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Sunday, May 17, 2015

Talking about Standing in Zivotofsky and Robins

Last week, Will Baude published a New York Times column arguing that the Supreme Court should postpone its decision in Zivotofsky v. Kerry, a pending separation-of-powers case, until it hears Spokeo v. Robins, a standing case slated to be heard next term. These two cases seem to be about quite different things, but Will points out that the lower courts in Zivotofsky found standing based on substantially the same broad theory to be reviewed in Robins. 

Will's column has prompted a lot of fun standing conversations, and one of them recently occurred on twitter among Chris Walker, Steve Sachs, and myself. Will has kindly collected these tweets and translated them into (somewhat) more readable prose. Now, with the consent of all involved, I've posted the exchange below. Additional comments welcome!

Some very brief background: In Zivotofsky the plaintiff argues that he has a statutory right to a US passport that indicates his place of birth as being Israel, and not just "Jerusalem." And, in Robins, the plaintiff argues that he has a statutory right to relief for Spokeo's false but perhaps harmless dissemination of information about, among other things, his employment record.

Here's the conversation:

Steve: This may be an old example, but: say a statute gives a choice of passport color, blue or red.  If the government unlawfully issues blue, why isn't "but I liked red better" enough for standing?  Does the alternative passport have to be piercing orange, or sing annoyingly when opened, or weigh 40 pounds?

Of old, mandamus would lie to get you a record for which you paid ten cents (1 Cranch 137); why not here?  Seems like "I want my name spelled correctly," or "I want my education reflected correctly," is on par.

"De minimis non curat lex" is proven false when a statute gives you the choice.  In any case, this feels like a category error: Congress can create monetary obligations, and you really do want the money.

Richard:  Steve, does "injury in fact" do any work in your reasoning?

Steve:  They're not giving me the red one I wanted! :)  This is about me and mine, not generalized grievance.

Chris, agreeing:  Yes, this gets back to my original Summers aesthetic point (spelled "esthetic" in the opinion).  [If mere esthetic interests are sufficient (see Summers), why not interest in one's country listed on passport?] Robbins in Spokeo could make a similar "false information" claim for injury purposes, but really doesn't.  And the Spokeo plaintiffs really want statutory standing because it eliminates some problems for class certification.

Richard:  I understand Chris's aesthetic point to be a claim about injury in fact.  Steve, by contrast, seems to be saying that a personal legal right avoids generalized grievance and for Steve that alone -- the absence of generalization -- seems sufficient for standing.  That view is a fine one under first principles, but seems in tension with recent case law.

Steve:  The case here is complicated by (1) damages awards and (2) unusual strategy so as to satisfy 23(b).  But even in an individualized action for injunctive relief, it would be plausible to allege individual injury, because the depth of plaintiff's preference is a different question than legally cognizable interest.  If the legislature calls a certain smell a nuisance, can the Court decide that it's pleasant/inoffensive?  Petitioner's real issue may be the creation of a right to accurate representations by third parties, not standing.

Richard:  Well, let me get in character here, since I am hardly a doctrinalist on this.  You note "legally cognizable interests," but I think that term can mean different things.  We might distinguish between personal legal rights, desires, and factual injuries.  I would be very grateful, Steve, to hear more about how you would measure "depth of preference."  

But I do think a strong believer in the injury-in-fact rule would have to be open to saying a legal right against a nuisance is insufficient.  Sure, defer to the legislature on the smell, but if the smell is the plaintiff's perfume, there may be no injury -- or even a strong preference.  There is only a right.

Chris:  Under current precedent, Congress can NOT redefine a noninjury by creating a right with damages.  Or better said, that's my best reading of AMK's Lujan concurrence -- this is the question in Spokeo.

Steve: One problem is that the "power to define injuries" means something different with equitable vs. monetary relief.  All an injunction *gives* you is vindication of a "nonconcrete interest in the proper administration of the laws."  On the other hand, everybody needs money.  That's why they call it money!  When you want money the other party won't give, you've got an actual stake in the outcome, etc.

Chris:  Well, that's the QP in Spokeo -- whether Congress can create statutory standing by imposing a monetary penalty regardless of whether the violation actually injured the plaintiff (aside from the monetary penalty).  It's the same issue the Court DIG'd in First American Financial a few years back.

Steve:  Indeed, but I'm not sure it's settled by the Lujan majority or concurrence.  And "create statutory standing" loads the dice, as Congress is really creating monetary damages for conduct with unclear harm, for which money plaintiffs might then sue.

Chris:  It's settled for four Justices; AMK, not so sure -- see the concurrences in Summers and Lujan.

Steve (turning back to Richard):  Article III might not address preference depth (yes, first principles may not be equal to doctrine).  But it's hard for courts to separate "I don't like banned perfume near me" from "tear down that spite fence," etc.  These look like equity doctrines about the grounds for injunctions, gussied up in Article III garb.  

Richard:  Steve, between the depth-of-interest reasoning and equity's role, I can tell we agree on a lot.  But a lot of what you say, you acknowledge, is in tension with or open under the case law.  So to return to your passport-color hypo from the start, is it wrong for Will to suggest that the Zivotofsky question is unsettled and overlapping with Spokeo, under current law?  

Chris: I'm more certain now that there isn't an overlap.  Standing is not an issue in Zivotofsky. 

Steve:  My guess is that Chris is right about Summers and aesthetics.  The unsettled doctrinal question, to my mind, is what we'd do with weird 23(b)-influenced class claim for injunctions.

Richard: Ok, well I will have to leave it there.  Fun to chat!  Hope to continue sometime.

