University of St. Thomas Law Journal

Public Rights vs. Private Rights: The Key to Correcting the Court’s Current Federal Standing Doctrine

T.J. Bowman*

A. Introduction

For a moment, imagine that Congress has passed a law that gives you a cause of action to bring suit in federal court. You file your suit, and the district court dismisses your case due to lack of standing. Seems crazy, right? You are holding your plane ticket, but the ticketing agent says, “Sorry, you may not enter.” This situation reflects a key principle of federal standing: Just because Congress gives you a federal cause of action, it does not necessarily mean that a federal court will open its doors to you to vindicate your claim. In general, I agree with this principle. Congress does not have plenary power to confer federal jurisdiction. However, after TransUnion LLC v. Ramirez, the Court denied standing to a class of plaintiffs because they lacked a concrete injury.1 In its opinion, the Court emphasized, “no concrete harm, no standing.”2 The “no concrete harm, no standing” doctrine (1) wrongly excludes a portion of cases where the plaintiff is asserting a violation of a private right from federal jurisdiction, (2) infringes on Congress’s limited power to create protectable rights, and (3) runs contrary to the common-law tradition. Therefore, the Court should correct its current “no concrete harm, no standing” doctrine by distinguishing between suits asserting private rights and suits asserting public rights.

B. Article III Standing Basics

To obtain Article III standing, three elements must be shown. First, the plaintiff must have suffered a concrete and particularized injury in fact.3 Such injury must be “actual or imminent, not conjectural or hypothetical.”4 Second, the injury must be traceable to the defendant’s action.5 Third, the injury must be redressable by a favorable judicial decision.6

In the seminal case of Lujan v. Defenders of Wildlife, wildlife conservation organizations sued the Secretary of the Interior under § 7(a)(2) of the Endangered Species Act of 1973 (“ESA”) to challenge a federal regulation that mandated consultation among federal agencies.7 In an opinion authored by Justice Scalia, the Court held that the plaintiffs lacked standing because they did not satisfy the “injury in fact” or redressability requirements.8

C. The TransUnion Case

In 2021, the Supreme Court struck a blow to plaintiffs seeking to bring their cases in federal court, despite Congress granting the plaintiffs a cause of action under the Fair Credit Reporting Act (“FCRA”). In general, the FCRA seeks to ensure “fair and accurate credit reporting” because inaccurate credit reporting undermines banking efficiency and public confidence in the banking system.9 The FCRA contains a citizen-suit provision that allows consumers to sue for damages for violations of the Act.10

 In TransUnion LLC v. Ramirez, the Court held in a five to four decision written by Justice Kavanaugh that 6,332 of 8,185 class members lacked Article III standing because those plaintiffs did not suffer a sufficiently concrete injury even though TransUnion allegedly violated the FCRA.11 In 2002, TransUnion created a product called OFAC Name Screen Alert, which ultimately led to a swath of law-abiding consumers being incorrectly labeled as a “‘potential match’ to a name on the OFAC list,” which consisted of “terrorists, drug traffickers, or other serious criminals.”12 A class of 8,185 consumers who were incorrectly labeled as a “potential match” sued TransUnion for damages.13 Of that class, 1,853 of the class members had their incorrect credit reports disseminated to third parties.14 The remaining 6,332 class members did not have their incorrect credit reports disseminated to third parties.15 After ruling that the group of 1,853 class members possessed Article III standing, the Court held that the group of 6,332 class members lacked Article III standing because those plaintiffs did not suffer a concrete injury since their credit reports had not been disseminated to third parties. I disagree.

