Bench Memos

Oral Argument in Spokeo, Inc. v. Robins: Can Congress Simply Create Standing?

Does the Constitution allow Congress to create a right to sue simply by defining a cause of action? That’s the core issue before the Supreme Court in Spokeo, Inc. v. Robins, which was argued on Monday morning. You can find the transcript of the oral argument here.

Petitioner/Defendant Spokeo, Inc. is a “people search engine” that sells information about individuals. Like other companies in the same line of work, Spokeo obtains information from a variety of sources, including public records, into its own databases and sells a compilation of that information as a finished product. Respondent/Plaintiff Robins alleges that Spokeo has compiled an erroneous report about him, although he stops short of alleging that potential employers have actually used the erroneous Spokeo report against him.

The district court held that the plaintiff didn’t have standing because he had not alleged a “concrete” harm, but the Ninth Circuit reversed. In an opinion by Judge O’Scannlain, the Ninth Circuit held that the allegations made it plausible that the defendant had acted with reckless disregard for the statutory duty to collect accurate information, thus creating standing to sue under the Fair Credit Reporting Act (FCRA).

What is standing? The “judicial power” set out in Article III, Section 2 of the Constitution extends only to “cases” and “controversies.” In addition to prohibiting the Supreme Court from giving advisory opinions on the legality of future legislative or executive action, the “case or controversy” requirement ensures that litigants have a personal stake in the outcome of any suit filed in court, instead of just a general objection to government action. Courts have referred to this latter requirement as the constitutional doctrine of “standing.”

Modern standing doctrine was summarized famously by Justice Scalia in Lujan v. Defenders of Wildlife (1992), which also featured a separate concurrence by Justice Kennedy. A litigant must be able to show an “injury in fact,” which Lujan describes as a “concrete and particularized” injury that is “actual or imminent.” The injury cannot be a “conjectural or hypothetical” invasion of a legally-protected interest. The litigant must also be able to show a causal connection between the injury and the challenged conduct. Importantly, footnote 8 of Lujan qualifies the holding: “We do not hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.”

It’s undisputed in this case that Respondent didn’t identify or allege any actual harm from false statements. All he alleged was that Spokeo had failed to follow adequate procedures for ensuring the accuracy of data about him. That is enough for the statutory right of action under FCRA, but is it sufficiently “concrete and particularized” to pass constitutional muster? (The facts of this case would make an excellent hypothetical question for Civil Procedure class.)

The oral argument was only moderately revealing. Chief Justice Roberts was fairly quiet, but as a former Deputy SG himself, he clearly wasn’t impressed with the SG’s handling of its responsibility to look out for future occupants of the Executive Branch:

CHIEF JUSTICE ROBERTS: I mean, you know the –­­ you know the objection behind –­­ behind my hypothetical. . . . Which is Congress can say, basically, to a group of citizens, you get to enforce one of our laws because we’re giving you a cause of action. It doesn’t matter whether you’ve actually been injured or not; we just have to particularize it to some extent.

And I would have thought that the –­­ the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive’s prerogatives.

In other words: The Chief thinks the SG’s office is ignoring the President’s institutional interests. Ouch.

Among the Court’s liberals, it’s a safe bet that Justices Sotomayor and Kagan would find standing. Justice Kagan pressed Petitioner’s counsel for more than four pages right at the beginning of the argument, and Justice Sotomayor repeatedly interrupted Petitioner’s counsel during rebuttal to explain her view of the case. At one point, Justices Scalia and Kagan actually argued directly with each other about the statutory violation and the alleged injury:

JUSTICE KAGAN: Well, was this –

JUSTICE SCALIA: By the particular violation? Injured in fact by the particular –


JUSTICE SCALIA: Not by failure to have an 800 number, you’re saying?

JUSTICE KAGAN: No. But would this man be able? I mean, this is very much in line with the Chief Justice’s [hypothetical]. Would he be able to sue based on the fact that there was inaccurate information about him?

Justice Ginsburg, for her part, didn’t let much slip, although Justice Breyer indicated some sympathy for the pro-standing view.

Justice Kennedy seemed unconvinced by the arguments for standing, repeatedly returning to his concurrence in Lujan, which had emphasized that an injury in fact had to be “concrete.” Justice Alito was skeptical that an injury had actually been pled, which allowed Respondent’s counsel to make an interesting point that went largely unrebutted:

JUSTICE ALITO: In relation to that, can I just ask you something about that, that goes to how Spokeo operates: Is there anything here to indicate that anybody other than Mr. Robins ever did a search for him?


MR. CONSOVOY: Not in the record that I’m aware of.

JUSTICE ALITO: Then how could ­­– then isn’t that quintessential speculative harm?

In my understanding ­­– you ­­– correct me if I’m wrong –­­ you don’t have files someplace for every person in the United States or –­­ you have databases, and you will do a search if somebody asks you to do a search.

I assume you wouldn’t say that somebody as to whom there never had been a search would have standing, right? Even if ­­– you know, even if it would be the case that if there was a search it would come up with a lot of false information.

MR. CONSOVOY: So for it to be a consumer report, there must be communication to a third party. So we have alleged communication to third parties. At the pleadings stage, that must be accepted as true at this point.

But Spokeo, I believe, on their website, does not share that information who searched for you. And this ­­– this is really important. It is almost impossible to know.

Justice Scalia held his cards fairly close to the chest, but he did take issue with one of Respondent’s comparisons of this issue to the common law of defamation. As it turns out, the comparison was good enough for government work:

MR. CONSOVOY: Right. No. Well, but the statute follows from defamation. Just as in Stevens, it was about the statute, it wasn’t about the particular individual. They said the qui tam statute followed from the common law there, just like this statute follows from the common law defamation. And remember ­­–

JUSTICE SCALIA: Excuse me. How does it follow from the common law of defamation? I mean, you ­­– you could not bring a defamation action because somebody said something false about you. It was either in one of those areas where it is presumed to be damaging, you know, such as it’s, you know, about your moral life or something like that, or ­­– or your incompetence in your profession, or else you had to show positive damage.

How can you say ­­–


JUSTICE SCALIA: ­­– that it’s from common law.

MR. CONSOVOY: –­­ in Steel Co., Your Honor, the Court said it must be in the tradition of the common law of the sort, not precisely replicated.

JUSTICE SCALIA: Oh, I see. Okay.

MR. CONSOVOY: Not precisely replicated.

JUSTICE SCALIA: Close enough. Okay.

All in all, I suspect this vote in this case will be close. The absence of the Court’s familiar ideological divisions during the argument doesn’t necessarily mean that the divisions aren’t there. Environmental groups that litigate against the EPA have repeatedly found themselves limited by standing doctrine, and would stand to gain the most from a liberalization of standing requirements. The ferocity with which Justices Sotomayor and Kagan attacked the Petitioner’s position may indicates that they think they are close to achieving a majority in favor of more liberal rules.

On a final note, I am a bit disappointed that Respondent’s originalist argument didn’t make an appearance during Monday’s argument. Respondent’s brief had asserted that “Since the fourteenth century, the law has allowed litigants to bring actions asserting the invasion of legal rights of all sorts without having to demonstrate consequential harm,” as measured by the widespread availability of nominal damages for de minimis violations of common law rights at the time of the Founding. It would have been interesting to hear whether the justices considered this argument persuasive in light of the common law’s deeply-embedded distinction between acts that are malum in se (wrong in themselves) or malum prohibitum (wrong because they are illegal). Perhaps we’ll find out when the Court releases its decision.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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