In a 6-2 opinion issued May 16, 2016, the Supreme Court vacated a Ninth Circuit holding that a plaintiff who alleges that his own federal statutory rights have been violated has alleged enough to establish Article III standing to sue. The Court remanded the long-pending Fair Credit Reporting Act case, Spokeo, Inc. v. Robins, no. 13-1339, for consideration of whether the plaintiff has otherwise alleged in his complaint a sufficiently concrete injury for standing purposes. Spokeo’s limited yet potentially significant holding leaves many questions unanswered.
The Complaint’s Allegations
Spokeo, Inc. runs a people search engine that provides information on individuals. The plaintiff alleged that Spokeo provided inaccurate information about him. The misinformation included that he was married, had children, was in his 50s, had a job, was relatively affluent, and held a graduate degree. None of this information was correct, according to the complaint. According to the Ninth Circuit’s opinion, the plaintiff alleged that the misinformation caused actual harm to his employment prospects and caused him anxiety and stress. 724 F.3d at 411. The plaintiff filed a class action complaint alleging several Fair Credit Reporting Act violations. The district court ultimately dismissed the complaint for lack of standing
The Ninth Circuit’s Ruling
On appeal, the Ninth Circuit reversed. The court held that the plaintiff had standing to sue for two reasons: first, because he alleged that Spokeo violated his statutory rights, not the rights of others; and, second, that the statutory rights at issue were sufficiently concrete and particularized that Congress could elevate them to the status of legally cognizable injuries. Id. at 413. The court did not address how the plaintiff’s somewhat more specific allegations of injury might figure into the analysis.
The Supreme Court Ruling
The Supreme Court reversed the Ninth Circuit, in an opinion by Justice Alito. The Court held that the Ninth Circuit’s analysis was incomplete. The focus was on Article III’s standing requirement, specifically the “injury-in-fact” component. Not only must an injury-in-fact be particularized, i.e., affecting the plaintiff in a personal and individual way, the Court explained, the injury must also be concrete. A concrete injury, however, need not necessarily be tangible. The Court noted that in determining whether an intangible harm constitutes an injury-in-fact “both history and the judgment of Congress play important roles.” (Slip op. at 9.) An intangible harm that has a close relationship to a harm that has traditionally provided the basis for a lawsuit in English or American courts is a stronger candidate for recognition. (Id.) And Congress may elevate, to the status of legally cognizable, “concrete, de facto injuries that were previously inadequate in law.” (Id.) But Congress’ role “does not mean that a plaintiff automatically satisfies 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.” (Id.) Accordingly, the plaintiff cannot allege a “bare procedural violation” of FCRA and satisfy the injury-in-fact requirement. Noting that not all consumer reporting inaccuracies cause harm or present any material risk of it, the Court cited the example of an incorrect zip code: “It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” (Id. at 11.)
Because the Ninth Circuit did not address the question framed by the Court’s discussion, “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement,” the Court remanded the case and expressly took no position on the ultimate outcome.
Justice Thomas concurred fully in the opinion but offered his separate views on when standing may exist to vindicate public rights. Justice Ginsburg, joined by Justice Sotomayor, dissented on the necessity for remand in view of the plaintiff’s allegations of harm to his employment prospects.
Implications of Decision
While limited in scope because of its level of abstraction, Spokeo still might prove to be a significant decision. On remand, the Ninth Circuit’s most likely choices seem to be to probe deeper into the plaintiff’s allegations and find a sufficiently concrete injury or to remand to district court for a hearing on standing. The case is likely to be closely monitored for further developments which will influence the long-term impact of today’s decision. The zip code example is likely to resurface frequently in future opinions that discuss Spokeo.
Today’s decision by the Court also does not address its implications for the putative class that the plaintiff seeks to represent. In a class action, the objective is often a recovery of statutory damages for each class member which, like many other federal consumer protection statutes, the Fair Credit Reporting Act authorizes for certain violations. (Proof of actual damages is usually regarded as too individualized to permit class action treatment.) Spokeo implies that each class member would have to establish concrete injury to have standing to participate as an unnamed class member.
