Chemerinsky: What are the limits of congressional power to authorize suits?
Erwin Chemerinsky.
Spokeo Inc. v. Robins, which will be argued on Monday, Nov. 2, has the potential to significantly change the law in terms of the ability of federal statutes to authorize suits in federal courts. For this reason, 17 conservative and business groups—including the Chamber of Commerce, the National Association of Home Builders, the Pacific Legal Foundation, the Washington Legal Foundation, and eBay—have filed amicus briefs on the side of the petitioner urging limits on standing. Likewise, 15 amicus briefs have been filed on behalf of respondent, by groups such as Natural Resources Defense Council, Public Justice, Public Citizen, Pension Rights Center and Lawyers Committee for Civil Rights Under Law.
The case is attracting substantial attention because it raises the question of Congress’ power to authorize standing to sue in federal court by recognizing injuries that likely otherwise would not be sufficient to permit standing. The large number of amicus briefs reflects the recognition that this could affect the ability to sue under a vast array of federal laws, especially in the consumer protection and environmental areas.
Spokeo owns and operates a website that provides in-depth reports, for a fee, containing extensive personal information about individuals. The website’s slogan is “Search People. Reunite.” The reports can include the person’s address, phone number, marital status, names of siblings and parents, as well as age, occupation, employment status, education, ethnicity, property value and hobbies. The reports, culled from public information as well as personal information people submit online, include whether the person has a criminal history or known involvement with illegal drugs. A picture is sometimes included, as are other facts ranging from whether the person has children to whether he or she has a swimming pool. It also includes financial information about individuals, including mortgage value, investments, and a wealth assessment. Spokeo does not ask permission from the individuals to publish their personal information.
Thomas Robins alleged that his Spokeo profile was filled with inaccuracies. Among them: that he had a graduate degree; that he was employed in a professional or technical field; that his economic health was “very strong”; and his wealth level was in the top 10 percent (at a time he was out of work and seeking employment). The report also stated he was in his 50s and married with children, neither of which was true. The report included a photograph purporting to be of Robins that was not, in fact, him.
Robins sued Spokeo for violating the Fair Credit Reporting Act. Among other things, this law authorizes victims of “willful” violations to recover statutory damages of “not less than $100 and not more than $1,000.” Robins alleged that “when Spokeo created this inaccurate report it was aware of the inadequacies in its processes, was aware of its failure to follow the procedures the FCRA requires to assure maximum possible accuracy of the reports it generates, and, as a result, had willfully violated the FCRA.” The federal district court dismissed Robins’ suit on standing grounds, but the 9th U.S. Circuit Court of Appeals reversed and allowed the suit to go forward.
Spokeo argues to the Supreme Court that Robins should not be able to sue in federal court because he has failed to show “any real-world injury.” Spokeo maintains that Robins lacks standing to sue because he cannot show that he was hurt in any way by the false information on the website.
Spokeo sees dire consequences to allowing Congress to authorize standing to sue: “If allowed to stand, that decision would eviscerate Article III’s standing requirements by rendering the injury-in-fact requirement an empty formality. A dispute could engage the federal judicial power whenever a plaintiff alleged a violation of any technical requirement imposed under the FCRA or many other statutes. … [H]owever, Article III does not extend standing to a plaintiff who has not suffered concrete harm.”
By contrast, Robins argues that the Supreme Court long has recognized that Congress, by statute, can create rights, albeit ones that would not exist without the law, and the infringement of those rights is sufficient for standing. Robins argues: “No decision of this Court holds that Article III bars Congress from creating personal legal rights and fashioning monetary relief to redress them in federal court. Spokeo’s plea to overturn this settled body of law should be rejected.” Robins contends that the law always has allowed standing to sue for infringement of legal rights without a need to show consequential harm.
Robins is correct in his statement of the law: The Supreme Court consistently has held that Congress by statute can create rights that otherwise would not exist and the infringement of those rights is sufficient for standing. The court explained in Warth v. Seldin that “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.” The question is whether the court will impose a significant limit on this by saying that the plaintiff also must then demonstrate another “real world” injury besides the infringement of the statutory right.
The implications are potentially enormous. The federal Freedom of Information Act creates a statutory right to all documents possessed by the federal government unless they fit into one of nine categories of exceptions. It authorizes suit by anyone whose request for information is denied. No other injury is required. Under Spokeo’s approach, it would seem that the individual would need to show some “real world harm” to being denied the record in order to be able to sue in federal court.
One of the initial Supreme Court cases recognizing the ability of Congress to recognize such injuries was Trafficante v. Metropolitan Life Insurance Co. in 1972. In Trafficante, two white residents of an apartment complex were accorded standing to challenge the owner’s discrimination against black applicants in violation of the Civil Rights Act of 1968. The Supreme Court concluded that the statute created a right to be free from the adverse consequences of racial discrimination and accepted the plaintiffs’ claim that they were injured in being deprived of the right to live in an integrated community. No other injury was required. In fact, the court said in 1982’s Havens Realty Corp. v. Coleman that Trafficante establishes the proposition that “the actual or threatened injury required by [Article] III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” The question is whether the court now will say that more is needed for standing.
The implications of Spokeo v. Robins are thus great. Businesses fear large class action suits under federal statutes, like the Fair Credit Reporting Act, with the possibility of billions of dollars of damages. Consumer and civil rights and environmental groups fear that a restriction on the ability of Congress to authorize standing could have a devastating effect on the ability to enforce federal statutes in these areas.
Although the general public rarely pays much attention to cases about standing, this is one that is likely to affect all of us.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
