Friday, December 6, 2019
SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)
(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”
Friday, November 8, 2019
Today Judge Klausner of the U.S. District Court for the Central District of California certified both a damages class and an injunctive relief class in Morgan v. United States Soccer Federation. The plaintiffs are members of the U.S. Women’s National Soccer Team, alleging violations of the Equal Pay Act and Title VII based on discrepancies in pay between them and the Men’s National Team.
Here is today’s order:
Friday, October 4, 2019
The Friday Before First Monday: SCOTUS Cert Grant in Louisiana Abortion Case Presents Questions About Standing
Today the Supreme Court granted petitions for certiorari arising from a challenge to Louisiana’s abortion regulations. The cases are June Medical Services LLC v. Gee (18-1323), and Gee v. June Medical Services, LLC (18-1460).
The first petition asks whether the Louisiana law is unconstitutional, especially in light of the Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). The second petition is about standing, presenting the following questions:
1. Can abortion providers be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf?
2. Are objections to prudential standing waivable (per the Fourth, Fifth, Seventh, Ninth, Tenth, and Federal Circuits) or non-waivable (per the D.C., Second, and Sixth Circuits)?
Friday, September 13, 2019
Today, the Second Circuit issued its decision in Citizens for Responsibility and Ethics in Washington v. Trump, a lawsuit against President Trump alleging violations of the Emoluments Clauses of the U.S. Constitution. Judge Leval’s majority opinion begins:
Plaintiffs—Eric Goode, a restaurateur and hotelier, and Restaurant Opportunities Center United (“ROC”), a non‐partisan, member‐based organization of restaurants and restaurant workers—appeal from the judgment of the United States District Court for the Southern District of New York (Daniels, J.) dismissing their complaint against Defendant Donald J. Trump, the President of the United States, for lack of subject matter jurisdiction. The complaint seeks declaratory and injunctive relief for the President’s alleged violations of the Domestic and Foreign Emoluments Clauses of the United States Constitution. The President moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs did not have standing to sue. The district court granted the motion, concluding that Plaintiffs lack Article III standing, they fall outside the zone of interests of the Emoluments Clauses, their claims do not present a ripe case or controversy within the meaning of Article III, and their suit is barred by the political question doctrine. For the reasons below, we vacate the judgment and remand for further proceedings.
Judge Walker authored a dissenting opinion.
Tuesday, July 23, 2019
Seth Davis has published The New Public Standing, 71 Stan. L. Rev. 1229 (2019). Here’s the abstract:
Today’s public litigants are not citizens or individual taxpayers who, suffering no injury of their own, seek instead to stand for the public. Instead, they are states that have suffered financial injuries. In recent years, states have brought many high-profile public law cases against the federal government based upon financial injuries. State standing to sue the federal government for financial injuries is the new public standing.
This Article’s goal is to offer a comprehensive account of the new public standing. It argues that we should not hope—or expect—that the federal courts will treat the new public standing with the disfavor they have shown to citizen and taxpayer standing. Nor, however, should we hope or expect that the federal courts will treat the new public standing as indistinguishable from private standing based upon financial injuries.
One aspect of this thesis is doctrinal and normative. Under the U.S. Supreme Court’s Article III jurisprudence, financial injuries are the paradigmatic example of an injury in fact that supports standing to sue, as contrasted with an ideological injury that does not suffice for standing. What makes the new public standing doctrinally difficult is that while some financial injuries to states mirror those to private parties, others do not. And what makes these cases normatively difficult is that the state attorneys general who sue based upon financial injuries to their states are ideological litigants. The new public standing thus requires us to rethink the terms of the debate about state standing to sue the federal government.
Another aspect of this thesis is descriptive and positive. To ground its normative analysis, this Article attempts to identify the ideological, institutional, and political factors that have contributed to the new public standing and that will shape its future prospects. Analysis of these factors leads to the conclusion that the Court will preserve the new public standing while tinkering with its remedial scope. The new public standing will prove more durable than citizen and taxpayer standing for the public, but will not substitute for the promise of an individual standing upon her conscience in federal court.