D. What is Wrong with TransUnion?

Put simply, the Court in TransUnion went astray because the Court misapplied Spokeo, Inc. v. Robins, which also happens to be a wrongly decided case.16 In Spokeo, the Court held that a class of consumers could not satisfy the concreteness requirement in a damages suit by alleging a “bare procedural violation” of the FCRA when Spokeo’s website contained inaccurate information about its consumers.17 In other words, “Article III standing requires a concrete injury even in the context of a statutory violation.” The Court then remanded the case to determine if the alleged procedural violations constituted a “degree of risk sufficient to meet the concreteness requirement.”18

In TransUnion, the Court cited Spokeo to support three related propositions to conclude that there was no concrete injury. First, if there is no concrete harm, there is no standing even in the context of a statutory violation, but a “risk of real harm” may satisfy the concreteness requirement only in a case for injunctive relief.19 The injunctive relief qualification misunderstands Spokeo. Spokeo did not say that a risk of real harm can only be applied in an action for injunctive relief.20 In fact, as noted above, Spokeo even remanded the case to determine if the degree of risk was sufficient to satisfy concreteness on the damages claim.21 Second, both particularization and concreteness must be satisfied to constitute an injury in fact.22 In other words, particularization and concreteness are separate requirements that must be shown. Third and most importantly, the court must assess whether the plaintiff’s alleged “harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis of a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including . . . reputational harms.”23

Taken together, the three propositions identified above significantly limit Congress’s power to confer federal standing. For the reasons below, I submit that the Court has gone too far in limiting Congress’s power to confer federal standing. After Spokeo and TransUnion, what is left of Lujan, the seminal Article III standing case? In Lujan, the Court stated that Congress can make “legally cognizable injuries concrete, de facto injuries that were previously inadequate at law.”24 Justice Kennedy also acknowledged in his concurrence that “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.”25 While the court in both Spokeo and TransUnion acknowledged this statement, both courts reached conclusions that conflict with Lujan.

E. The Solution: Private Rights Versus Public Rights

To be clear, Congress’s power to confer Article III standing is not unlimited. A citizen-suit provision that circumvents Article III requirements is unconstitutional.26 Therefore, the correct way to sort through standing issues is to distinguish between private rights and public rights. This approach strikes the following balance: Let Congress create protectable rights without violating Article III’s “case or controversy” requirement. This approach was not only utilized by common-law courts, but it has also been endorsed by Justice Thomas in his separate opinions in Spokeo and TransUnion and has been addressed by other scholars.27

If a public right is being asserted, which involves a “duty owed broadly to the whole community,” Congress cannot authorize private plaintiffs to enforce public rights in their own name unless the plaintiff has suffered a “concrete, individual harm distinct from the general population.”28 Public rights are rights that belong to the public generally, and include “interests generally shared, such as those in the free navigation of waterways, passage on public highways, and general compliance with regulatory law.”29 If the plaintiff is seeking to vindicate a private right, which is a right belonging to individuals, such as property rights and contract rights, the plaintiff does not need to allege any actual harm beyond the invasion of that right.30 The invasion of the right is the injury. For instance, in a trespass action, the plaintiff does not need to show any harm beyond the invasion of the plaintiff’s private property right.31 That is, the allegation that the defendant entered the plaintiff’s land without permission is sufficient to establish an injury in fact.

Using this distinction, Lujan is correct because the wildlife conservationists were asserting a public right and did not make a showing that their harm differed from the harm suffered by the public.32 Unlike the FCRA citizen-suit provision in TransUnion, the ESA citizen-suit provision in Lujan did not “confer legal rights on private persons”; instead, “it simply authorize[ed] suit to vindicate rights of which must be found elsewhere.”33 To hold otherwise would also violate the separation of powers. In essence, the Endangered Species Act in Lujan “convert[ed] the undifferentiated public interest in executive officers’ compliance with the law into an ‘individual right’ vindicable in the courts” and therefore shifted the President’s power to “take Care that the Laws be faithfully executed” to the courts.34 Unlike Lujan,the Court in TransUnion wrongly decided that the plaintiffs lacked standing because the plaintiffs were seeking to vindicate a private right to have accurate credit reports.35 Just because their injury was less severe than the other 1,800 plaintiffs does not mean that they should be denied standing. The less severe injury should simply be reflected in lower damages, which courts deal with regularly in complex litigation.

