THE SUPREME COURT ACKNOWLEDGES CONGRESS' AUTHORITY TO CONFER INFORMATIONAL STANDING IN SPOKEO, INC. V. ROBINS.

• Author: Mank, Bradford C.

ABSTRACT

The Supreme Court 's 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant's misreporting of a plaintiff's personal information is sufficient to constitute a "concrete injury" for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries for Article III standing beyond what was considered an injury under the American or English common law. Some commentators had thought Spokeo might overrule the Court's prior decisions in Akins and Public Citizen, which both held that a plaintiff may have standing based solely upon his statutory right to information. Instead, the Court in Spokeo reaffirmed its informational standing decisions in Akins and Public Citizen.

TABLE OF CONTENTS INTRODUCTION I. ARTICLE III CONSTITUTIONAL STANDING II. INFORMATIONAL STANDING: PUBLIC CITIZEN AND AKINS A. Public Citizen v. United States Department of Justice B. Akins III. DOUBTS ABOUT INFORMATIONAL STANDING AND SPOKEO'S REASSURANCE OF INFORMATIONAL STANDING A. Some Commentators Question Informational Standing B. Spokeo Reaffirms Informational Standing CONCLUSION INTRODUCTION

In 2016, the U.S. Supreme Court in Spokeo, Inc. v. Robins, a 6-2 decision by Justice Samuel Alito, recognized the significant authority of Congress to define intangible injuries such as a statutory right to information for the purposes of Article III standing to sue in federal courts. (1) However, the Court emphasized that a plaintiff must prove a concrete injury and, therefore, a procedural statutory violation may not automatically establish standing. (2) The Court remanded the case back to the Ninth Circuit because the court of appeals had found that the plaintiff had suffered an individualized injury from defendant Spokeo, Inc.'s alleged misreporting of his personal information, but failed to address whether the alleged injury was sufficiently concrete to confer informational standing. (3)

While the Spokeo case was pending before the Court, some commentators feared that the Court might require plaintiffs to prove a supplementary personal harm in addition to a statutory right to information and thus limit the ability of citizens to gain access to information from the government. (4) However, the majority opinion observed that a plaintiff enforcing a statutory right "need not allege any additional harm beyond the one Congress has identified." (5) The Court cited two prior decisions, Federal Election Commission v. Akins (6) and Public Citizen v. Department of Justice, (7) which both held the government's refusal to provide information for which Congress has created a statutory right to access constituted a sufficient informational injury for Article III standing. (8) The Court's refusal of an additional harm standard likely means that any plaintiff seeking information pursuant to a federal statute that explicitly grants the right to certain information, such as the Freedom of Information Act ("FOIA"), (9) may have standing based solely upon his statutory right to information without alleging that he will suffer additional harms if he does not obtain that information. (10) The Court's previous decisions in Akins and Public Citizen concluded that Congress may explicitly establish a statutory right to information," while Spokeo dispelled concerns that the Court might limit or overrule prior decisions recognizing informational standing. (12) The Spokeo decision explicitly recognized that "because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important" beyond how the English and American common law defined such injuries. (13)

Part I provides an introduction to standing doctrine. Part II discusses the Supreme Court's informational standing decisions in Public Citizen and Akins. Part III discusses how some commentators have raised doubts about informational standing, but argues that the Spokeo decision reaffirms the validity of informational standing without proof of additional harm.

1. ARTICLE III CONSTITUTIONAL STANDING (14)

   While the Constitution does not explicitly mandate that plaintiffs have standing to file suit in federal courts, the Supreme Court has inferred limitations on justiciability from the Constitution's Article III restriction of judicial decisions to "Cases" and "Controversies" to ensure that the plaintiff has a genuine interest and stake in a case. (15) The Court's three-part standing test requires a plaintiff to show that: (1) she has "suffered an injury-in-fact," which is (a) "concrete and particularized" and (b) "actual or imminent, not conjectural or hypothetical"; (2) "there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court"; and 16 (3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." (16) A plaintiff has the burden of establishing all three prongs of the standing test for each form of relief sought. (17) A federal court must dismiss a case without deciding the merits if the plaintiff fails to meet the constitutional standing test. (18)

   Standing requirements are related to broader constitutional principles. Standing doctrine prohibits unconstitutional advisory opinions. (19) Additionally, standing requirements support separation of powers principles defining the division of powers between the judiciary and political branches of government so that the "Federal Judiciary respects 'the proper--and properly limited--role of the courts in a democratic society.'" (20) The Court's standing decisions, however, are complicated and arguably inconsistent in defining to what extent separation of powers principles limit the standing of suits challenging alleged executive branch under-enforcement or non-enforcement of congressional requirements mandated in a statute. (21)

   For example, in Lujan v. Defenders of Wildlife (22) the Supreme Court, in an opinion by Justice Scalia, interpreted the Court's standing doctrine to require a plaintiff to show that she has "suffered an injury-in-fact," which is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." (23) Justice Scalia's Lujan opinion suggested that allowing a plaintiff who has not suffered a concrete injury to sue the U.S. Government to challenge its alleged failure to enforce the law would improperly interfere with both Article III standing principles and the President's Article II constitutional authority to "take Care that the Laws be faithfully executed." (24)

   Some commentators have contended that Justice Scalia's restrictive approach to standing hinders the role of Congress in permitting judicial oversight to guarantee that the executive branch obeys enacted laws. (25) Nevertheless, Justice Scalia in Lujan acknowledged that Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." (26) Furthermore, in footnote seven of Lujan, the Court created an exception to its otherwise narrow approach to standing by observing that plaintiffs who may suffer a concrete injury resulting from a procedural violation by the government are entitled to a more relaxed application of both the imminent injury and the redressability standing requirements to sue in federal court. (27)

   In his concurring opinion in Lujan, Justice Anthony...