Chris:  Same.  Graduation starts in 10 minutes.  Let's definitely do this again.

Posted by Richard M. Re on May 17, 2015 at 08:34 AM | Permalink


Thanks again, Marty. I'm happy for you to have the last word on the substance, and I'll look forward to other comment-thread chats soon!

Posted by: Richard | May 20, 2015 2:43:36 PM

Richard and Will: Sorry that I've been out of pocket. Let me start with Richard's questions:

1. Just to be clear: I am not advocating a DIG (or opposing it). What I've written is not all that different from what the SG said in its CVSG brief, and there were at least four Justices who were not persuaded by the SG. Unless the other five opposed cert., I doubt my points will move the Court to DIG. I'm only pointing out that Spokeo is a very messy vehicle for exploring the QP--one that might frustrate the Court when it comes time for argument and opinion-writing--and that, ironically enough, the issue is much "cleaner" in Zivotofsky.

2. Yes, I am suggesting that an express or implicit standing ruling in Zivotofsky is more likely to help decide the question in Spokeo, rather than vice versa.

3. I acknowledge that there are some recent cases in which the Court has taken a case principally to review and in effect reverse an opinion of a lower court, rather than a judgment, and to then remand the case for consideration of alternative theories. That's in at least some tension with the Article III notions that the Court reviews judgments, not opinions, and that the Court is not supposed to simply decide abstract legal questions, without regard to any applications of law to actual facts; but yes, of course the modern Court does it, and might well do the same here, and simply disregard the question of whether the injuries alleged in Spokeo might conceivably fall on the "no injury in fact" side of the line.

Now, in response to Will:

1. Yes, of course if the Court is inclined to say that the rule announced by the CTA9 is *correct*--or, even more, that the requirement of "concrete" injury is improper, and Lujan, et al. should be overruled (at least where Congress has created a right), then yes, Spokeo is as good a case as any! The entire premise of my comments here, however, was my assumption that there are not five votes for that on the present Court.

2. Not that it matters much, but this is one issue on which I'm in general agreement with you on the merits!

3. One quibble: Summers isn't very analogous to either Spokeo or Zivotofsky, because in these cases (as in First American), Congress has established an "individualized" right, and the question is whether and under what circumstances such individualization is sufficient to establish injury-in-fact when a defendant violates the statutory obligation.

Posted by: Marty Lederman | May 20, 2015 7:43:05 AM

Marty writes, "In other words, it seems to me that the traditional normative reasons for "case or controversy" limitations..."

Conceptually there is a significant difference between an argument that there is no case or controversy and the argument that any violation is de minimis. One involves a judgement about the presence or absence of an injury and the other is a matter of degree. The normative reasons that apply to no case or controversy--the ones Marty identified--are not the same normative reasons that apply to de minimis violations. Given the different normative rationales I'm not persuaded that they all point in one direction. I do agree with Marty that as an abstract matter Zivotofsky is a cleaner case--but whether the court really wants to wade into this issue abstractly is a good question. We shall see what they make of it.

Posted by: Daniel | May 19, 2015 3:22:32 PM


Thanks again for this. It seems that you haven't tired of the exchange, at least not yet. Let me ask a couple possibly final questions in the hope that we have converged to a point of agreement or at least detente.

1. Do you now think, in light of the OSG passage that you helpfully quote, that the Ninth Circuit and parties below were all correct to treat dissemination as a statutory violation? If so, then it would seem that many of your earlier reasons for DIG'ing Spokeo would no longer apply. Is that right?

2. You say that "the traditional normative reasons for 'case or controversy' limitations ... all point in the direction, if anything, of 'holding' Spokeo in light of Zivotofsky, and not vice versa." But, isn't that just saying that the Court should keep doing what it's doing--namely, deciding Zivotofsky this term and Spokeo next term? True, that is contrary to Will's position, but it seems you no longer advocate a DIG--which is my main interest here.

3. Finally, I am still trying to understand your suggestion that rejecting the broad rule adopted below and then remanding for consideration of alternative theories would itself contravene Article III. You suggest that, to do this, the Court would need some example of an "individualized" statutory right that doesn't confer standing. But in addition to the possibilities that Will offers, couldn't the Court just adduce hypotheticals for this purpose, if need be?

Posted by: Richard | May 19, 2015 11:58:21 AM

Marty, I'm actually not so convinced that the injuries in your hypothetical are "concrete" or "in fact" -- or at least no more so than the procedural injury in Summers. And yet I don't really doubt that Congress can authorize relief in those cases. That's because I am inclined to think that the statutory right is what is dispositive, not any judgment that the underlying injuries are "concrete" or "in fact."

My tentative view, of course, is at odds with some of the Court's recent cases; but I am skeptical that the Court's recent cases are capable of principled application and coherent definition. So I don't think it's helpful or productive to ask whether any of these injuries are concrete, and I don't see how one can have such confidence that these injuries satisfy the Court's tests.

I think that explains our very different attitudes toward the categorical QP in Spokeo. I would be inclined to answer that QP "yes." And I think that asking whether the underlying injuries are "concrete"-and-"in-fact"-ness in some pre-statutory sense is difficult at best and incoherent at worst. Answering the QP "yes" eliminates the need to ask any of those questions (though it might require overruling Lujan and Summers).

I gather that you are not so sure that the answer to the broad QP is "yes," or are unwilling to advocate overruling some of the recent precedents. (Correct me if I'm wrong.) Because of that, it's important that you find underlying reasons that the QP is ill-posed, or reasons that the injuries here can be sustained notwithstanding a possible negative answer to the QP. (Again, please correct me if I'm wrong.)