Monday, June 17, 2019
SCOTUS Decision in Virginia House of Delegates v. Bethune-Hill: Virginia House Lacks Standing to Appeal Ruling Striking Down 2011 Legislative Districts
Today the Supreme Court issued a 5-4 decision in Virginia House of Delegates v. Bethune-Hill. Justice Ginsburg authors the majority opinion, joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. The Court rules that the Virginia House of Delegates lacks standing to appeal a three-judge district court’s decision that Virginia’s 2011 legislative districts had been racially gerrymandered in violation of the Equal Protection Clause.
The majority first rejects the argument that the State of Virginia had designated its House of Delegates to litigate on its behalf. It then finds that the House of Delegates lacks “standing in its own right,” because it had suffered no “legally and judicially cognizable” injury. Justice Ginsburg writes: “This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.”
Justice Alito authors a dissenting opinion, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh.
Wednesday, March 20, 2019
Today the Supreme Court issued its decision in Frank v. Gaos (covered earlier here). The Court had initially granted certiorari to decide “[w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’” Following oral argument, however, the Court ordered supplemental briefing on whether any plaintiff had Article III standing under the Supreme Court’s 2016 decision in Spokeo v. Robins.
Today’s per curiam opinion remands the case for the lower courts to consider the standing question:
After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.
Justice Thomas dissented. He would have found that the plaintiffs’ allegations were sufficient to establish standing but that “the class action should not have been certified, and the settlement should not have been approved.”
Tuesday, August 7, 2018
Ray Brescia has published On Objects and Sovereigns: The Emerging Frontiers of State Standing, 96 Or. L. Rev. 363 (2018). From the conclusion:
By taking positions at time adverse to the federal government in the courts through public law litigation, regardless of the administration or political party in power, states can serve as political and constitutional counterweights when they perceive that the federal government is threatening their interests and those of their constituents. They do this by bringing very public law litigation and making sweeping allegations of unconstitutional behavior of the federal government. States appear able to pursue such claims through the federal courts, even when the courts have expressed a reluctance to recognize state authority to sue in a representational capacity and when standing doctrine more generally appears less willing to recognize public harms. By characterizing the harms they allege as those that resemble what a private litigant might assert, however, states appear to have found an approach to vindicating public law interests dressed down in the raiment of private law harms. By doing so, their claims appear to have faced courts more receptive to such harms and more willing to entertaining such suits. Whether this approach generates the type of concrete adverseness the standing doctrine is supposed to surface and brings to light the true nature of the harms at stake that deserve attention by the courts, remains to be seen.
Thursday, July 26, 2018
SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census
Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:
Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.
In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.
Thursday, June 21, 2018
Sarah Swan has published Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018). Here’s the abstract:
When cities are involved in litigation, it is most often as defendants. However, in the last few decades, cities have emerged as aggressive plaintiffs, bringing forward hundreds of mass-tort style claims. From suing gun manufacturers for the scourge of gun violence, to bringing actions against banks for the consequences of the subprime mortgage crisis, to initiating claims against pharmaceutical companies for opioid-related deaths and injuries, plaintiff cities are using litigation to pursue the perpetrators of the social harms that have devastated their constituents and their communities.
Many courts and commentators have criticized these plaintiff city claims on numerous grounds. They argue that, as a doctrinal matter, cities lack standing, fail to meet causation standards, and stretch causes of action like public nuisance beyond all reasonable limits. Further, they argue that, as a theoretical matter, plaintiff cities are impermissibly using litigation as regulation, overstepping their limited authority as “creatures of the state,” and usurping the political and legislative process. This Article demonstrates that each of these critiques is mistaken. Plaintiff city claims are legally, morally, and sociologically legitimate. And, as a practical matter, they are financially feasible even for cash-strapped or bankrupt cities. Moving beyond mere economic accounting, though, plaintiff city claims have value of a different sort: for plaintiff cities, litigation is a form of state building. By serving as plaintiffs and seeking redress for the harms that impact a city’s most vulnerable residents, plaintiff cities are demanding recognition not just for those impacted constituents, but also for themselves, as distinct and meaningful polities. In so doing, plaintiff cities are renegotiating the practical and theoretical meaning of cities within the existing political order, and opening up new potential paths for urban social justice.
