Establishing Standing after Spokeo v. Robins

In Spokeo, Inc. v. Robins, No. 13-1339, slip op. at 9 (May 16, 2016), the Court held thatthe violation of a statutory right alone does not support Article III standing. Instead, the Courtsaid, standing requires a plaintiff to establish that he has suffered a “concrete,” “real” injury. Id.at 8. Thus, even if a person’s statutory right has been violated, that person does not havestanding to maintain an action to vindicate that right unless the violation of the right caused himsome other harm, such as the loss of money.

In doing so, Spokeo changed the law of standing for suits between private parties. Formany years, the Court said that standing could rest on a statutory violation. See, e.g., HavensRealty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982) (basing standing on the violation of the“statutorily created right to truthful housing information”); Sierra Club v. Morton, 405 U.S. 727,732 (1972) (declaring that standing can rest either on a “specific statute authorizing invocation ofthe judicial process” or on a “personal stake in the outcome”). The Court began to change coursein Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). There, the Court said that standingrequires a plaintiff to establish a factual injury beyond the mere violation of a statutory right.

But Lujan involved a suit against the federal government, and the opinion limited thefactual injury requirement to suits against the government. Id. at 578 (“[I]t is clear that in suitsagainst the Government, at least, the concrete injury requirement must remain.”). The concreteinjury requirement makes sense in these cases insofar as the motivating principle underlyingstanding is separation of powers, and the concrete injury requirement protects the separation ofpowers by limiting the ability of individuals to use the courts to force the government to act.

Spokeo extended the concrete injury requirement to suits between private parties allegingviolations of individual rights, stating “Article III standing requires a concrete injury even in thecontext of a statutory violation.” Spokeo, slip op. at 9. The concrete injury requirement makesless sense for these suits because they do not raise any obvious threats to separation of powers. By extending the concrete-injury requirement, Spokeo establishes a general constitutionalharmless error doctrine for statutory violations. Federal courts cannot hear a suit for the violationof a person’s rights if that violation did not cause any factual harm.

Still, for the most part, Spokeo does not significantly affect the standing of mostindividuals who allege the violation of their statutory rights. Most statutory rights exist toprotect against real-world harms. Trespass prohibits a person from entering the land of anotherwithout permission because a landowner is harmed when an uninvited person enters his land. Violations of substantive rights of this sort result in a factual harm.

Where Spokeo makes a difference is in suits involving alleged violations of proceduralrights. Some procedural provisions exist simply because there needs to be a procedure. Violating those provisions may not result in concrete harm. Failing to follow a statute requiringdocuments about a person to be printed in black ink instead of blue ink does not hurt that person.

But other procedures do protect individual interests. For example, the reason for discovery is tohelp parties prevail in litigation. As the Spokeo Court recognized, violating these proceduralrights does result in concrete injury. Slip op. at 10.

One difficulty for the future is distinguishing those procedural violations that do causeharm from those that don’t. In Spokeo, the Court suggested that the dissemination of an incorrectzip code would likely not cause concrete harm. But it is hard to generalize that way. Whether aperson suffers a real-world harm depends on the circumstances. Providing an inaccurate zipcode could result in a person not getting a job based on the conclusion that he lives farther awaythan he does or interfere with a person’s life in other ways. Standing in litigation in suits betweenprivate parties thus will inevitably be more fact specific.