Posted by: William Baude | May 19, 2015 11:02:50 AM

There's another reason, too, Will, why it might not useful, or wise, for the Court to address your identified FCRA claims without regard to any the fact of publication of inaccurate info--namely, that those claims would probably be *sufficient* to establish injury-in-fact.

Let's hypothesize, for example, that Spokeo has never -- yet -- published a false fact about Robins. But it does continue to collect information about Robins, and to update its reports on him accordingly. And Robins comes to learn that, in preparing its reports, Spokeo fails to "follow reasonable procedures to assure maximum possible accuracy of the information concerning [Robins]," and also fails to give its information-providers and its customers the statutorily required notices. So Robins sues for an injunction requiring Spokeo to adhere to those statutory requirements.

Of course, Congress enacted those requirements as prophylactics, to diminish the risk that consumer reporting agencies *will* publish inaccurate information about consumers. And Robins has sued, in my hypothetical, precisely in order to help ensure that that never happens to him (since once the false information is out there, it can be impossible to put the toothpaste back in the tube).

Do you agree that, in that case, there would be a concrete injury-in-fact sufficient for Article III? If not, why not? If so, how would even this hypothetical case--again, not the one before the Court--help the Court articulate where the line should be drawn, i.e., to identify the sorts of violations of individual-specific statutory obligations that would *not* be sufficient to establish injury-in-fact?

Posted by: Marty Lederman | May 19, 2015 10:04:44 AM

Will: The toll-free-number posting violation almost surely does not support a claim, since it's not a “requirement
imposed under [FCRA] *with respect to a[] consumer.*” See OSG Br. note 3. That leaves the allegations that Spokeo did not give proper notice of statutory requirements to (i) those who provided it with information about Robins and (ii) those to whom it issued reports about Robins. Robins alleges that those notice-related failures, too, caused the publication of inaccurate information -- not that they establish injury-in-fact in and of themselves. He'd probably fail to show the requisite causation as to those violations -- the cause and effect relationship between the failure to give notice and the inaccuracy of the publication; but the case does not raise the question whether he could prevail without such proof, i.e., whether the failure to give notice *itself* injured Robins in a sufficiently "concrete" way.

Posted by: Marty Lederman | May 19, 2015 9:01:56 AM

Sorry, I overlooked this passage from the OSG brief:

FCRA requires each CRA to “follow reasonable
procedures to assure maximum possible accuracy
of the information concerning [an] individual” when it
“prepares a consumer report” about him. 15 U.S.C.
1681e(b). Under the statutory definition, moreover,
information contained within a CRA’s private files
cannot constitute a “consumer report.” Rather, a
“consumer report” is a CRA’s actual “communication”
of information that relates to a consumer and is either
used or expected to be used or collected for specified
purposes. 15 U.S.C. 1681a(d)(1); see 15 U.S.C.
1681b(a) (setting forth an exclusive list of the circumstances
in which a CRA may disseminate a consumer
report). FCRA thus grants an individual consumer a
statutory entitlement to be free from a CRA’s *actual
dissemination* of inaccurate information about him
when the CRA fails to employ “reasonable procedures”
to assure the information’s accuracy. . . . [Violation of this provision] is also a concrete
and particularized injury to the consumer because it
involves the actual, specific, and non-abstract act of
*disseminating* information about the particular consumer.

If this is a correct reading of the FCRA, then the statute does, indeed, prohibit *dissemination of inaccurate information,* as such, if the statutory procedures have not been followed. And if so, then I would think Robins has standing, at a minimum, to bring *that* claim (which wouldn't require proof that the faulty preparation caused the inaccurate publication).

Posted by: Marty Lederman | May 19, 2015 8:23:49 AM

If the Court decided that it needed to consider the broad QP in a specific context outside of the preparation/publication context, could it consider the other FCRA violations that were mentioned only in passing by the Ninth Circuit's opinion? -- Viz., the lack of a toll-free number, the dissemination of reports for improper purposes, etc.? I know those weren't the focus of the Ninth Circuit's opinion, but is there any reason that they wouldn't be equally before the Court, equally encompassed by the QP, and provide occasion for further guidance on the role of statutory standing?

Posted by: Will Baude | May 19, 2015 8:23:18 AM

Richard: Neither the CTA9 nor Robins nor OSG argues that "the violation of any statutory right creates standing." They argue, *at most,* that the violation of an "individualized" statutory right, i.e., a right to have Party X (usually the government; here, Spokeo) not specifically act *vis-a-vis the plaintiff* in a certain way, is constitutionally sufficient.

Your suggestion, as I understand it, is that the Court should simply -- "all in a good day's work" -- hold that, whatever else may be true, such a categorical rule of decision is mistaken( i.e., that it is too categorical). In order to issue such a holding, however, I assume the Court would have to explain why some such statutory violations establish standing and others do not. That is to say, the Court presumably would have to identify some "individualized" statutory rights that do *not* establish standing. How should it do that? Scour through the U.S. Code looking for examples, which the Court would then analyze outside the context of any concrete, adversarial dispute? Posit a "pure" violation of the preparation norms in the FCRA--without publication--even though this lawsuit doesn't raise that question? What if it turns out that five Justices think "improper preparation, simplicitur" *is* enough to establish injury in fact? Should the Court then proceed to look for some other statute that falls on the other side of the line, so that it can "correct" the too-categorical rationale of the CTA9? Describe a made-up statute that would, in the Justices' view, not pass constitutional muster (e.g., it is unlawful to write defamatory things about an individual in one's diary)?

