The blog in a nutshell

The blog in a nutshell

Monday, October 26, 2015

Spokeo, Reading Policy into Article III, and Campbell-Ewald

Next Monday, the Court will hear Spokeo v. Robins.  This case involves the question - there, under the Fair Credit Reporting Act - of whether the Court has jurisdiction to hear a federal claim when the federal claim establishes a remedy as a matter of law without proof of injury.  It is unclear at this point whether any Article III limitation extends only to cases where the plaintiff also in fact does not allege injury, or (because the allegation would be extraneous to the claim) whether all such statutes fail to satisfy Article III jurisdiction.

(As an aside, the former seems a somewhat less revolutionary rule, as the latter would "invalidate" a number of statutes.  But the former leads to its own peculiarities, including  what would likely be a requirement to prove injury in a mini-trial before the judge, even while actual liability remains a question for later.)

The case has been well-briefed by the Mayer Brown team for Petitioner-Defendant and by an interesting odd couple of liberal appellate guru Deepak Gupta and conservative appellate guru William Consovoy for Respondent-Plaintiff and I don't want to restate their arguments.  But I do want to make two points about why a pro-Spokeo ruling here, if applied consistently to the text of Article III, would be revolutionary in its breadth,  and also why such a ruling will create dual sovereignty problems.  (The latter point you may recognize from my post on Campbell-Ewald.)  


Here is the text of Article III:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

This language chosen by the Founders is incredibly broad.  It applies to "all cases ... arising under ... the laws of the United States."  (Law and equity basically were the only two types of cases back then, so those words just make clear that it isn't limited to just one type of case or the other).  It also applies to "controversies to which the United States shall be a party,""to controversies between two or more states," and to "controversies .... between citizens of different states."

It's first worth noting that jurisdiction applies separately to "cases" and to "controversies."  The requirement is one or the other.  If it were not, then diversity jurisdiction would end, since those cases do not arise under the Constitution or the laws of the United States.  And it is unquestioned-full stop-that a claim under a federal law arises under the laws of the United States.  There is no "separate"" controversy requirement, at least as the plain text dictates. And, although lawyers like to use the phrase "case or controversy," the words "case" and "controversy" modify different possible grounds for jurisdiction.  If we follow the text, then, it should mean that the existence of injury is required by the use of the word "case" itself

Next, if a "case" requires injury (or, contrary to above, requires a "controversy" that in turn requires injury) the effect should logically go way beyond mere private causes of action.  The injury requirement would also apply to claims in which the United States is a party unless a "case" requires injury but a "controversy" does not.  Such a ruling does not make any sense from my end regarding the different usage of the two words, and if it did, it would have the peculiar effect of requiring "cases"

Thus, enforcing a pro-Spokeo rule could mean that the United States would have to prove injury for jurisdiction.  This could create significant difficulties for the United States in building civil enforcement claims, particularly if it wants to get in front of conduct early.  

Moreover, the statute technically does not differentiate between civil damages actions, injunctive relief cases, and criminal cases.  So if the federal government moves to enjoin certain activity, it may have to prove the potential injury in every case.  (Libertarians may not find this a bad result, but I do want to point out that it would be a sweeping change from government-brought civil actions today.)  What about criminal cases?  If criminal cases have to follow the same rule, what would that mean about "attempt" crimes in which there was no actual injury (yet)?  Can they be prosecuted?

One of the amicus briefs in favor of Spokeo, put forth by the Washington Legal Foundation, argues that Spokeo should win because only sovereigns should be allowed to bring claims merely to enforce laws, without injury, and private individuals should bring claims merely to redress injuries.  (So much for qui tam suits?)  Article III, however, does not make this distinction.  It provides jurisdiction for "cases" arising under the laws of the United States and "controversies" between citizens of different states just as much as it does "controversies to which the United States shall be a party."  If WLF is right, then it must be right because of a limitation entirely separate from any in the text of Article III.

To be fair, Spokeo's argument rests mostly on the types of claims that existed under English law in the past, which likely provides distinctions necessary to avoid these problems.  Spokeo argues that *because* claims where injury was not presumed by statute did not exist at common law, the founders did not intend them to be permitted to be brought under Article III.  (Robins rebuts that even some common law claims, such as assault, did not require injury and/or allowed it to be presumed.)  This, to me, is a sort of logical fallacy, one we see often in the law, related to but not quite the post hoc ergo proctor hoc fallacy ("after this, therefore because of this," essentially assuming causation because of correlation).  Just because something did not exist prior to the passage of the Constitution, does not mean that the Constitution intended to ban it.  Indeed, one could make the opposite assumption - if it did not exist prior to the Constitution, how could our founders intended to have prohibited it?  The reality is usually they did not consider it one way or another, and so we shouldn't take any stock in it either way.  Instead, we should focus on the contours the founders did consider relevant in determining whether it would be permitted or prohibited.  

Which is why we should rely on the words.  The founders did not use language indicating an injury requirement, or even a "mootness" requirement.  The founders thus did not assume that jurisdiction would turn on that ground.  While that does not mean Courts should never find a lack of jurisdiction for standing, either due to "mootness" or lack of injury, it should be important to focus on what the standing inquiry is really trying to get at, i.e., whether there really is a live dispute between the parties that the court can resolve, or instead a waste of judicial resources.  Given the existence of 17 amicus briefs in favor of Spokeo (10 just asking the Court to hear the case) and 16 in favor of Robins (including the federal government), it's pretty clear that whatever one thinks of the policy behind allowing private causes of actions absent a showing of injury, these cases are hardly foolish wastes of judicial resources.  Real money is at stake, and the parties really are in conflict about an entitlement to the money.  That's all that Article III should require.


And then, again, there is the same problem I mentioned in Campbell-Ewald.  The lack of Article III jurisdiction does not mean no jurisdiction at all, but instead simply no federal jurisdiction.  These cases can proceed in state courts so long as those states allow it.  Some states adopt a "case or controversy" requirement a la the federal government, some do it only on an informal level, and some have no requirement at all.  For those cases with a requirement, some might follow a pro-Spokeo decision, and some might not.  Thus, in some states these cases can be brought in state court, with federal review restricted to the Supreme Court level.  In other cases, they may not be brought at all.  This lack of uniformity and supervision in federal law makes no sense, but that would be the result.  And, contrary to the WLF brief discussed above, that makes it less likely that the purpose of an Article III limitation was so that only the executive would bring cases merely to enforce the law.  Such results should indicate strongly that Article III should not be used as a "tool" to avoid actual disputes between real parties.

In my next post, I want to discuss another Article III challenge, this in the patent act, that should also fail under this theory.

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