Monday, April 23, 2018
Today a panel of the Ninth Circuit issued its decision in Naruto v. Slater (the Monkey Selfie case), covered earlier here. People for the Ethical Treatment of Animals (PETA) brought suit as the next friend of Naruto, who “was a seven-year-old crested macaque that lived—and may still live—in a reserve on the island of Sulawesi, Indonesia.” The majority opinion by Judge Carlos Bea begins:
We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.
Although the majority opinion stated that “[w]e gravely doubt that PETA can validly assert ‘next friend’ status to represent claims made for the monkey,” it wrote:
Even so, we must proceed to the merits because Naruto’s lack of a next friend does not destroy his standing to sue, as having a ‘case or controversy’ under Article III of the Constitution. Federal Rule of Civil Procedure 17, which authorizes “next friend” lawsuits, obligates the court “to consider whether [incompetent parties] are adequately protected,” even where they have no “next friend” or “guardian.” U.S. v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986). Within this obligation, the court has “broad discretion and need not appoint a guardian ad litem [or next friend] if it determines the person is or can be otherwise adequately protected.” Id. (citing Roberts v. Ohio Casualty Ins. Co., 2556 F.2d 35, 39 (5th Cir. 1958) (“Rule 17(c) does not make the appointment of a guardian ad litem mandatory.”)). See also Harris v. Mangum, 863 F.3d 1133, 1139 n.2 (9th Cir. 2017) (noting circumstances in which “appointing a guardian ad litem . . . could hinder the purpose of Rule 17(c),” and thus was not required). For example, “the court may find that the incompetent person’s interests would be adequately protected by the appointment of a lawyer.” Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (citing Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir. 1946). Indeed, courts have done just this, and the fact that those courts did not then dismiss the case proves that the lack of a next friend does not destroy an incompetent party’s standing. See, e.g., Westcott, 158 F.2d at 22 (affirming judgment against minor who was represented by an attorney but not a guardian ad litem).
Proceeding to Naruto’s constitutional standing, the majority concluded that Naruto’s claim satisfied Article III:
Here, the complaint alleges that Naruto is the author and owner of the Monkey Selfies. The complaint further alleges that Naruto has suffered concrete and particularized economic harms as a result of the infringing conduct by the Appellees, harms that can be redressed by a judgment declaring Naruto as the author and owner of the Monkey Selfies.
In reaching these conclusions, the majority found that it was bound by an earlier Ninth Circuit decision—Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004). In a footnote, however, the majority argued that Cetacean was “incorrectly decided” and “needs reexamination.”
Ultimately, the panel found that the district court correctly dismissed the case because “Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.”
Judge N.R. Smith wrote a concurring opinion that disagreed with the majority’s handling of PETA’s lack of next-friend standing.
Wednesday, March 7, 2018
Today the Ninth Circuit issued its decision in In re United States of America (earlier coverage of the case here). As the opinion describes the litigation: “Twenty-one young plaintiffs brought suit against the United States, the President, and various Executive Branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights.”
The district court had denied the defendants’ motion to dismiss the case for lack of jurisdiction and failure to state a claim, prompting the defendants to seek a writ of mandamus from the Ninth Circuit. Chief Judge Sidney Thomas authors a unanimous opinion denying the government’s petition without prejudice. The opinion is joined by Judges Marsha Berzon and Michelle Friedland. Judge Alex Kozinski was on the panel when oral argument occurred, but he was replaced by Judge Friedland following his retirement.
Judge Thomas’s opinion is structured around the Bauman factors—which have long guided the Ninth Circuit when it comes to mandamus petitions. They are:
(1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court’s order raises new and important problems or issues of first impression.