In any event, to get back to Will's column, if the idea is that the Court should issue a decision in Spokeo such as you surmise--merely declaring that a certain rationale is not *categorically* correct--that's no reason to hold Zivotofsky, because such a ruling wouldn't resolve whether Zivotofsky has standing. Indeed, Zivotofsky is a much cleaner vehicle for addressing the issue (apart from the fact that both parties agree that the statutory injury there is sufficient to establish injury in fact!). The statute gives Zivotofsky the right to have the government say "X" about him on his passport, and he's suing because the government refused to do just that--or, more to the point, because the government has continued to print the word "Jerusalem" on his passport, standing alone. If the Court decides, expressly or implicitly, that such an action --publication of an *accurate* statement about the plaintiff, but not the statement the statute gives him the right to "carry" -- is enough for standing (as I think it should be, cf. Meese v. Keene) --then surely publication of *inaccurate* information about the plaintiff would be enough for injury-in-fact in Spokeo.

And then, if Robins continues to take the view that the *publication* is the locus of his injury-in-fact--i.e., he must prove that the statutory violations caused such an inaccurate publication--Zivotofsky will have resolved the Article III question in Spokeo. There would be no need for the Court in the latter case to opine on whether a "pure preparation violation" would be enough, since the case wouldn't raise that question . . . and no need, either, for the Court to opine on the abstract and hypothetical question whether and under what circumstances there might be other violations of "individualized" statutory rights--somewhere in the actual or imagined U.S. Code-- that are insufficient to establish injury-in-fact.

In other words, it seems to me that the traditional normative reasons for "case or controversy" limitations -- adversariness, avoiding abstract decision-making, respecting the prerogatives and presumed constitutional fidelity of the political branches, etc. -- all point in the direction, if anything, of "holding" Spokeo in light of Zivotofsky, and not vice versa. That is to say, if the Court reaches the merits in Zivotofsky, and thus expressly or implicitly finds standing in that case, that will make evaluation of the Article III question in Spokeo much cleaner; whereas, by contrast, resolution of Spokeo (e.g., along the lines you suggest) might well do nothing to inform us of whether Zivotofsky has standing.

Posted by: Marty Lederman | May 19, 2015 7:00:18 AM


One straightforward possibility would be to read the Ninth Circuit as saying that the violation of any statutory right creates standing. The Ninth Circuit opinion is so capacious that it might well be read that way--indeed, you seem to read it precisely that way in the first paragraph of your last comment--and that broad reading seems to have been the one advanced in the petition. I think it is quite plausible that the Court could adopt that reading, agree with the petitioner that CA9's broad ruling was wrong, and remand. All in a good day's work. I do not see why you think that such a conventional way of proceeding "would itself violate article III."

Alternatively, after rejecting the broad rule apparently adopted by the Ninth Circuit, the Court could decide to provide additional guidance by setting out a test for when statutory violations create standing and then applying that test to the alleged facts before it. If the Court decides to do that, it will presumably become important to know what the statutory violation is. That is where I agree that your analysis will be very, very helpful. If you're right that the violation is complete at preparation, that is obviously relevant to how the Court would apply its test.

You express concern that Robins won't argue in the alternative that preparation alone can create standing and will instead argue only that the combination of preparation and publication can create standing. I strongly suspect that Robins and/or some of his amici will argue that violations of statutory rights create standing in this case, for reasons that do not depend on whether the violation is preparation or publication (or both). But even if your prediction turns out to be correct, that would seem like just one more strategic decision that parties make when arguing before the Court. Robins has sophisticated counsel, and if they don't think that unlawful preparation alone is injurious, then the Court would presumably be happy to rule on whatever theory actually is advanced.

One last thought. Let's assume for a moment that the Court's real interest here isn't the broad QP (which the Court granted despite being invited to choose a different formulation), and that the Court is instead specifically interested in addressing when the *publication* of information creates standing. Even if that's right, the Court can still use this case to say quite a bit on that subject. For example, it could say that publication creates standing only if the publication is itself unlawful, or it could say that publication creates standing only if the publication is fairly traceable to a statutory violation. Regardless, it seems like the law can be made clearer here.

Posted by: Richard | May 19, 2015 1:08:24 AM

Richard: So how would that look? The CTA "rationale," such as it was, was that there is an injury in fact where Congress has created a substantive statutory right, and that right "protects against individual, rather than collective, harm.” Should the Court analyze the abstract question whether that ratio decidendi is *always* correct, regardless of the nature of the substantive conduct rule? Presumably not, because such an abstract analysis, untethered to any statute or any claim, would itself violate article III, especially if the plaintiffs do not defend such a categorical rule.

OK, so if the Court should address the legal question in the context of a particular statutory right, and particular plaintiff claims--as I think it should--which right, and which claims, should it consider?

Should it address whether a violation of the statute's prescribed *preparation* procedures, standing alone, would establish a sufficiently "concrete" injury? Presumably not, not only because Robins' theory of injury is broader than that (i.e., he argues that those violations caused the publication of inaccurate statements, which were the actions that caused injury), but also because it's doubtful the Court will have adversarial briefing on *that* question: Robins argued below that "had Robins never appeared on Spokeo’s website, and never had his information marketed and made available to third parties without the protections of the FCRA, he may well lack standing to pursue a claim against Defendant."

Alternatively, should the Court address the question the CTA9 thought was at issue, namely, whether *inaccurate publication* of facts about an individual is sufficient injury--even though the statute does not prohibit such publication?

