In its ruling today in TransUnion v. Ramirez, the Supreme Court divided 5 to 4—in an unusual alignment—on the question whether a plaintiff must demonstrate a “concrete harm” in order to satisfy the “injury in fact” requirement for Article III standing in federal court. In his majority opinion, Justice Kavanaugh (joined by the Chief Justice and Justices Alito, Gorsuch, and Barrett) answered that question yes. In dissent, Justice Thomas (joined by the three liberal justices) said no.
The case arose when Sergio L. Ramirez tried to buy a car from a Nissan dealership way back in 2011, only to have the dealership’s credit check with TransUnion yield an alert that Ramirez’s name matched a name on the Treasury Department’s list of specially designated individuals who threaten America’s national security. Ramirez filed a class action on behalf of 8,185 individuals for violations of the Fair Credit Reporting Act. But TransUnion provided misleading credit reports to third parties for only 1,853 of the class members. The district court ruled that all the class members had Article III standing, and the jury awarded the class more than $60 million in damages. A divided panel of the Ninth Circuit affirmed the district court’s ruling on Article III standing (but reduced the damages award to around $40 million).
The essence of Kavanaugh’s ruling—set forth at both the beginning and end of his opinion—is “No concrete harm, no standing.” Drawing on Justice Alito’s majority opinion in 2016 in Spokeo v. Robins (which also involved the Fair Credit Reporting Act), Kavanaugh explains that the concrete-harm inquiry “asks whether plaintiffs have identified a close historical or common-law analogue for their asserted injury.” “[T]raditional tangible harms, such as physical and monetary harms,” clearly qualify. “Various intangible harms,” such as “reputational harms, disclosure of private information, and intrusion upon seclusion,” can also be concrete.
Congress, Kavanaugh explains (quoting Spokeo), may “elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” But (again quoting Spokeo) a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Federal courts must still “independently decide whether a plaintiff has suffered a concrete harm under Article III.” In short, “under Article III, an injury in law is not [itself] an injury in fact.”
Kavanaugh determines that those class members who had misleading alerts in their credit files but whose alerts were not disseminated to third parties did not suffer a concrete harm.
In his dissent, Justice Thomas builds on his concurring opinion in Spokeo. His basic argument (at the risk of oversimplifying) is that the Article III inquiry differs depending on whether a plaintiff is asserting his own rights or a “public right,” i.e., “a duty owed broadly to the community.” The “violation of an individual right gives rise to an actionable harm,” Thomas argues, and that includes the violation of an individual right created by Congress. Only where a plaintiff is asserting a public right must he also show, for purposes of Article III standing, that he has suffered a concrete harm. Because each class member established a violation of his legal rights under the Fair Credit Reporting Act, each class member had Article III standing.
Kavanaugh and Thomas exchange charges. Kavanaugh objects that Thomas’s “theory would largely outsource Article III to Congress”: “so long as Congress frames a defendant’s obligation to comply with regulatory law as an obligation owed to individuals, any suit to vindicate that obligation suddenly suffices for Article III.” As I understand his opinion, Thomas does not dispute that this is what his approach entails. He instead counters that “[i]n the name of protecting the separation of powers, the Court has relieved the legislature of its power to create and define rights.”
Two additional observations:
Although joining Thomas’s dissent in full, the three liberal justices, in a separate dissent written by Justice Kagan, state that they “differ with Justice Thomas on one matter”—a rather large matter, so it seems to me, in concept, but one, they say, that is “unlikely to make much difference in practice.” Specifically, they don’t accept Thomas’s core theory that any violation of an individual right created by Congress gives rise to Article III standing. They would instead defer to Congress’s identifications of tangible and intangible harms. “Overriding an authorization to sue is appropriate when but only when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue.” (I gather that this point explains how Breyer and Kagan could join Alito’s majority opinion in Spokeo but dissent here.)
In an interesting footnote, Thomas observes that the Court’s ruling “might actually be a pyrrhic victory for TransUnion,” as plaintiffs will be able to pursue their Fair Credit Reporting Act claims in state courts (where Article III limits do not apply).