Here are the opinion’s concluding paragraphs:
We are mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies the plaintiffs seek may not be available as redress. However, the district court needs to consider those issues further in the first instance. Claims and remedies often are vastly narrowed as litigation proceeds; we have no reason to assume this case will be any different. Nor would the defendants be precluded from reasserting a challenge to standing, particularly as to redressability, once the record is more fully developed, or from seeking mandamus in the future, if circumstances justify it. And the defendants retain the option of asking the district court to certify orders for interlocutory appeal of later rulings, pursuant to 28 U.S.C. § 1292(b).
Because petitioners have not satisfied the Bauman factors, we deny the petition without prejudice. Absent any discovery order, the mandamus petition is premature insofar as it is premised on a fear of burdensome discovery. The issues pertaining to the merits of this case can be resolved by the district court, in a future appeal, or, if extraordinary circumstances later present themselves, by mandamus relief. For these reasons, we decline to exercise our discretion to grant mandamus relief at this stage of the litigation.
Monday, February 26, 2018
A couple of decisions from the federal circuits in recent weeks:
In Hagy v. Demers & Adams, the Sixth Circuit addressed Article III standing and the Supreme Court’s 2016 decision in Spokeo. Judge Sutton’s opinion dismisses a case brought under the Fair Debt Collection Practices Act (FDCPA) “[b]ecause the complaint failed to identify a cognizable injury traceable to [the defendant] and because Congress cannot override this baseline requirement of Article III of the U.S. Constitution by labeling the violation of any requirement of a statute a cognizable injury.” (H/T: Howard Bashman)
In Simpson v. Trump University, the Ninth Circuit affirmed the district court’s approval of a class action settlement involving seminars offered by Trump University. Here’s the introduction from Judge Nguyen’s opinion:
Trump University, now defunct, was a for-profit entity that purported to teach Donald J. Trump's “secrets of success” in the real estate industry. During the 2016 presidential election, Trump University and Trump were defendants in three lawsuits alleging fraud and violations of various state and federal laws: two class actions in the Southern District of California, and a suit by the New York Attorney General in state court. Each suit alleged that Trump University used false advertising to lure prospective students to free investor workshops at which they were sold expensive three-day educational seminars. At these seminars, instead of receiving the promised training, attendees were aggressively encouraged to invest tens of thousands of dollars more in a so-called mentorship program that included resources, real estate guidance, and a host of other benefits, none of which ever materialized.
In the California cases, the district court certified two classes of over eight thousand disappointed “students,” and scheduled the cases for trial in late November 2016. On November 8, 2016, Trump was elected President of the United States. Within weeks, the parties reached a global settlement on terms highly favorable to class members. Plaintiffs would receive between 80 to 90 percent of what they paid for Trump University programs, totaling $21 million. The defendants agreed to pay an additional $4 million in the case brought by the Attorney General of New York.
This appeal involves a lone objector, Sherri Simpson, who seeks to opt out of the class and bring her claims in a separate lawsuit, which would derail the settlement. Simpson does not dispute that she received, at the class certification stage, a court-approved notice of her right to exclude herself from the class and chose not to do so by the deadline. She argues, however, that the class notice promised her a second opportunity to opt out at the settlement stage, or alternatively, that due process requires this second chance. Neither argument is correct. We affirm.
(H/T: Adam Zimmerman) (Full disclosure: I joined an amicus brief on behalf of civil procedure professors in support of the objector in this case.)
Sunday, December 24, 2017
Three interesting decisions during the last few days:
- On Thursday, the U.S. District Court for the Southern District of New York granted President Trump’s motion to dismiss in CREW v. Trump, a case alleging that Trump’s business interests violate the Domestic and Foreign Emoluments Clauses of the United States Constitution. Judge George B. Daniels grants Trump’s Rule 12(b)(1) motion to dismiss, finding that the plaintiffs lack Article III standing. The court also finds that the case presents a non-justiciable political question and that the plaintiffs’ Foreign Emoluments Clause claims are not ripe for adjudication. The courts states, however, that it “does not reach the issue of whether Plaintiffs’ allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6)” or “whether the payments at issue would constitute an emolument prohibited by either Clause.”