Posted by: Marty Lederman | May 18, 2015 11:18:56 PM

Marty: But what the Court will be reviewing is the Ninth Circuit's decision, which you seem to agree does make the legal determination that is questioned in the QP and that the justices want to decide. I see that you think the briefing (at least in the court below) could have been better, but is that really a barrier to reaching the merits? Happily, I suspect that the merits briefing before the Court will be much clearer and more helpful to the Court thanks to your analysis.

Posted by: Richard | May 18, 2015 10:14:10 PM

Thanks, Richard. Well, the case is a mess conceptually. It is true that the CTA9 purported to find standing "based entirely on an injury inherent in the asserted illegality"--but it also assumed that the "illegality" was the publication of false statements, which *would* be sufficient for injury in fact. There's some of this confusion in the briefing below, too, which (like the CTA9 opinion) is shockingly inattentive to what the statute actually prohibits. Take, for instance, this passage from plaintiffs' reply brief on appeal, which (i) correctly acknowledges that a statutory violation, as such, is not necessarily enough for injury in fact--the plaintiff must also "experience" the violation, whatever that means (if a violation occurs in a forest and no one is around . . . . ); (ii) inaccurately claims that the "marketing and dissemination" of false info is prohibited by the statue; and (iii) says specifically that without dissemination there "may well" be no injury in fact:

"In the end, the fact that Congress can statutorily define injuries
does not, as Spokeo suggests, eliminate Article III altogether. Rather, a
plaintiff must himself experience the statutory violation. See Lujan, 504
U.S. at 578. Had Robins never appeared on Spokeo’s website, and never
had his information marketed and made available to third parties
without the protections of the FCRA, he may well lack standing to
pursue a claim against Defendant. But Robins does not allege generally
that Spokeo violates the FCRA; he alleges that Spokeo violated his
rights protected by the statute when it compiled, marketed, and
disseminated inaccurate information about him. (Dkt. 40 ¶¶ 54-55.) The
injury alleged by Robins is personal to him, and is sufficiently concrete
and particularized to satisfy Article III.

The Amended Complaint, on the other hand, (mostly) identifies the statutory violations more accurately, and then specifies that those violations were the cause of publication of inaccurate facts about the plaintiffs, which is the conduct that caused the injury--a theory that would, I assume, be sufficient to show injury in fact, but that might also require plaintiffs to demonstrate that the statutory violations caused the inaccurate publication.

Should the Court examine the case based on the messed-up briefing (including the mistaken assumption that the statute makes inaccurate dissemination unlawful)? Or start from the allegations of the complaint, which don't really raise the "pure legal" question that everyone thinks the case is about. I predict this is among those cases (see today's SF decision) in which the Justices will be really frustrated at argument that the case doesn't much resemble what they thought they accepted at the cert. stage. OSG tried to warn them, but they didn't heed the red flags.

Posted by: Marty Lederman | May 18, 2015 9:30:13 PM

Marty: Thanks for these illuminating comments. But I'm not sure I see why Robins is a bad vehicle that deserves a DIG. If I follow you, you are saying that the statutory violation isn't the publication but rather the preparation of the report. And you are further saying that Robins's alleged factual injury stems from the publication, not the preparation alone, which raises a causation problem. After all, merely preparing a report may not make it likely that the report will be published. However, the preparation of the report does seem logically antecedent to its publication. So, given what you've written, it seems like the Ninth Circuit (implicitly?) decided that the cleanest way to handle the case was to skip the messy causation issue and find standing based entirely on an injury inherent in the asserted illegality. And that is precisely the reasoning that raises the QP. I certainly take your helpful point that the Ninth Circuit could have explained this all more clearly, but why does that shortcoming stymie the Court's review?

Posted by: Richard | May 18, 2015 9:00:30 PM

As an objective matter there is no meaningful or principled distinction between "de minimis" and "injury in fact," at least that's how an old-fashioned legal realist would see it. These terms appeal to our intuitions and not reason. In my view the real concerns underlying "De minimis non curat lex" is not legal theory but the dignity and efficiency of the courts as administrative units--it looks silly for the courts to be wasting taxpayer dollars on whether a passport is red or blue.

In other words, the difference between Zivotofsky v. Kerry and Spokeo v. Robins doesn't lie in theory but in optics. One deals with high affairs of state and international relations--the type of thing it seems like the court system should care about whereas the other deals with minor mistakes on the internet. Spokeo reminds me of this cartoon:


Isn't that the real difference? Something wrong on a passport seems a much bigger deal than something wrong on the internet.

Posted by: Daniel | May 18, 2015 5:00:17 PM

Did a tiny bit of digging into the details of Spokeo.

The problem in Spokeo (perhaps a reason it should be DIGed) is that the Ninth Circuit didn't pay much attention to either the specific requirements of the statute or the ways in which noncompliance with such provisions is alleged to have injured the plaintiffs.

As the SG notes, the CTA9 did, indeed, purport to address the question “whether an individual has Article III standing to sue a website’s operator under the Fair Credit Reporting Act for *publishing* inaccurate personal information about himself.”

The answer to that question should be “yes.” And that answer does not change even if the question were amended to read “whether an individual has Article III standing to sue a website’s operator under the Fair Credit Reporting Act for publishing inaccurate personal information about himself *without having complied without having followed ‘reasonable procedures to assure maximum possible accuracy of the information concerning the individual,’* as required by 15 U.S.C. 1681e(b).” In either case, the publication of inaccurate info about the plaintiff must be proved, and is the injury-in-fact.

Here’s the rub, however: It appears that the FRCA does not prohibit inaccurate *publication,* as such--nor does it even prohibit publication without 1681e(b) compliance. Therefore, the Amended Complaint does *not* allege that the publication was unlawful.

