ArtIII.S2.C1.6.4.3 Particularized Injury

Article III, Section 2, Clause 1:

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.

In addition to showing that he suffers a material risk of harm from an actual, concrete injury, the litigant must demonstrate that the injury is “particularized” —or, in other words, that it affects him in a “personal and individual way.” 1 The “particularized injury” requirement has long served as a component of the Supreme Court’s standing analysis,2 barring plaintiffs from seeking judicial redress for generalized grievances undifferentiated from those that a large number of people could claim.3 Nonetheless, the Court has generally been careful to distinguish “generalized grievances” that fail the particularity requirement from widespread injuries, such as mass torts, that are suffered by a large number of people but qualify as particularized because each person has sustained an individualized harm that is distinct from that suffered by the others.4 In this vein, the Court has held that a litigant’s failure to obtain information that federal law requires to be disclosed can constitute a sufficiently particularized injury of a procedural statutory right for Article III standing purposes, even if many individuals may suffer such an injury.5

However, even if a citizen has suffered a “particularized” injury of a statutory right, he must still demonstrate that such an injury is “concrete.” The Supreme Court distinguished between the concepts of “concrete” and “particularized” injury in its 2016 decision in Spokeo, Inc. v. Robins.6 In Spokeo, the plaintiff, Thomas Robins, sued Spokeo, Inc., a company that operated a “people search engine,” for alleged violations of the Fair Credit Reporting Act of 1970 (FCRA).7 The FCRA is a consumer protection statute that was enacted to ensure fairness, accuracy, and privacy in consumer credit reporting by imposing a number of requirements on consumer reporting agencies.8 The plaintiff sought to pursue a class action lawsuit alleging that Spokeo had willfully reported incorrect information about him and other class members in search results on its website.9

The court of appeals had held that Spokeo had inflicted a concrete (albeit, intangible) Article III injury on Robins because they violated his statutory rights, causing him individualized injury and entitling him to statutory damages.10 The Supreme Court reversed, holding that Spokeo’s alleged procedural violations of the FCRA, even if they affected the plaintiff individually and were therefore “particularized,” might not amount to “concrete” injuries, because “not all inaccuracies cause harm or present any material risk of harm.” 11 Therefore, the Court remanded the case to the Ninth Circuit to decide whether such a risk could result from the defendant’s purported procedural violations of the FCRA.12 The Court’s decision in Spokeo indicates that a defendant’s actions, even if contrary to a procedural duty established by a federal statute providing a damages remedy and sufficient for a “particularized” injury, might not amount to a concrete injury sufficient for Article III standing if such injuries do not actually present a material risk of harm to the litigant.13 Federal courts will judge whether the defendant’s alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes by considering whether the injury is similar to a harm that “has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” 14 But in doing so, courts must give at least some weight to Congress’ judgments about which intangible harms amount to concrete Article III injuries.15

In addition, the extent to which widespread environmental harms may constitute particularized injuries is an emerging issue in the Court’s standing jurisprudence.16 In a 2007 case in which the State of Massachusetts alleged particularized injury from climate change, the Court determined that the widely shared risks posed by rising sea levels constituted an individualized injury to the state in its capacity as owner of coastal property.17 However, in that case, the Court did not address whether allegations of widespread harm from climate change would constitute particularized injury in a case brought by an individual plaintiff rather than a state.

Footnotes
1
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992). back
2
See ArtIII.S2.C1.6.4.3 Particularized Injury. back
3
Lujan, 504 U.S. at 573–74 ( “We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” ); accord Gill v. Whitford, No. 16-1161, slip op. at 21 (U.S. June 18, 2018) (holding that voters who, at trial, alleged statewide injury to Wisconsin Democrats as a result of vote dilution from the state legislature’s partisan gerrymandering lacked standing to challenge the constitutionality of that practice because they did not demonstrate individual and personal injury to their interests as voters in a particular district). But see United States v. Hays, 515 U.S. 737, 744 (1995) (noting that “[d]emonstrating the individualized harm our standing doctrine requires may not be easy in the racial gerrymandering context, as it will frequently be difficult to discern why a particular citizen was put in one district or another” but concluding that where a plaintiff resides in a “gerrymandered district, however, the plaintiff has been denied equal treatment because of the legislature’s reliance on racial criteria, and therefore has standing to challenge the legislature’s action” ). back
4
Spokeo, Inc. v. Robins, 578 U.S. 330, 340 n.7 (2016). back
5
FEC v. Akins, 524 U.S. 11, 21 (1998). back
6
578 U.S. at 334. back
7
Id. at 334–36. back
8
Fair Credit Reporting Act §§ 607, 616, 15 U.S.C. §§ 1681e, 1681n. back
9
Spokeo, 578 U.S. at 334–36. The plaintiff had alleged that Spokeo had reported incorrect information concerning, among other things, his marital status and occupation, and thereby committed a technical violation of the FCRA that could damage his career prospects when he sought employment in the future. Id. back
10
Id. at 11. back
11
Id. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992). back
12
Spokeo, 578 U.S. at 343. back
13
Id. For further discussion of Spokeo and its limits on Congress’ ability to create new private rights of action, see ArtIII.S2.C1.6.4.3 Particularized Injury. See also TransUnion LLC v. Ramirez, No. 20-297, slip op. at 2 (U.S. June 25, 2021) (holding that certain members of a class action lawsuit against a credit reporting agency brought under the Fair Credit Reporting Act had not suffered a concrete injury because misleading information in their credit files had not been provided to third parties); Thole v. U.S. Bank N.A., No. 17-1712 slip op. at 2, 5–6 (U.S. June 1, 2020) (holding that participants in a defined-benefit plan lacked a concrete stake in a lawsuit seeking monetary and injunctive relief to remedy alleged mismanagement of the plan where the plaintiffs’ monthly payments were fixed and not tied to plan performance). back
14
Spokeo, 578 U.S. at 341. back
15
Id. at 11. back
16
Massachusetts v. EPA, 549 U.S. 497, 522 (2007) ( “That these climate-change risks are ‘widely shared’ does not minimize Massachusetts’ interest in the outcome of this litigation.” ). back
17
Id. at 522–23. back