F. Conclusion

The Court must revisit and correct its current “no concrete harm, no standing” doctrine because it narrows the gate into federal courts beyond what Article III demands. Right now, Congress may not protect any injury that does not have a “close historical or common-law analogue.”36 Not only does Article III not impose a “common-law analogue” requirement, but this requirement makes little sense for a simple reason: technological advances have undoubtedly changed the nature of harm that can be suffered by individuals.37 By drawing the line between private and public rights, Congress can exercise its fullest authority to create statutory standing without violating Article III’s “case or controversy” requirement. This distinction also more closely aligns with the Constitution’s separation-of-power concerns: Keep the courts out of political controversies involving abstract public rights, but allow them to adjudicate cases involving private plaintiffs who are seeking to enforce their private rights against defendants.38 The distinction also limits Congress’s power “to delegate [the Executive’s] law enforcement authority to private plaintiffs and the courts” and thus “preserves executive discretion.”39 While not all citizen-suit provisions are valid under the public-private rights approach, this approach is the most faithful to the common law tradition and gives Congress a limited power to create protectable rights for individuals without violating Article III’s “case or controversy” requirement. Accordingly, under the public-private rights approach, if you are holding the plane ticket that Congress gives you, the ticketing agent must let you on the plane.

* T.J. Bowman, J.D. Candidate, University of St. Thomas School of Law Class of 2024, Senior Editor of the St. Thomas Law Journal. I thank Professors Michael Stokes Paulsen and Stephen P. Lucke at the University of St. Thomas School of Law for their helpful comments on the first draft of this blog.

