Does the Law of Standing "Need a Rewrite" After TransUnion?

Another federal appellate judge expresses discontent with current standing doctrine.

Add the Honorable Paul Matey to the list of federal appellate judges to have raised concerns about the content and direction of the Supreme Court's standing jurisprudence. In a recent concurrence, in Barclift v. Keystone Credit Services, Judge Matey raised concerns about how current doctrine directs courts to identify what qualifies as an "injury-in-fact" for the purposes of Article III and, in the process (and quoting Justice Elena Kagan), suggested that the whole law of standing "needs a rewrite."

At issue in Barclift was whether a consumer whose personal information was shared by a creditor with a third party, in violation of the Fair Debt Collection Practices Act, suffers an injury that is sufficiently "concrete" to satisfy the requirements of Article III. Judge Arianna Freeman, joined by Judge Julio Fuentes, concluded that such an "injury," standing alone, is insufficient, even though it violates federal law. Judge Matey dissented, arguing that (at least under the Supreme Court's decision in TransUnion v. Ramirez), Barclift's injury was sufficient.

Judge Matey's opinion concurring in part, dissenting in part, and concurring in the judgment begins:

"Standing" is a term found in every first-year law school outline, but absent from the text of the Constitution, Foundingera discussions, English and Roman history, and the reported decisions of our federal courts throughout most of the twentieth century. Ever shifting, the judicially created standard of modern standing confuses courts, commentators, and plaintiffs like Paulette Barclift who are told their claim is insufficiently "concrete" to decide. Barclift says Keystone Credit Services shared private information about her physical and financial health with "an untold number of individuals" at a mailing facility close to her home. App. 62. Can she file a lawsuit for her alleged harms? Congress said yes, inserting a private right of action in the Fair Debt Collection Practices Act (FDCPA). And the Supreme Court has explained that the "disclosure of private information" has been "traditionally recognized as providing a basis for lawsuits in American courts." TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). I conclude that Barclift's "intangible harms" are sufficiently "concrete" for standing because they bear "a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts." Id.

But Barclift loses because the majority treats TransUnion's footnote six as talismanic, turning dictum into precedent and, along the way, adopting the jot-for-jot reading of caselaw that the majority's opinion purports to reject. Respectfully, I cannot pour that much meaning into a note, particularly where the result only adds to the incoherence of modern standing. So I dissent in part and in the judgment because, while standing "needs a rewrite," as the requirement stands, Paulette Barclift is due her day in court. Id. at 461 (Kagan, J., dissenting).

While applying TransUnion, Judge Matey does not spare it from criticism. He writes:

That decision [TransUnion] marked the first time the Supreme Court required a private individual to make some threshold showing of concrete harm, even though he was seeking to vindicate a private right. See 594 U.S. at 453–54 (Thomas, J., dissenting) ("Never before has this Court declared that legal injury is inherently insufficient to support standing.") . . . . And the yardstick chosen to measure concreteness—the close-relationship test—swapped the text and history of Article III for unspecified and undetermined markers in American "history and tradition." TransUnion, 594 U.S. at 424 (majority opinion). A plaintiff's allegations need not "exact[ly] duplicate" the elements of a common law cause of action, only resemble the "harm[s] associated with" those causes of action. Id. at 432–33.

This illustrates a judicial test "displac[ing] . . . controlling, nonjudicial, primary texts." OI Eur. Grp. B.V. v. Bolivarian Republic of Venez., 73 F.4th 157, 175 n.22 (3d Cir. 2023) (citation omitted). . . . Leaving us to work with only a "metaphor for the law" instead of the law itself. Mitchel de S.-O.-l'E. Lasser, "Lit. Theory" Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse, 111 Harv. L. Rev. 689, 768 (1998)).

But work with the shadow we must, for "unless we wish anarchy to prevail within the federal judicial system," precedent must be followed "by the lower federal courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam). So I move to the best reading of TransUnion.

Judge Matey is far from the only federal appellate judge to express concerns about standing in recent years. TransUnion, in particular does not appear to be too popular among many judges.

Most prominently, Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit has called out the problems with existing standing jurisprudence and its application. In several recent concurring opinions Judge Newsom has expressed the concern that current standing doctrine is incoherent, difficult to apply, and insufficiently grounded in constitutional text.  (He addressed this issue, among other things, in  his Sumner Canary lecture at CWRU.)

Judge Newsom has not only criticized existing doctrine. He has also suggested an alternative: Ditching the requirement of "injury-in-fact" while simultaneously (re)invigorating Article II limitations on private party standing to enforce federal law.  It is an interesting and provocative proposal that is receiving attention. For those interested, I analyze and evaluate Judge Newsom's proposal for "standing without injury" in a forthcoming Wake Forest Law Review article.

One thing that is particularly interesting about the judicial critiques of modern standing doctrine is that so many of them come from conservative judges. Modern standing law, particularly as grounded in Justice Scalia's Lujan opinion, has been generally viewed as a conservative jurisprudential project. Yet, as illustrated by Justice Thomas's dissent in TransUnion, conservative justices and judges are no less likely than their liberal colleagues to raise questions about the way current doctrine is applied if not also the extent to which that doctrine has a proper textual home in Article III. Whether or not concerns about existing standing law produces a realignment, as suggested by Richard Re, it is quite likely that we will see significant developments in standing law in the next few Supreme Court terms.