To seek relief in federal court, a plaintiff must demonstrate standing: that is, a personal, legally protectable interest in the outcome of the dispute. Standing is often self-evident. In recent years, however, technological advancements in the way we live and work have resulted in a proliferation of litigation based on intangible harms arising from the use or misuse of information, the violation of privacy rights, and the like. The amorphous nature of such harms has brought the doctrine’s complexities to the forefront.
Conceptually, the standing doctrine originates from Article III of the U.S. Constitution, which limits the power of the federal courts to adjudicating cases and controversies arising under the U.S. Constitution or federal law, under treaties made pursuant to the authority of federal law, under admiralty and maritime jurisdiction, and between citizens of different states (subject to further limitations, set forth in the Judiciary Act of 1789).
To invoke the power, or subject matter jurisdiction, of a federal court, the plaintiff must demonstrate that he or she suffered a concrete and particularized “injury in fact,” that the injury is fairly traceable to the defendant’s conduct, and that the relief sought will redress the harm. As recently as May 2016, the U.S. Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), emphasized the requirement of an injury in fact, holding that a bare procedural violation of a federal statute, divorced from any concrete harm, is insufficient to confer constitutional standing upon a litigant. To invoke the jurisdiction of a federal court, the plaintiff must plead (and prove) that the alleged violation caused the plaintiff to suffer actual harm.
Through the years, the judiciary has expanded the concept of standing beyond Article III by taking into account prudential considerations that do not necessarily implicate subject matter jurisdiction, such as requiring that a plaintiff bring suit to vindicate his or her own rights, as opposed to the rights of a third party, and prohibiting federal courts from adjudicating generalized grievances. In addition, federal courts apply principles of statutory interpretation to determine whether the plaintiff’s interests are within the zone of interests that the statute was designed to protect. Statutory standing focuses on the merits of the plaintiff’s case.
As the late Justice Antonin Scalia explained in Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), standing is “an indispensable part of the plaintiff’s case,” requiring that the plaintiff support each element of standing “with the manner and degree of evidence required at the successive stages of the litigation.” If, at any time, the court determines that it lacks subject matter jurisdiction, either on the motion of a party or of its own accord, the court must dismiss the action. It is therefore crucial for a litigator to understand and evaluate standing before starting a lawsuit, in formulating defenses or counterclaims, and throughout the litigation, as investigation and discovery yield new information.
An unreported case, Stoops v. Wells Fargo Bank, N.A., No. 3:15-83, 2016 WL 3566266 (W.D. Pa. June 24, 2016), handily illustrates a modern application of the standing inquiry.
In Stoops, the plaintiff sued the defendant for alleged violations of the Telephone Consumer Protection Act (TCPA). The TCPA makes it unlawful for any person to use an automatic dialer or artificial or prerecorded voice to make a nonemergency call to a cellular telephone number without the called party’s prior express consent. Although Congress enacted the statute to curb relentless telemarketing, the TCPA’s protections extend to collection and informational calls. The statute authorizes a private right of action to enjoin violations and to recover actual monetary loss or statutory damages of up to $500 per call or, for knowing or willful violations, up to $1,500 per call.
The most damning aspect of the TCPA is that it exposes callers to significant liability for unwittingly dialing wrong numbers. Under current interpretations of the statute, the actual recipient of the call has standing to sue for violations. There is no meaningful safe harbor for creditors intending to call someone else.
During the course of discovery in Stoops, the plaintiff readily admitted that she was in the business of suing creditors for TCPA violations. To generate claims, she purchased 35 prepaid cellular telephones, providing the carrier with Florida zip codes to obtain cellular telephone numbers in “economically depressed” areas to sweeten her odds of receiving wrong number calls. The plaintiff occasionally answered the calls to identify the caller. She tracked all incoming calls on a log sheet, which the plaintiff used to sue callers or to make presuit demands.
The defendant in Stoops argued on cross-motions for summary judgment that the plaintiff had failed to establish that she suffered an injury in fact as a result of the TCPA violations. The court rejected the plaintiff’s argument that she suffered actual economic harm as a result of her purchase of telephone airtime minutes, citing the well-settled principle that a plaintiff cannot create standing by incurring expenses based on “hypothetical future harm.” The court also rejected the plaintiff’s contention that the calls invaded her privacy, particularly because she, admittedly, invited the calls. Under the circumstances, the plaintiff failed to establish an injury in fact and therefore lacked standing to invoke the court’s subject matter jurisdiction.
Although the plaintiff’s failure to establish Article III standing could have ended the inquiry, the Stoops court went on to analyze prudential considerations. The court concluded that the plaintiff had properly asserted her own interests, as opposed to the interests of a third party. The court also concluded that the case did not purport to require the court to adjudicate generalized grievances, in contrast to other cases in which, for example “the plaintiffs sued to protest the Vietnam War and to challenge the legality of the Central Intelligence Agency.”
The Stoop court’s analysis of statutory standing provided an independent ground for dismissing the suit, however. The court applied the zone of interests test, which assumes that, in enacting legislation, Congress intends to limit private rights of action to those plaintiffs who suffer injuries that the statute was designed to prevent. The plaintiff in Stoops lacked statutory standing to pursue her TCPA claims to resolution because her interest in orchestrating such claims was far removed from the statute’s purpose.
The Stoops court referred to statutory standing as a prudential consideration, even though Justice Scalia took exception to that characterization in Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014). As Justice Scalia pointed out, the zone of interests test requires a federal court to use the rules of statutory interpretation to determine whether, under the circumstances of a particular case, the statute serves to provide the plaintiff with an avenue for relief. In distinguishing between statutory standing and prudential considerations, Justice Scalia acknowledged that the U.S. Supreme Court had previously analyzed the zone of interests in the context of prudential considerations. We can expect confusion on this point for years to come.
Although Stoops is convenient for illustrating the various considerations involved in the standing inquiry, the facts in that case are particularly egregious, readily distinguishing it from most others. The Spokeo decision presents harder questions. Despite Spokeo’s seemingly straightforward holding—that a bare procedural violation of a federal statute, apart from any concrete harm, is insufficient to constitute an injury in fact—the Spokeo decision has produced an explosion of litigation addressing whether it has changed the state of the law, and the circumstances under which a procedural violation of a statute might cause a plaintiff to suffer real harm.
In the final analysis, a litigator would be well advised to analyze standing from a historical perspective through the framework of modern cases.
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