  1. 141 S. Ct. 2190, 2214 (2021). ↩︎
  2. Id. ↩︎
  3. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). ↩︎
  4. Id. (internal quotation marks omitted). ↩︎
  5. Id. ↩︎
  6. Id. at 561. ↩︎
  7. Id. at 558. ↩︎
  8. Id. at 562. ↩︎
  9. 15 U.S.C. § 1681(a). ↩︎
  10. § 1681n(a) (“Any person who willfully fails to comply with any requirement under this subchapter with respect to any consumer is liable to that consumer” for actual damages or statutory damages, punitive damages, and attorneys’ fees. (emphasis added)). ↩︎
  11. 141 S. Ct. at 2214. Interestingly, Justice Thomas defected from the conservative majority and wrote a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined. ↩︎
  12. Id. at 2201. The U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) keeps “a list of ‘specially designated nationals’ who threaten America’s national security.” Id. The purpose of the OFAC Name Screen Alert was to help prevent businesses from engaging with the people on the OFAC list. Id. The Name Screen system was shockingly simplistic. During the credit check, TransUnion’s Name Screen program would compare the consumers name with the OFAC list. “If the consumer’s first and last name matched the first and last name of an individual on OFAC’s list, then TransUnion would place an alert on the credit report indicating that the consumer’s name was a ‘potential match’ to a name on the OFAC list.” Id. Because the first and last names were the only data evaluated, the alert system “generated many false positives.” Id. ↩︎
  13. Id. at 2200. ↩︎
  14. Id. ↩︎
  15. Id. ↩︎
  16. 578 U.S. 330 (2016). While I disagree with the Spokeo Court’s decision to mandate courts to assess the relationship between the alleged harm and a common law analogue, I agree with Justice Thomas’s concurrence that “a remand [was] required because one claim in Robins’ complaint rests on a statutory provision that could arguably establish a private cause of action to vindicate a violation of a privately held right” as opposed to a publicly held right. Id. at 349. In other words, if the statute at issue in Spokeo created a private cause of action to vindicate a public right, then Robins would have to show a concrete injury distinct from the harm suffered by the public. Id. at 348–49. ↩︎
  17. Id. at 342. ↩︎
  18. Id. at 342–43. ↩︎
  19. TransUnion, 141 S. Ct. at 2210. ↩︎
  20. Spokeo, 578 U.S. at 341 (“This does not mean, however, that the risk of real harm cannot satisfy [the concreteness] requirement.”); see also TransUnion, 141 S. Ct. at 2222 (Thomas, J., dissenting) (emphasizing that the majority “ignores what Spokeo said: ‘[Our opinion] does not mean . . . that the risk of real harm cannot satisfy the requirement of concreteness.’” (quoting Spokeo, 578 U.S. at 341)). ↩︎
  21. Spokeo, 578 U.S. at 342–43. ↩︎
  22. Id. at 340. In dissent, Justice Ginsburg critiqued the Court for distinguishing between injuries that were “particularized” but not “concrete,” and vice versa. Id. at 352 (Ginsburg, J., dissenting) (“[T]ime and time again, our [past] decisions have coupled the words ‘concrete and particularized . . . [and] do not discuss the separate offices of the terms ‘concrete’ and ‘particularized.’”). ↩︎
  23. TransUnion, 141 S. Ct. at 2200. ↩︎
  24. Lujan, 504 U.S. at 578 (“Nothing in this [opinion] 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.’” (alteration in original) (citations omitted) (internal quotation marks omitted)). ↩︎
  25. Id. at 580 (Kennedy, J., concurring). ↩︎
  26. See John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1226 (1993) (“[T]he conclusion that Article III limits congressional power can hardly be regarded as remarkable.”). ↩︎
  27. See TransUnion, 141 S. Ct. at 2217 (Thomas, J., dissenting); Spokeo, 578 U.S. at 344 (Thomas, J., concurring); see also, e.g., Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004). ↩︎
  28. Spokeo, 578 U.S. at 346, 348 (Thomas, J. concurring) (Citing five cases, Justice Thomas emphasized that “[t]he Court has said time and time again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a ‘concrete’ injury particular to himself.”). ↩︎
  29. Woolhandler & Nelson, supra note 28 at 693. ↩︎
  30. TransUnion, 141 S. Ct. at 2219–20 (Thomas, J., dissenting). ↩︎
  31. Spokeo, 578 U.S. at 344 (Thomas, J., concurring). ↩︎
  32. See TransUnion, 141 S. Ct. at 2220 (Thomas, J., dissenting) (“A statute that creates a public right plus a citizen-suit cause of action is insufficient by itself to establish standing.”); see also, 3 William Blackstone, Commentaries *2 (“Private wrongs . . . . are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals.” Conversely, public rights “affect the whole community, considered as a community.”). ↩︎
  33. Roberts, supra note 27, at 1228. ↩︎
  34. Lujan, 504 U.S. at 577 (quoting U.S. Const. art. II, § 3). ↩︎
  35. See TransUnion, 141 S. Ct. at 2220 (Thomas, J., dissenting) (“A statute that creates a private right and a cause of action, however, does give [sic] plaintiffs an adequate interest in vindicating their private rights in federal court.”) ↩︎
  36. Id. at 2204 (majority opinion). ↩︎
  37. Lujan, 504 U.S. at 578 (Kennedy, J., concurring) (warning that “[a]s government programs and policies become more complex and farreaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission . . .” (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)); TransUnion, 141 S. Ct. at 2221 (Thomas, J., dissenting) (criticizing the majority for holding that “legislatures are constitutionally unable to offer the protection of the federal courts for anything other than money, bodily integrity, and anything else that this Court thinks look close enough to rights existing at common law”). ↩︎
  38. See Spokeo, 578 U.S. at 347 (Thomas, J., concurring) (“The separation-of-powers concerns underlying our public-rights decisions are not implicated when private individuals sue to redress violations of their own private rights. But, when they are implicated, standing doctrine keeps courts out of political disputes by denying private litigants the right to test the abstract legality of government actions.”). ↩︎
  39. Id. ↩︎

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