What section 1681e(b) says is that “whenever a consumer reporting agency *prepares* a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” The statutory violation, that is to say, occurs at the time of preparation of the report, not its publication.

Therefore, insofar as Robins is suing based upon 1681e(b)—which he is, in Count One of the Amended Complaint—that claim might raise a serious “actual injury” question if the gravamen of Robins’s complaint were merely Spokeo’s failure to adhere to the prescribed procedures in preparing the reports, and nothing more. (The argument for Spokeo would be that negligent preparation of a report, simplicitur, does not cause injury in fact, even if it violates the statute. If a report is prepared but never published, you can’t complain.)

It appears, however, that Robins’s theory of the case is instead that the alleged 1681e(b) violations, which occurred at the time of *preparation* of the reports, caused the *publication* of inaccurate reports . . . which in turn injured the plaintiffs. Count One of the Amended Complaint, after describing the requirements of, inter alia, section 1681e(b), and Spokeo’s alleged failure to comply, states that “as a result” of those violations of the FCRA, plaintiffs have “suffered harm as described herein.” And virtually all of the harm described “herein” is a function of the defendants’ publication of inaccurate reports about the plaintiffs (see paras. 30-38).

Accordingly, the complaint might raise an Article III *causation* question (“would the inaccurate report have been published even if Spokeo had followed the procedures?”); but there shouldn’t be much doubt about the injury-in-fact. The allegation, as in Lujan and Akins and Mass v. EPA, is *not* that the statutory violation, standing alone, resulted in injury-in-fact, but instead that the statutory violation caused the defendant to engage in additional conduct (here, publication) that caused actual harm to the plaintiffs. The court of appeals appears to have bollixed this all up by simply assuming (wrongly) that the statute prohibited the *publication,* and by not even addressing what the statute actually prohibits and how violations of those provisions are alleged to have injured the plaintiffs.

Posted by: Marty Lederman | May 18, 2015 12:35:13 PM

You're right, Will, that Akins, FOIA and Lujan don't specifically answer the question of whether the harm in Spokeo is "concrete." But how would you distinguish them?

Not seeing the crocodile=concrete harm.

Not obtaining records from a government agency (records about the government but not about one's self)=concrete harm.

Not obtaining lists of AIPAC donors/members/contributions/expenditures=concrete harm.

If these are all correct, then on what theory would the public dissemination of inaccurate information about me, without having followed statutorily prescribed processes designed to avoid such inaccuracies, *not* be concrete harm? Or, more importantly, why wouldn't the government denying me the right to carry a passport saying that I was born in Israel cause me "concrete" harm?

What makes Spokeo more difficult than Zivotofsky, I suppose, is not so much "actual, concrete injury," which the plaintiffs have clearly alleged by virtue of the inaccurate publication, but instead (Lujan prong II) whether the *failure to use the statutorily prescribed procedures* was the cause of that harm. That is to say, if the harm would have been realized (they would have published the inaccurate info) even in the absence of a statutory violation, then there's no standing despite the concrete harm. Another way of putting that point, perhaps, is that the mere failure to follow the procedures, *standing alone,* arguably does not establish a concrete injury. I haven't looked closely at the statute, but I thought the cause of action required actual publication of inaccurate info. (Perhaps that's mistaken.)

Posted by: Marty Lederman | May 18, 2015 11:00:52 AM


That's fine, but that passage repeatedly distinguishes between whether the underlying harm is "abstract" or "concrete." And the QP in Spokeo is how to handle a plaintiff "who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court." Seems to me that Akins provides no answer to that question, because it says that an informational harm is concrete.

Now of course one could argue that Robins has in fact suffered a quite concrete and non-abstract injury, entirely apart from the statutory right. That seems quite plausible to me, but it's not the premise of the question presented and it might well result in another DIG if the Court goes down that road.

Or one could argue that the fact of its being made an individual entitlement by statute *makes* it concrete. That's what strikes me as the big question, but it's not answered by Akins. And it would seem to implicate the statutory procedural rights at issue in Summers and Lujan too, unless they are distinguished on some new basis.

Posted by: Will Baude | May 18, 2015 10:06:02 AM

Not sure quite what you mean by "the FOIA analogy for all it's worth," Will. Let's take the aspect of Akins that Scalia appeared to *accept*: that if Congress gives all persons a right to demand the government disclose to them Information X, then any one of those persons suffers injury in fact if the government refuses to disclose X to her.

That's individualized only in the sense that the information would be given to the particular plaintiff because she made the request--something that would be true for any and all other persons, too. So, on this view, the *most* Lujan would stand for is that, e.g., a plaintiff could not sue to require the government to fulfill a statutory duty to, e.g., *publish* the same info. But of course, the actual holding in Akins, and Scalia's assumption that Joyce Kelly would have had "can't see the croc" actual injury in Lujan itself if she had planned a trip to Egypt, and the holding in Mass v. EPA, all suggest that Congress could even confer standing for statutory violations that are not "individualized" in nature, as long as the plaintiff suffers some particularized injury, even if that injury is suffered by millions, and even if the injury is "merely" not being able to see government info, or a crocodile. Accordingly, even if the statutory obligation is for the government to publish something, a statutory cause of action should suffice for injury in fact. This would be consistent with Powell's view in Richardson, which Breyer invokes in Akins, that Congress's power to establish standing is almost unlimited, at least as long as the injury is not "of an abstract and indefinite nature–for example, harm to the 'common concern for obedience to law.'” That quotation is from this passage in Akins, which strikes me as not only correct, but consistent with (I believe) *all* of the case law:

The FEC’s strongest argument is its contention that this lawsuit involves only a “generalized grievance.” (Indeed, if Richardson is relevant at all, it is because of its broad discussion of this matter, see id., at 176—178, not its basic rationale.) The Solicitor General points out that respondents’ asserted harm (their failure to obtain information) is one which is “ ‘shared in substantially equal measure by all or a large class of citizens.’ ” Brief for Petitioner 28 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). This Court, he adds, has often said that “generalized grievance[s]” are not the kinds of harms that confer standing. Brief for Petitioner 28; see also Lujan, 504 U.S., at 573—574; Allen v. Wright, 468 U.S. 737, 755—756 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475—479 (1982); Richardson, supra, at 176—178; Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U.S. 447, 487 (1923); Ex parte Levitt, 302 U.S. 633, 634 (1937) (per curiam). Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance. Warth, supra, at 500; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974); Richardson, 418 U.S., at 179; id., at 188—189 (Powell,
J., concurring); see also Flast, supra, at 131 (Harlan, J., dissenting).

The kind of judicial language to which the FEC points, however, invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature–for example, harm to the “common concern for obedience to law.” L. Singer & Sons v. Union Pacific R. Co., 311 U.S. 295, 303 (1940); see also Allen, 468 U.S., at 754; Schlesinger, 418 U.S., at 217. Cf. Lujan, supra, at 572—578 (injury to interest in seeing that certain procedures are followed not normally sufficient by itself to confer standing); Frothingham, supra, at 488 (party may not merely assert that “he suffers in some indefinite way in common with people generally”); Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940) (plaintiffs lack standing because they have failed to show injury to “a particular right of their own, as distinguished from the public’s interest in the administration of the law”). The abstract nature of the harm–for example, injury to the interest in seeing that the law is obeyed–deprives the case of the concrete specificity that characterized those controversies which were “the traditional concern of the courts at Westminster,” Coleman, 307 U.S., at 460 (Frankfurter, J., dissenting); and which today prevents a plaintiff from obtaining what would, in effect, amount to an advisory opinion. Cf. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240—241 (1937).

Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found “injury in fact.” See Public Citizen, 491 U.S., at 449—450 (“[T]he fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure . . . does not lessen [their] asserted injury”). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an “injury in fact.” This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Cf. Lujan, supra, at 572; Shaw v. Hunt, 517 U.S. 899, 905 (1996). We conclude that similarly, the informational injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.

Posted by: Marty Lederman | May 18, 2015 9:11:55 AM


I agree with the majority of what you've written (and I'll note that Judge O'Scannlain's opinion in Spokeo looks like a shortened version of Judge Randolph's opinion in Zivotofsky).

But on your attempt to reconcile this view with post-Lujan precedent: Don't you acknowledge in your comment that the logical implication of reading the FOIA analogy for all it's worth is that Congress can give standing to sue for generalized grievances, which would mean overruling Lujan (and presumably Summers too)?

Posted by: Will Baude | May 18, 2015 8:30:56 AM

Richard, Will, Steve, Chris: As you may know, the Bush Administration made exactly Will's standing argument in the first round of the Zivotofsky litigation, ten years ago; the district court bought it, but the CTADC did not, in an opinion by Ray Randolph, no less. (Relevant excerpt below.) This Administration abandoned the standing argument as the case moved forward--consistent with its briefing in Spokeo.

If I'm understanding your discussion correctly, it sounds as if none of you actually thinks there's any justification for a "no standing" result--not textual, originalist, pre-Lujan precedent, normative, etc. If so, I agree. But even taking Lujan into account, isn't Randolph right? After all, what about the FOIA cases and Akins? Zivotofsky has (at least on his view) a statutory right to travel with a passport that reads "Birthplace: Israel" -- something the State Department has denied him. Whether that statutory right is framed as a right for Zivotofsky himself to "speak" on his passport (an implausible forum-like theory), or to have the government speak about him in a certain way, it remains an injury unique to him, not a generalized grievance. He might not, in other words, have standing to challenge State's disregard of the cognate provision of the statute requiring publication of any official governmental document that lists countries and their capital cities to identify Jerusalem as the capital of Israel. But this involves what appears on *his* passport--the sign around his neck, so to speak. If Joyce Kelly would have had actual injury in Lujan--as Scalia appeared to concede--merely on the basis of having concrete plans to travel to Egypt, where she'd have less chance of seeing the nile crocodile there, why isn't the failure of Zivotofsky to "see" "Israel" on his passport an actual injury? I concede that Spokeo could complicate this--I'm only asking why Akins and FOIA and the Randolph opinion don't clearly point the way to the correct answer in Zivotofsky and Spokeo, even assuming Lujan. (And this is all independent of whether Congress has authorized a monetary damages remedy. But see, of course, the qui tam case.)

Indeed, seems to me the more interesting question is whether Congress can confer standing to sue for "generalized grievances." That certainly was the predominant view pre-Lujan (see Powell's concurrence in Richardson). And it's more or less the upshot of the notion--*accepted* by Scalia in his Akins dissent--that a FOIA plaintiff has standing to sue to require the USG to disclose information required by FOIA, even if that info has nothing to do with the plaintiff herself.

From CTADC (Randolph, J.):

As to Menachem's standing to bring this action, the government argues that he cannot satisfy the injury-in-fact requirement derived from Article III of the Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). He is now only three years old. The claim that someday, when he is older, he might suffer psychological harm from the Secretary's passport decision is, the government argues, purely conjectural and in any event not an imminent injury, as the law requires. However that may be, we think he has suffered another sort of injury in fact and therefore has standing.

