Earlier today, the Ninth Circuit issued its long-awaited Article III standing opinion in Robins v. Spokeo. The Ninth Circuit’s new opinion comes after the Supreme Court vacated and remanded the Ninth Circuit’s earlier opinion in the same case.
The Ninth Circuit’s opinion today continues a trend among the circuit courts, identifying intangible harms arising from statutory violations that constitute concrete harm under Article III.
In reaching its conclusion, the Ninth Circuit borrowed liberally from the recent Second Circuit decision in Strubel. It also cites a range of other circuit court opinions, suggesting a burgeoning consensus in what had been a murky and arguably dissonant jurisprudence.
The Ninth Circuit laid out its framework as follows:
In evaluating Robins’s claim of harm, we … ask: (1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.
To answer the first question, the court examined the statutory purpose, and whether those aims were “‘real,’ rather than purely legal creations.” In holding that they were, the court also pointed to the fact that similar interests have been protected at common law:
Just as Congress’s judgment about an intangible harm is important to our concreteness analysis, so is the fact that the interest Congress identified is similar to others that traditionally have been protected.
As for the second question, the court emphasized that even after finding that a statute protects concrete interests, it is still necessary to evaluate the specific alleged violation. The violation must itself “raise a real risk of harm to the concrete interests that [the statute] protects.” If it does, then a finding of concreteness will follow, even where the likelihood of future, demonstrable harm “could be debated.”
Further analysis from the circuit courts will be needed to determine how much the Ninth Circuit and other circuits’ opinions truly are in sync. For example, the Third Circuit’s recent opinion in Susinno (which is not mentioned in today’s opinion), required both (i) allegations of “the very injury” the statute intended to prevent, and (ii) a “close relationship” between that injury and a traditionally recognized harm. While the Ninth Circuit considered the same two concepts, it did not explicitly require that both be satisfied.
Likewise, further clarity could help with understanding the importance of distinguishing between “substantive” and “procedural” violations. Today’s ruling provides somewhat contradictory guidance: the opinion turns, on the one hand, on whether a statutory provision at issue protects “concrete interests (as opposed to purely procedural rights),” while also quoting with approval the Second Circuit’s language that “an alleged procedural violation can by itself manifest concrete injury.” It’s possible the Ninth Circuit and others will eventually come to the same conclusion reached in Judge Posner’s recent ruling, which dismissed “this attempted distinction between substantive and procedural statutory violations” as wholly beside the point.