May 162016
 May 16, 2016  Business, Court, Misc

In a 6-2 opinion issued today, the Supreme Court has vacated the Ninth Circuit’s ruling in Robins v. Spokeo, and remanded the case.  At issue was what an individual had to demonstrate for Article III standing in suing under the Fair Credit Reporting Act (FCRA).

SCOTUS found that the Ninth Circuit’s analysis had been incomplete and that standing requires both “concrete” and “particularized” injury:

As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both “concrete and particularized.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180– 181 (2000) (emphasis added). The Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.


For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.”


Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be “concrete.” Under the Ninth Circuit’s analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins’ complaint alleges “concrete, de facto” injuries for essentially two reasons. 742 F. 3d, at 413. First, the court noted that Robins “alleges that Spokeo violated his statutory rights, not just the statutory rights of other people.” Ibid. Second, the court wrote that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” Ibid. (emphasis added). Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized. See, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. ___, ___ (2014) (slip op., at 8); Summers, supra, at 493; Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 274 (2008); Massachusetts v. EPA, 549 U. S. 497, 517 (2007).

A “concrete” injury must be “de facto”; that is, it must actually exist.


Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.

Justice Ginsburg dissented from the majority opinion, with Justice Sotomayor joining her. Ginsburg found Robins’ claims about the impact of Spokeo’s misinformation about him to be sufficient to meet the “concrete” requirement, as he alleged that the misinformation hurt his chances of finding employment while he was actively seeking employment:

Far from an incorrect zip code, Robins complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market. See Brief for Center for Democracy & Technology et al. as Amici Curiae 13 (Spokeo’s inaccuracies bore on Robins’ “ability to find employment by creating the erroneous impression that he was overqualified for the work he was seeking, that he might be unwilling to relocate for a job due to family commitments, or that his salary demands would exceed what prospective employers were prepared to offer him.”); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 35 (“An applicant can lose [a] job for being over- qualified; a suitor can lose a woman if she reads that he is married.”). The FCRA’s procedural requirements aimed to prevent such harm. See 115 Cong. Rec. 2410–2415 (1969). I therefore see no utility in returning this case to the Ninth Circuit to underscore what Robins’ complaint already conveys concretely: Spokeo’s misinformation “cause[s] actual harm to [his] employment prospects.” App. 14.

This post was corrected post-publication because I had counted incorrectly on my fingers. It was a 6-2 decision, not 5-2, as I originally reported.

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