v. Robins, PLF argues [presumably, the author means in the amicus brief filed by Pacific Legal Foundation] that Article III injury can’t just be created by congressional fiat, and a plaintiff who sued a website for listing him as wealthier and better educated has no standing to bring his case in federal court. The Court seems poised to adopt our argument . . . .
It is not true that Mr. Robins is just suing Spokeo “for listing him as wealthier and better educated.” That is not “all” that Mr. Robins has alleged, factually or legally. But PLF continues: “All Robins has to complain about . . . is that a person who happens to stumble upon his Spokeo page may think that he has more money and more degrees than he does in reality. But those are desirable traits.” (emphasis added)
Actually, here’s what the First Amended Complaint alleges:
31. The consumer report that Spokeo has compiled about Plaintiff Robins correctly describes his basic identifying information such as address, neighborhood, and siblings’ names; however, for an extensive period of time most of the other information was incorrect. For example, a picture Defendant reported to be an image of Robins was not in fact Plaintiff, the profile incorrectly stated he was in his 50s, that he was married, that he was employed in a professional or technical field, and that he has children.
32. While some changes have been made to Plaintiff’s profile, it continues to represent that he has a graduate degree, that his economic health is “very strong,” and that his wealth level is in the “Top 10%.”
33. Plaintiff has no way of verifying the “economic health” rating Defendant ascribes to him, and denies that his “wealth level” is accurately described.
34. Defendant’s inaccurate report is particularly harmful to Plaintiff in light of the fact that he is currently out of work and seeking employment. In fact, Mr. Robins has been actively seeking employment throughout the time that Spokeo has displayed inaccurate consumer reporting information about him and he has yet to find employment.
The complaint also alleges that Mr. Robins has suffered actual harm to his employment prospects, to his finances, and “in the form of anxiety [and] stress … about his diminished employment prospects.”
In the context of what Mr. Robins alleges, which is that he is trying to find a job, it would, in fact, usually be worse for a prospective employer to think you’re in your 50s than in your 20s, 30s, or 40s. Age discrimination does exist, and employers typically pay younger employees less than older employees. Moreover, depending on the job, it might be worse for a prospective employer to think you’re married with children rather than single and childless. Married parents have more work/life conflicts and family obligations than single people without kids. And if you’re trying to get that first entry-level position as a college grad, it very well could be worse for a prospective employer to think you hold a graduate degree and are in the “top 10%” of people in terms of wealth. The employer might think that you’re overqualified for the position, have a strong sense of entitlement, or expect a higher salary than they’re prepared to offer. Finally, if you look like George Clooney, it would generally be better if a prospective employer doesn't see a photograph purporting to be you that looks like Marty Feldman (unless, of course, the prospective employer is casting for Young Frankenstein). There are studies showing that good-looking people get hired more easily and often than unattractive people.
And those are just the facts that PLF has got wrong. In terms of legal claims, the complaint alleges that, in violation of the FCRA, Spokeo has not (1) adopted reasonable measures to ensure the accuracy of its consumer reports, (2) provided any of the statutorily-required notices to furnishers or users of information contained in the reports, or (3) provided consumers with a toll-free telephone number to request annual file disclosures.
What about PLF’s proclamation that “Article III injury can’t just be created by congressional fiat”? Actually, Congress can create new statutory rights, the violation of which will suffice to grant standing, and Congress has done so hundreds of times and for hundreds of years. As mentioned in respondent Robins' merits brief, the first Congress in 1790 authorized statutory damages for a copyright violation without proof of actual loss. And Justice Story in 1838, speaking of a common-law property right, stated, “Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than whether there has been the violation of a right. If so, the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper to remunerate him.” Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508 (C.C.D. Me. 1838). Justice Story understood this principle “from [his] earliest reading” and “considered it laid up among the very elements of the common law.”
Literally hundreds of state and federal statutes create private rights of action to encourage compliance with laws meant to protect consumers, workers, and the environment. Many of these statutes authorize statutory damages in recognition that actual damages can sometimes be difficult to prove and to incentivize private plaintiffs to enforce the law.
Spokeo and its seventeen business amici recently conceived a new way to neutralize any statute anywhere that authorizes statutory damages. That is: tar the private right of action with the newfangled pejorative “injury-in-law” (the better to distinguish it from the constitutionally-required “injury-in-fact”) and claim that violation of the statute is “technical,” “trivial,” or not a “real-world” injury – so not good enough for standing.
The sheer audacity of this argument is breathtaking. The vast majority, if not all, of the Supreme Court’s Article III standing cases involve a plaintiff suing a governmental department, agency, or official, asking a court to tell that governmental actor what to do. It is in that sense that the Court has repeatedly stated that the primary concern of the Article III standing doctrine is separation of powers – in most cases, to keep the courts out of the executive branch.
The Spokeo case is a case between private parties, not a case against the government. Here, Spokeo’s newfangled standing doctrine would tear down a pretty large section of the separation-of-powers wall. It would allow federal judges to eviscerate laws that were validly enacted by the legislative branch, by refusing to countenance the violation of those laws as “injury.” And it would nullify statutory damages by requiring proof of actual damages in order to be entitled to statutory damages.
How, exactly, would it uphold separation of powers if judges refuse to honor statutes they disagree with? And who, exactly, would have standing to sue under the FCRA, according to Spokeo and PLF, if Mr. Robins doesn’t?
The more I look into this, the bigger I think this case is.
To get back to PLF’s blog post: why does PLF think “the Court seems poised to adopt [its] argument”? Does it have inside information that five justices are ready to effectively repeal an assortment of federal statutes?