Thoughts on Zivotofsky, Part Two: Whither Article III standing?

Why did Menachem Zivotofsky have Article III standing to sue?  Will Baude raised that question a few weeks ago in the New York Times.  In recent years the Court has insisted that a plaintiff cannot sue in federal court unless, at a minimum, he has suffered an “injury in fact” as a result of the defendant’s conduct.  What is Zivotofsky’s injury if the Place of Birth line on his passport reads “Jerusalem” rather than “Israel”?  One obvious response to this question is that he has been denied a right that Congress conferred upon him:  The statute insists that the Secretary of State use the designation “Israel” when a citizen such as Zivotofsky so insists; the Secretary refused to follow that statutory dictate; ergo, Zivotofsky has been denied his statutory right—a right to have the government describe his place of birth in one way rather than another on the government’s own document, the passport.

The only catch with this argument is that several current Justices—led by Justice Scalia—have in recent decades suggested that there are significant limits to Congress’s power to create Article III injury-in-fact by establishing statutory rights.  Relying upon those suggestions, the Bush Administration actually argued, early in the Zivotofsky proceedings, that Menachem Zivotofsky lacked article III standing to sue.  Nine years ago, however, the U.S. Court of Appeals for the D.C. Circuit rejected that argument in an opinion written by Judge Randolph.  (Judge Randolph’s analysis, with which I largely agree, is set out in a footnote below.*)  In the more recent stages of the Zivotofsky litigation, the Obama Administration abandoned the Article III argument, presumably because the Executive now concurs in Judge Randolph’s reasoning (as reflected in this recent brief of the Solicitor General).

Just a few weeks ago, the Court granted certiorari in a case, Spokeo, Inc. v. Robins, that specifically raises the question of whether and under what circumstances Congress can create injury-in-fact by enacting statutory rules about how particular individuals must be treated.  That is to say, Spokeo presents virtually the same injury-in-fact issue that Zivotofsky appeared to raise.  [If you’re the sort of reader who’s interested in getting into the weeds of Spokeo, see my conversation with Will and Richard Re in the comments section here—in which I argue that, in fact, Zivotofsky was a much starker, much cleaner, vehicle for the Court to address the Article III question than Spokeo will prove to be!]

To be sure, the parties in Zivotofsky did not brief the Article III question in the Supreme Court; nor was it one of the questions the Court agreed to consider in that case.  As Will pointed out, however, that doesn’t mean that the Court could simply avoid the issue in Zivotofsky:  Because injury-in-fact is a essential component of the federal courts’ constitutional jurisdiction to entertain the suit, the Court was (at least in theory) required to make sure there was Article III standing even if the parties didn’t address it.  For this very reason, Will argued that “[n]ow that the court has put this big [statutory injury-in-fact] question on its calendar for next year via Spokeo, it should postpone its decision in the Zivotofsky case as well.”

Of course, the Court did not postpone its decision on the merits in Zivotofsky, even after it had granted the petition in Spokeo.  Yet none of the opinions in the case so much as mentions the Article III argument.  What are we (or the Court) to make of this silence when it comes to deciding Spokeo and similar article III standing cases?  From all that appears, Zivotofsky now arguably stands as an important precedent for Congress’s power to confer standing by establishing substantive statutory rights upon individuals.  As Justice Scalia correctly put the point in his dissenting opinion, “Menachem Zivotofsky’s parents seek enforcement of this statutory right in the issuance of their son’s passport and consular report of birth abroad” (emphasis added).  The Court has now implicitly concluded that the defendant’s failure to provide such a “statutory right” is sufficient to establish Article III injury-in-fact.  (For those who follow such things, it is worth stressing that neither Zivotofsky nor Spokeo is a case (such as Lujan) in which Congress merely created a cause of action for persons to challenge government action that is not directed at those persons.  (See Steve Vladeck’s post in April for more on this distinction.)  Nor is either case one in which Congress has merely conferred upon all members of the public what the Court (in Summers) has called a “procedural right in vacuo” (there, the right to comment on an agency regulation in the rulemaking process).  Rather, in both cases Congress has imposed a substantive statutory obligation on one party—in Spokeo, upon consumer reporting agencies; in Zivotofsky, upon the Secretary of State—to treat information about particular other parties (namely, the plaintiffs) in a specified way.)

To be sure, the Justices themselves will not feel technically bound by Zivotofsky’s “resolution” of the standing question.  The Court has often said that “drive-by” jurisdictional rulings are not entitled to full precedential weight, and this one was, at best, an implicit “drive-by” ruling on article III.  Even so, Zivotofsky puts the Court in something of a pickle when it comes to Spokeo.  After all, the issue was raised and decided earlier in the case; it was flagged in at least eight briefs of the parties in various iterations of the case before the Supreme Court, from November 2010 to September 2014 (as well as in Will Baude’s column); and one amicus brief was devoted to the argument that Zivotofsky lacked standing.  Moreover, the Court supposedly was required to assure itself of its jurisdiction to reach the merits.

Thus, even if some Justices were inclined to conclude, next Term, that the plaintiff in Spokeo did not suffer any injury-in-fact, I strongly doubt that a majority of the Court would go on to say:  “And this also means Zivotofsky didn’t have standing, either, and so we did not have jurisdiction to reach the merits in that case. Oops.”  Instead, the Court would almost certainly feel compelled to distinguish Zivotofsky on some ground—but it is not at all obvious what that distinction might be.