The Supreme Court has recognized that “Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Or stated differently, “Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute.” Warth v. Seldin, 422 U.S. 490, 514, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see Lujan, 504 U.S. at 578, 112 S.Ct. 2130.

A common example of such a statute is the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Anyone whose request for specific information has been denied has standing to bring an action; the requester's circumstances—why he wants the information, what he plans to do with it, what harm he suffered from the failure to disclose—are irrelevant to his standing. See, e.g., Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). The requester is injured-in-fact for standing purposes because he did not get what the statute entitled him to receive. See FEC v. Akins, 524 U.S. 11, 23–25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998); id. at 30–31, 118 S.Ct. 1777 (Scalia, J., dissenting); Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. at 449, 109 S.Ct. 2558; Pub. Citizen v. FTC, 869 F.2d 1541, 1548 n. 13 (D.C.Cir.1989); Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1039 n. 3 (D.C.Cir.1985); Brandon v. Eckard, 569 F.2d 683, 687–88 (D.C.Cir.1977). The same injury can give a plaintiff standing to enforce the Government in the Sunshine Act, 5 U.S.C. § 552b, see Rushforth, 762 F.2d at 1039 n. 3, and the Federal Advisory Committee Act, 5 U.S.C. app. 2 §§ 1–16, see Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. at 449, 109 S.Ct. 2558. Other Supreme Court statutory standing cases are similar. The “Supreme Court has expressly ruled that persons seeking to vindicate a statutory right to information have standing even if they know or should know that the untruthful information they receive is false, see Havens Realty [Corp. v. Coleman, 455 U.S. 363, 374, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) ], and even if the information is available to them through other channels, see [Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 n. 15, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) ].” Pub. Citizen v. FTC, 869 F.2d 1541, 1548 n. 13 (D.C.Cir.1989).

The Supreme Court has qualified statutory standing in one respect. In Lujan the Court held that the citizen-suit provision of the Endangered Species Act of 1973 § 11(g), 16 U.S.C. § 1540(g), could not bestow standing on plaintiffs who claimed no “particularized” injury, but only a generalized interest shared by all citizens in the proper administration of the law. 504 U.S. at 573–74, 112 S.Ct. 2130; see also Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (“[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.”). By “particularized” the Court meant “that the injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. While a person would have standing to vindicate his “individual right” created by statute, “the public interest in the proper administration of the laws ... [cannot] be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue.” Id. at 576–77, 112 S.Ct. 2130. Otherwise, the federal courts would intrude upon the President's constitutional duty to “take Care that the Laws be faithfully executed,” U.S. CONST. art. II, § 3, in violation of the separation of powers. Lujan, 504 U.S. at 577, 112 S.Ct. 2130. [FN: This case would be like Lujan if someone born in the United States with no connection to anyone born in Jerusalem sued the State Department claiming that it was violating § 214(d) by not complying with requests of U.S. citizens born in Jerusalem to put “Israel” on their passports.]

Menachem's case presents no such problem. When a plaintiff is the “object of [government] action (or forgone action) .... there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” *619 **274 Id. at 561–62, 112 S.Ct. 2130. Although it is natural to think of an injury in terms of some economic, physical, or psychological damage, a concrete and particular injury for standing purposes can also consist of the violation of an individual right conferred on a person by statute. Such an injury is concrete because it is of “a form traditionally capable of judicial resolution,” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220–21, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), and it is particular because, as the violation of an individual right, it “affect[s] the plaintiff in a personal and individual way,” Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130.

The injuries in the FOIA cases mentioned above are of this sort. See Sargeant v. Dixon, 130 F.3d 1067, 1070 (D.C.Cir.1997) (“The receipt of information is a tangible benefit the denial of which constitutes an injury.”). And so is Menachem's. See Allen v. Wright, 468 U.S. 737, 751–52, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (“In many cases the standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing cases.”). His allegation that Congress conferred on him an individual right to have “Israel” listed as his place of birth on his passport and on his Consular Birth Report is at the least a colorable reading of the statute. He also alleges that the Secretary of State violated that individual right. This is sufficient for Article III standing. See Reservists Comm. to Stop the War, 418 U.S. at 224 n. 14, 94 S.Ct. 2925. Menachem's injury is not “too abstract,” the connection between the allegedly illegal conduct and the injury is not “too attenuated,” and the prospect of his obtaining relief from a favorable ruling is not “too speculative.” Allen, 468 U.S. at 752, 104 S.Ct. 3315. Under Article III of the Constitution, the “imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions.” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 403, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Menachem's suit satisfies each element and he therefore has standing to sue.

Posted by: Marty Lederman | May 18, 2015 7:34:04 AM

I teach this stuff every year and have written about it a little bit and stil find myself asking 1L questions. If Congress passes a statute giving you a right to something and it is in their power to pass the statute, how can a claim that you were denied what you were legally entitled to not be a "case or controversy" under Article III. Or, if you prefer, why is the breaking of that statutory promise not an "injury in fact?" Any other conclusion is anti-litigation sophistry (not to mention anti-democratic).

Posted by: Andrew Siegel | May 17, 2015 1:37:18 PM

I missed this amazing conversation as it was happening, but belatedly I'll note that no court has yet found a psychic or expressive injury in Zivotofsky. Moreover, finding one is complicated by the fact that he was baby when the suit was filed.

If the Court really doesn't want to hold the case it might be able to come up with a theory sua sponte, of course, but it is normally a Court of review, not first view.

Posted by: Will Baude | May 17, 2015 9:58:48 AM

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