How to avoid the standing problem in Floyd: a relaxed approach to standing in class actions.

• Author: Steward, William I.
• Position: COMMENT

INTRODUCTION I. An Overview of Standing A. Injury in Fact B. Redressability II. Standing in Class Actions: Theory and Precedent for a Relaxed Approach A. Theory B. Precedent III. Standing in Floyd A. What the Court Said B. What the Court Actually Meant Conclusion Introduction

David Ourlicht, a black Manhattan man in his twenties, was stopped and frisked by New York City police officers three separate times in 2008. (1) That same year, Ourlicht and three other black men who had similarly been stopped and frisked filed a federal lawsuit against the City of New York, alleging that the New York City Police Department's stop-and-frisk program violated their Fourth and Fourteenth Amendment rights. (2) The plaintiffs brought a class action suit in the Southern District of New York on behalf of themselves and all others similarly situated, and they sought an injunction mandating an overhaul of the City's stop-and-frisk program. (3) The case, Floyd v. City of New York, was heard by Judge Shira Scheindlin, who, in 2013, found that the City's stop-and-frisk program was unconstitutional (4) and ordered sweeping changes to the program. (5) The plaintiffs got results: in 2011, NYPD officers stopped 686,000 individuals, or on average more than 13,000 per week; (6) by the end of 2013, such stops had fallen by more than 90% to fewer than 2000 per week. (7)

But an even more consequential decision in the case may have been an earlier, overlooked one: in 2012, the Floyd court found that the plaintiffs had standing to seek an injunction. (8) More specifically, the court found that David Ourlicht had standing, and since he was a class representative, his standing satisfied Article Ill's case or controversy requirement. (9) In so holding, however, the court appeared to run afoul of two Supreme Court precedents: one that requires a plaintiff seeking injunctive relief to "establish a real and immediate threat that he [will] again" suffer the alleged harm, (10) and another that holds "[t]hat a suit may be a class action ... adds nothing to the question of standing."'! Was there actually a real and immediate threat that David Ourlicht would again be stopped and frisked by NYPD officers? That seems doubtful.

And yet the district court's finding that the plaintiffs had standing was correct, under both class action theory and Supreme Court precedent. This Comment articulates the reasons why it was correct. Part I begins by giving a brief overview of standing generally. Part II shows how theory and precedent justify a relaxed approach to standing in class actions. Finally, Part III explains the Floyd court's standing analysis and shows that, below the surface, the court was actually using a justifiably relaxed approach.

1. An Overview of Standing

   Article III of the U.S. Constitution gives federal courts the power to hear certain cases and controversies. (12) Standing is a doctrine, read into Article III and expanded beyond it, that developed out of "some basic sense that not everyone who wanted to go to court could do so." (13) One of the Supreme Court's classic formulations of the standing question asks whether the plaintiff has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions." (14) Plainly, answering such a question is hardly like answering a simple question such as "Is it raining?" and the vagueness of the standing inquiry--in that formulation and more generally--gives judges a lot of room to maneuver. Like the other "doctrines that cluster about Article III," standing relates "to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." (15) In other words, standing analysis in practice is often an unguided and results-oriented mess.

   As alluded to, standing has both constitutional and nonconstitutional aspects. Under current constitutional doctrine, standing has three elements that each federal plaintiff must satisfy: (1) injury in fact--"an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent"; (2) causation--the injury must be traceable to the defendant's actions; and (3) redressability--it must be "'likely' ... that the "injury will be 'redressed by a favorable decision.'" (16) On top of these Article III limits, the Supreme Court has also imposed nonconstitutional, policy-based restrictions on standing. This body of doctrine, known as "prudential" standing, (17) includes restrictions on hearing claims based on "widely shared grievance[s]" (18) and limits on a party's ability to litigate the rights of others. (19) Prudential standing's significance as a nonconstitutional doctrine is that, unlike with Article III standing, Congress can have the final word: "Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules." (20)

   Because both Floyd and City of Los Angeles v. Lyons, the Supreme Court case on which the Floyd court relied in its standing analysis, dealt with Article III standing, the rest of Part I attempts to untangle the history of--and problems with--the two prongs of Article III standing that are relevant here: injury in fact and redressability. (21)

   1. Injury in Fact

      In its 1970 decision in Association of Data Processing Service Organizations v. Camp, the Supreme Court first established "injury in fact" as a constitutional requirement of standing. (22) In doing so, the Court altered standing's pre-Data Processing injury requirement (23) by untethering it from a need to show a violation of any particular law. (24) "Altered" is intentionally inconclusive: it remains unclear whether injury in fact relaxed or heightened the standard compared to legal injury. (25) In its less strict incarnations, injury in fact is satisfied as long as the plaintiff alleges that he suffered an "adverse effect" from the defendant's conduct (26)--an easy bar to clear. But the vagueness of injury in fact has allowed the Court to draw arbitrary lines between "judicially cognizable" injuries and those that are "too abstract" to satisfy Article III. (27)

      Because it introduced this unpredictable malleability, and for other, more fundamental reasons, the injury in fact requirement has been subject to significant criticism. (28) The core of this criticism was perhaps best expressed by Judge William Fletcher, then a professor, who argued that the requirement "cannot be applied in a non-normative way" because there "cannot be a merely factual determination [disconnected from any consideration of legal rights of] whether a plaintiff has been injured." (29) To illustrate the incoherence of injury in fact, Fletcher described a man, not himself homeless, who is upset by the government's cutbacks of welfare to the homeless. A court would likely say that the man has no standing to sue the government, because he has not suffered an injury in fact. But being upset is a factual injury, so what the court would actually be saying is that being upset is not a sufficient injury to sue under the relevant welfare law. (30)

      Justice Scalia, who long recognized that giving injury in fact its plain meaning results in standing for far too many plaintiffs for his tastes, had long sought to harness the term like the hypothetical court did in the welfare case above. (31) In Lujan v. Defenders of Wildlife, the apex of this effort, Scalia constitutionalized a distinction between suits where the "plaintiff is himself an object of the action (or foregone action) at issue" and suits where the "injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else." (32) Scalia's argument is that because injury in fact is a constitutional requirement that each plaintiff must show, Congress does not have the power to grant individuals who do not have such an injury standing to sue on behalf of those who do. (33) Yet while Lujan's invalidation of congressional grants of such "citizen suits" is still good law, (34) its logic, like that of injury in fact doctrine's generally, is weak and not supported by the history of Article III: "With respect to standing ... the key question [should be] whether Congress (or some other relevant source of law) has created a cause of action." (35) If it has, the plaintiff has standing; if it has not, the plaintiff does not.

   2. Redressability

      For years, the Supreme Court collapsed causation and redressability into a single inquiry. (36) This was an analytical error, because the concepts are distinct; whether the defendant's actions caused the plaintiff's injury is a fundamentally different question than whether the remedy the plaintiff seeks will actually address that injury. (37) A good example of redressability as an independent requirement, and one of the Court's first uses of it as a constitutional bar to a suit by a plaintiff who otherwise had standing, is Linda R.S. v. Richard D38 In Linda R.S., the mother of an illegitimate child sued the local prosecutor to compel the prosecution of the child's father for failure to pay child support. (39) The Court found that because the harm the mother alleged was that she had not received support payments, it was unclear whether the harm would be addressed by the remedy she sought: "The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative." (40)

      Beyond its direct holding, Linda R.S. illustrates something else: that the redressability inquiry is always related to how the injury is characterized. (41) In City of Los Angeles v. Lyons, the Court clarified this point by erecting a barrier to a plaintiff's attempt to enjoin future harm even when the...