by Craig L. Jackson, Professor of Law, Texas Southern University Thurgood Marshall School of Law
Can Congress create standing for violation of a statutory right by identifying as injury the violation of that statutory right? What does that mean? What seems to be a relatively simple question from reading Supreme Court cases that appear to stand for the position that Congress can create standing apparently is more complex than the cases let on. In Spokeo v. Robins, which is before the Supreme Court this term, the Court is being asked to resolve the question of whether the credit reporting firm Spokeo’s misreporting of Robins’ personal information alone creates standing on Robins’ part to sue Spokeo under the Fair Credit Reporting Act.
The Act provides a cause of action for persons who are the subject of credit reporting where the reporting firm does not follow the Act’s procedural requirements. Does that alone create the kind of standing required by Article III’s case and controversies provision? This was alluded to in Warth v. Seldin, quoting Linda R. S. v. Richard D. (“[A]ctual or threatened injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing…’”), restated in Lujan v. Defenders of Wildlife (Nothing in this contradicts the principle that "[t]he . . . injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.'"), and reiterated in Justice Kennedy’s Lujan concurrence (“In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view.”). What makes the question even more interesting is the fact that Robins’ actual injury may have been speculative, at best, as no specific harm to his credit rating or employment opportunities were alleged in his complaint against Spokeo.
The language from Warth, Lujan, and Kennedy’s concurrence in Lujan may have given the impression that a congressional act can create injury (through the bestowal of statutory rights) where none had existed before. By that understanding, Congress can, for whatever purposes, green light suits against offending actors by virtue of a violation of an act by declaring that violation harm to the potential plaintiff. This was certainly the understanding of the Ninth Circuit, and it was apparently the understanding held by Justice Sotomayor as evidenced by this exchange during oral arguments earlier this month: