<em>Spokeo</em> and National Security/Foreign Relations Law – Especially <em>Zivotofsky</em>

The Supreme Court recently granted certiorari in Spokeo v. Robins, a Fair Credit Reporting Act case which might appear to have little connection to national security and foreign relations law. But the case is about standing, in particular Congress’s power to confer standing on private parties who do not suffer an injury-in-fact but have been deprived of the legal rights created by the statute. Standing is a recurring issue in foreign relations cases; Bond was ordered dismissed by the Third Circuit for lack of standing to raise the 10th Amendment issue, but was reversed by the Supreme Court; Zivotofksy was initially dismissed by the district court for lace of standing, but was reversed by the D.C. Circuit; and of course the Supreme Court held in Clapper v. Amnesty International that the plaintiffs lacked standing to challenge as unconstitutional the government’s mass electronic surveillance under section 702 of the Foreign Intelligence Surveillance Act. In Spokeo itself, the plaintiff alleged that Spokeo falsely reported that he had more education and experience than was true. His amended Complaint alleged that the false information harmed his “employment prospects,” which the district court held failed to satisfy Article III’s injury-in-fact requirement because it did not allege actual or imminent harm. The Ninth Circuit reversed, holding that actual harm was unnecessary because Article III was satisfied by the violation of the statutory right itself, even if plaintiff suffered no other injury. The same issue arose in Zivotofsky. The district court dismissed for lacking of standing (and based on the political question doctrine) because Menachem Zivotofsky alleged only a conjectural harm, not an actual or imminent injury, from having Jersualem listed as his place of birth on his passport in violation of the statute. Like the Ninth Circuit opinion in Spokeo, The D.C. Circuit reasoned in Zivotofsky that the invasion of the statutory right itself creates standing, even when the plaintiff would otherwise have suffered no judicially cognizable injury. And although Lujan v. Defenders of Wildlife held that Congress cannot create standing for private plaintiffs who suffer only a generalized injury, that limitation applied in neither Zivotofsky nor Spokeo, because in both cases the plaintiffs alleged a particularized injury. However, the reasoning in these cases arguably runs afoul of the Court’s language in Raines v. Byrd. The Court is, of course, expected to issue its opinion in Zivotofsky II any day now---the case was argued back in November. As standing is one component of subject matter jurisdiction, the Court must raise it whether or not the parties have, and one amicus brief in Zivotofsky II does in any event raise the standing issue. It will be interesting to see whether any Justices discuss standing, which was not raised at oral argument in Zivotofsky II. In the first Zivotofsky opinion, which addressed the political question doctrine (a doctrine with a close relationship to standing), Justice Breyer (writing in dissent), characterized the injury suffered by Menachem Zivotofsky as “ideological” and best addressed by the political branches not the courts. It would be disappointing for the Court to hold for Zivotofsky but then reverse in Spokeo based on reasoning that suggests Zivotofsky also lacked standing. Beyond Zivotofsky, the Court’s opinion in Spokeo will likely have important implications for Congress’s ability to create standing in foreign relations and national security cases more generally. For example, Congress could seek to reverse Clapper by amending the cause of action created by FISA to more clearly confer standing on private parties, an issue addressed by Steve Vladeck, but it is unclear whether such an attempt would be constitutional. Spokeo promises to be an important separation of power case, with implications well beyond the consumer protection context.