- On Friday, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Hawaii v. Trump, affirming the district court’s order enjoining portions of President Trump’s Proclamation 9645 (also known as Travel Ban 3.0). The per curiam opinion—by Judges Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez—concludes that the Proclamation exceeds the President’s statutory authority under the Immigration and Nationality Act.The court does not address whether the Proclamation also violates the Establishment Clause. The court does, however, limit the scope of the district court’s preliminary injunction to “foreign nationals who have a bona fide relationship with a person or entity in the United States.”
- And on Saturday, the U.S. District Court for the District of Columbia issued an order in ACLUF v. Mattis, denying the Defense Department’s motion to dismiss a petition for a writ of habeas corpus filed on behalf of an American citizen being detained by U.S. forces in Iraq. Judge Tanya S. Chutkan concludes that the American Civil Liberties Union Foundation (ACLUF) has standing under Article III as the detainee’s “next friend.” The court also orders the Defense Department to allow ACLUF “immediate and unmonitored access to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf,” and “to refrain from transferring the detainee until the ACLUF informs the court of the detainee’s wishes.”
Tuesday, December 12, 2017
Yesterday the U.S. Court of Appeals for the Ninth Circuit heard oral argument in United States v. United States District Court for the District of Oregon. The Ninth Circuit is considering the federal government’s petition for a writ of mandamus challenging the district court’s order in Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). The district court had denied the government’s motion to dismiss a lawsuit that the court summarized as follows:
Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide (“CO2”) produced by burning fossil fuels was destabilizing the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” First. Am. Compl. ¶ 1. Despite that knowledge, plaintiffs assert defendants, “[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, ... permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history[.]” Id. ¶ 5. Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change. Id. ¶ 7. Plaintiffs argue defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.
217 F. Supp. 3d at 1233.
Thursday, October 26, 2017
Now up on the Vanderbilt Law Review’s website is my essay, Lost in Transplantation The Supreme Court’s Post-Prudence Jurisprudence, 70 Vand. L. Rev. En Banc 289 (2017). It’s a response to Fred Smith’s article, Undemocratic Restraint, 70 Vand. L. Rev. 845 (2017).
Friday, September 29, 2017
Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Adversity and Non-Contentiousness. Kevin reviews two recent pieces by Jim Pfander and Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067 (2017), and Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346 (2015), as well as Ann Woolhandler’s response to their arguments in Adverse Interests and Article III, 111 Nw. U. L. Rev. 1025 (2017).
Tuesday, June 6, 2017
Yesterday the Supreme Court issued a unanimous decision in Town of Chester v. Laroe Estates, Inc., covered earlier here and here. Justice Alito’s opinion for the Court decides the case on very narrow grounds—here’s how it begins:
Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Procedure 24(a)(2)? The parties do not dispute—and we hold—that such an intervenor must meet the requirements of Article III if the intervenor wishes to pursue relief not requested by a plaintiff. In the present case, it is unclear whether the intervenor seeks different relief, and the Court of Appeals did not resolve this threshold issue. Accordingly, we vacate the judgment and remand for that court to determine whether the intervenor seeks such additional relief.
Monday, April 17, 2017
Today’s oral arguments at the Supreme Court featured lots of civil procedure and federal courts issues. Transcripts below:
- Perry v. Merit Systems Protection Board (earlier coverage here)
- Town of Chester v. Laroe Estates (earlier coverage here)
- California Public Employees Retirement System v. ANZ Securities (earlier coverage here)
Thursday, April 13, 2017
Michael Morley has posted on SSRN a draft of his essay, Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question. Here’s the abstract:
In Spokeo, Inc. v. Robins, the Supreme Court held that, to have a justiciable claim in federal court under a federal statute, a plaintiff must show that it suffered a “particularized” and “concrete” injury. Even when Congress creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over its claim.
Spokeo requires us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, simply by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government.