Did Zivotofsky suffer some other sort of injury that the plaintiff in Spokeo did not—apart from the violation of his statutory right?  In his dissenting opinion, Justice Scalia noted that Zivotofsky’s parents “regard their son’s birthplace as a part of Israel and insist as ‘a matter of conscience’ that his Israeli nativity ‘not be erased’ from his identity documents.”  I would be surprised, however, if Justice Scalia invoked this “matter on conscience” as a basis for distinguishing Zivotofsky from Spokeo.  For one thing, it was the parents’ “conscience” at issue in Zivotofsky, not their son’s—and he was the plaintiff. More fundamentally, I can’t imagine Justice Scalia writing that a plaintiff can create injury-in-fact merely by asserting that a particular government action injures his “conscience.”  (As I suggest in my discussion with Will Baude and Richard Re, Spokeo might also present a distinct question about the “causation” prong of the article III standing inquiry that was not present in Zivotofsky.  At least thus far, however, Spokeo has not been litigated on that theory.)

Therefore it’ll be interesting to see what, if anything, the Court does with Zivotofsky and article III next Term.  Might it turn out to be a precedent for why the plaintiff in Spokeo did suffer constitutional injury-in-fact?  It’s obviously too soon to tell.  But one thing is fairly certain:  Zivotofksy will likely be a subject of special interest, and possible emphasis, in the briefing of Spokeo.

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* Excerpt from Judge Randolph’s decision on article III standing for the CTADC in Zivotofsky:

As to Menachem’s standing to bring this action, the government argues that he cannot satisfy the injury-in-fact requirement derived from Article III of the Constitution.  See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).  He is now only three years old.  The claim that someday, when he is older, he might suffer psychological harm from the Secretary’s passport decision is, the government argues, purely conjectural and in any event not an imminent injury, as the law requires.  However that may be, we think he has suffered another sort of injury in fact and therefore has standing.

The Supreme Court has recognized that “Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.”  Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973).  Or stated differently, “Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute.”  Warth v. Seldin, 422 U.S. 490, 514 (1975); see Lujan, 504 U.S. at 578.

A common example of such a statute is the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.  Anyone whose request for specific information has been denied has standing to bring an action; the requester’s circumstances—why he wants the information, what he plans to do with it, what harm he suffered from the failure to disclose—are irrelevant to his standing.  See, e.g., Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989).  The requester is injured-in-fact for standing purposes because he did not get what the statute entitled him to receive.  See FEC v. Akins, 524 U.S. 11, 23–25 (1998); id. at 30–31 (Scalia, J., dissenting); Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. at 449; . . . .  The same injury can give a plaintiff standing to enforce the Government in the Sunshine Act, 5 U.S.C. § 552b, . . . and the Federal Advisory Committee Act, 5 U.S.C. app. 2 §§ 1–16, see Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. at 449.  Other Supreme Court statutory standing cases are similar.  The “Supreme Court has expressly ruled that persons seeking to vindicate a statutory right to information have standing even if they know or should know that the untruthful information they receive is false, see Havens Realty [Corp. v. Coleman, 455 U.S. 363, 374 (1982)], and even if the information is available to them through other channels, see [Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 n. 15 (1976) ].”  Pub. Citizen v. FTC, 869 F.2d 1541, 1548 n. 13 (D.C.Cir.1989).

The Supreme Court has qualified statutory standing in one respect.  In Lujan the Court held that the citizen-suit provision of the Endangered Species Act of 1973 § 11(g), 16 U.S.C. § 1540(g), could not bestow standing on plaintiffs who claimed no “particularized” injury, but only a generalized interest shared by all citizens in the proper administration of the law. 504 U.S. at 573–74; see also Sierra Club v. Morton, 405 U.S. 727, 738 (1972) (“[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.”). By “particularized” the Court meant “that the injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1.  While a person would have standing to vindicate his “individual right” created by statute, “the public interest in the proper administration of the laws … [cannot] be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue.”  Id. at 576–77.  Otherwise, the federal courts would intrude upon the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. CONST. art. II, § 3, in violation of the separation of powers. Lujan, 504 U.S. at 577. [FN: This case would be like Lujan if someone born in the United States with no connection to anyone born in Jerusalem sued the State Department claiming that it was violating § 214(d) by not complying with requests of U.S. citizens born in Jerusalem to put “Israel” on their passports.]

Menachem’s case presents no such problem.  When a plaintiff is the “object of [government] action (or forgone action) …. there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.”  Id. at 561–62.  Although it is natural to think of an injury in terms of some economic, physical, or psychological damage, a concrete and particular injury for standing purposes can also consist of the violation of an individual right conferred on a person by statute.  Such an injury is concrete because it is of “a form traditionally capable of judicial resolution,” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220–21 (1974), and it is particular because, as the violation of an individual right, it “affect[s] the plaintiff in a personal and individual way,” Lujan, 504 U.S. at 560 n. 1.

The injuries in the FOIA cases mentioned above are of this sort.  See Sargeant v. Dixon, 130 F.3d 1067, 1070 (D.C.Cir.1997) (“The receipt of information is a tangible benefit the denial of which constitutes an injury.”).  And so is Menachem’s.  See Allen v. Wright, 468 U.S. 737, 751–52 (1984) (“In many cases the standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing cases.”). His allegation that Congress conferred on him an individual right to have “Israel” listed as his place of birth on his passport and on his Consular Birth Report is at the least a colorable reading of the statute.  He also alleges that the Secretary of State violated that individual right.  This is sufficient for Article III standing.  See Reservists Comm. to Stop the War, 418 U.S. at 224 n. 14.  Menachem’s injury is not “too abstract,” the connection between the allegedly illegal conduct and the injury is not “too attenuated,” and the prospect of his obtaining relief from a favorable ruling is not “too speculative.” Allen, 468 U.S. at 752.  Under Article III of the Constitution, the “imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions.”  U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 403 (1980).  Menachem’s suit satisfies each element and he therefore has standing to sue.

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).