SCOTUS Vacates Ninth Circuit in Spokeo, Remands for New “Concreteness” Inquiry

The Supreme Court issued Spokeo, Inc. v. Robins, No. 13-1339, earlier this week.  In a majority opinion unlikely to make anyone happy, the Court vacated the Ninth Circuit’s decision, which held that Robins had adequately alleged Article III standing, and remanded.

A Brief Recap

Robins’ complaint alleged that Spokeo maintained an inaccurate consumer report about him on its website, in violation of the Fair Credit Reporting Act’s requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”  In particular, Robins alleged that a photo purporting to be Robins on the site wasn’t him, and that the site incorrectly stated that he was in his 50s, married, employed in a professional or technical field, has children, has a graduate degree, and is in the top 10% for wealth. 

The upshot of this disseminated misinformation, Robins alleged, was that when he was “out of work” and “actively seeking employment,” he encountered “[imminent and ongoing] actual harm to [his] employment prospects.”  

The Majority Opinion

You wouldn’t know that Robins alleged actual harm to his employment prospects by reading the majority opinion, which didn’t mention it.  Instead, the majority opinion by Justice Alito (joined by Roberts, Kennedy, and Thomas and inexplicably by Breyer and Kagan) managed to further stultify constitutional standing doctrine by seizing on the Court’s prior repetition of the phrase “concrete and particularized” in describing the “injury in fact” required for standing.  The Court now finds it obvious that these are separate, distinct requirements: (1) concrete and (2) particularized (although the Court cited no case that actually discussed these terms separately).  The Ninth Circuit, held the majority, applied the “particularized” branch but not the “concreteness” branch.

What does it mean, according to the majority, for an injury-in-fact to be “concrete” (as opposed to “particularized”)?  That it be “de facto.”  Black’s says that is Law Latin for “in point of fact,” and further defines “de facto” as “actual; existing in fact.”  So “injury-in-fact” must be, you know, “of fact” or “existing in fact.”   

Beyond citing Black’s, the majority in Spokeo relied on dictionary definitions for “concrete,” grasping at “real” and “not abstract.” Amusingly, the Court cited to the 1971 version of Webster’s.  But the current online version of Merriam-Webster's undercuts the distinction the Court tried to make between “concrete” and “particularized.”  The online “simple” definition of “concrete” is “relating to or involving specific people, things, or actions rather than general ideas or qualities.”  The “full” definition of “concrete” includes “specific, particular <a concrete proposal>.”

What else does the majority say about what injury might be “concrete” enough for standing?  A “concrete” injury can be “intangible,” the Court says.  In fact, the Court said, even the “risk of real harm” can be “concrete.” 

Rejecting the broad rule advocated by Spokeo and its supporting amici, the majority recognized that a statutory violation itself can be a concrete injury -- but not necessarily.  How can you tell when the statutory violation alone is concrete enough for standing and when it isn’t?  Well, Robins can’t just allege a “bare procedural violation”: for example, a consumer reporting agency might fail to give the required notice, but the information disseminated might be entirely accurate.  Or maybe the inaccuracy is immaterial, like an incorrect zip code.  (Clearly, Justice Alito does not deal much with U.S. mail carriers.)

Rather than attempt to apply these newly-created fine distinctions to Robins’ complaint, the majority punted to the Ninth Circuit to answer this question: “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.”

Justice Thomas’ Concurrence

Justice Thomas’ concurrence was perplexing.  At the end of just about every sentence, I said to myself, “I agree . . . but why isn’t he affirming the Ninth Circuit?”  Justice Thomas elaborated on the different functions performed by the standing doctrine when the plaintiff alleges a violation of private rights as opposed to public rights:

. . . [W]hen a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a “concrete” injury particular to himself.  . . . But the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights.  . . .

. . . Congress can create new private rights and authorize private plaintiffs to sue based simply on the violation of those private rights.  A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.

I nodded along, until the part where Justice Thomas said, “Given these principles, I agree with the Court’s decision to vacate and remand.”  Wait, what?

Attempting to apply the public rights/private rights distinction, Justice Thomas reasoned:

[A] remand is required because one claim in Robins’ complaint rests on a statutory provision that could arguably establish a private cause of action to vindicate the violation of a privately held right. Section 1681e(b) requires Robins [sic, he meant Spokeo] to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” If Congress has created a private duty owed personally to Robins to protect his information, then the violation of the legal duty suffices for Article III injury in fact. . . .

If Congress created a private duty owed personally to Robins?  The quoted section of the FCRA says “the information concerning the individual about whom the report relates.”  The FCRA also says, “Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer.”  I’m not following how Congress could have any more clearly “establish[ed] a private cause of action to vindicate the violation of a privately held right.”

Justice Ginsburg’s Dissent

The wonderfully understated dissent by Notorious RBG (joined by Justice Sotomayor) noted wryly that the Court’s prior decisions “do not discuss the separate offices of the terms ‘concrete’ and ‘particularized.’”  But even giving the term “concrete” more emphasis than in the past, Justice Ginsburg “see[s] no utility in returning this case to the Ninth Circuit to underscore what Robins’ complaint already conveys concretely: Spokeo’s misinformation ‘cause[s] actual harm to [his] employment prospects.’”  (The latter internal quote is to Robins’ complaint.)

The Bad News

To summarize: the bad news is that plaintiffs might have yet another metaphysical crapshoot to win on constitutional standing, namely, that the “injury-in-fact” must be “concrete” independent of “particularized.”  We may look forward to riveting arguments about how an effect on someone might be “real” yet “intangible,” “actual” yet currently only a “risk.”

It is unclear whether this elevation of the term “concrete” is supposed to convey something more or different than what has already been required by Lujan and a plethora of other standing cases in a much-cited passage: “[a]bstract injury is not enough. . . . The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural,’ or ‘hypothetical.’”  Lujan v. Defenders of Wildlife, 504 U.S. 555, 583 (1992).  Let us hope not.

The Good News

First in the good news department: nowhere in any of the three opinions does the newly-penned and redundant term “injury-in-law” appear.  (Since "injury" historically means "violation of a legal right," the term “injury-in-law” is like saying “violation-of-a-legal-right-in-law.”)  Spokeo, the Chamber of Commerce, and other supporting amici seized on the Chief Justice’s use of the term during oral argument in the Edwards case, and had hoped to lead the Court to the broader conclusion that a “mere” statutory violation was only an “injury-in-law,” not the injury-in-fact required by Article III.  That didn’t happen. 

Second in the good news department: the majority opinion and the concurrence both state that a statutory violation may be enough by itself to be the “injury in fact” required for Article III standing:

Majority opinion: “[T]he 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.”  (emphasis in original)

Concurrence: “A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.”