Opinion analysis: Case on standing and concrete harm returns to the Ninth Circuit, at least for now

Although the Courts ruling in the challenge to the Affordable Care Acts birth-control mandate dominated todays coverage of the Court, it wasnt even the only underwhelming decision of the day. Another one of todays opinions, in Spokeo v. Robins, also proved to be somewhat of a disappointment. It was a narrow victory for Spokeo, a company that operates a people search engine, in the lawsuit filed against it by Thomas Robins, a Virginia man who contends that Spokeo violated the federal Fair Credit Reporting Act when it published false information about him. But the victory could be only temporary: the Justices sent the case back to the lower court for it to take another look at whether Robins had alleged the kind of injury that would allow his suit to go forward, leaving open at least the possibility that Robins could prevail and the case could even return to the Supreme Court.

Robins contends that Spokeo published information indicating that he was wealthy, married with children, and worked in a professional or technical field. In fact, though, he isnt married and doesnt have children; he was also out of work and looking for a job. Those inaccuracies are a problem, Robins contends, because they could make him seem overqualified for the positions he was seeking or suggest that he might want a higher salary or be unwilling to relocate because of his responsibilities to his (non-existent) family. But are those allegationsenough to sue?

Robins filed a lawsuit in federal court, arguing that Spokeos publication of the inaccurate information about him violated the Fair Credit Reporting Act, which requires companies like Spokeo to follow reasonable procedures to ensure maximum possible accuracy of the information that it makes available for use in credit reports. The district court dismissed Robinss case on the ground that he lacked standing the legal right to bring a case because he could not show any actual harm from Spokeos publication of inaccurate information about him. The U.S. Court of Appeals for the Ninth Circuit reinstated Robinss case, but the Supreme Court granted Spokeos request to weigh in.

In a six-to-two decision written by Justice Samuel Alito, the Court instructed the Ninth Circuit to review the standing question again. To have standing, it explained, Robins needed to show (among other things) an injury in fact from Spokeos publication of inaccurate information about him. Moreover, the Court emphasized, the injury needed to be both concrete and particularized. But the Ninth Circuits analysis, the Court reasoned, had elided those two requirements, concluding that Robins had alleged a concrete injury because it was particularized: Robins had alleged that Spokeo violated his statutory rights, and that his interests in the handling of his credit information are individualized rather than collective.

The Court took pains to make clear that the requirement of a concrete injury is not necessarily synonymous with tangible. To the contrary, it observed, intangible injuries can nevertheless be concrete. The question, then, becomes where and how to draw that line. With FCRA, the Court noted, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. At the same time, it cautioned, not all violations of FCRA will automatically result in the kind of concrete harm that the Constitution requires for standing. For example, the Court suggested, it is difficult to imagine how getting someone’s zip code wrong, without more, could work any concrete harm.

Because the Ninth Circuit had not analyzed whether the particular violations of FCRA that Robins alleged create a degree of risk sufficient to meet the concreteness requirement, the Court sent Robinss case back for the lower court to do just that. The Court did not, it reiterated, decide whether the Ninth Circuits ultimate conclusionthat Robins adequately alleged an injury in factwas correct.

Justice Ruth Bader Ginsburg dissented from the majoritys ruling, in an opinion joined by Justice Sonia Sotomayor. Although she agreed with much of the majoritys reasoning, she did not believe that the case needed to go back to the Ninth Circuit because — in her view — Robins had already alleged a concrete harm in his complaint: Spokeos misinformation, she insisted, does cause actual harm to [Robinss] employment prospects.

Spokeo and its supporters had no doubt hoped for a decisive, bright-line ruling that would sharply limit the ability of plaintiffs (and their lawyers) to bring lawsuits based on the violation of statutes like FCRA, particularly when it comes to the publication of inaccurate information on the Internet. And while certainly relieved that his lawsuit would continue, at least for now, Robins and his allies likely would have preferred a broader ruling in his favor. Todays eight-Justice Court may have split the difference, but we could very well get something more definitive on these issues from a nine-Justice Court in the not-too-distant future.