For the second time in four years, the U.S. Supreme Court passed up an opportunity to decide what constitutes the concrete injury needed for standing when Congress authorizes individuals to sue for statutory damages for violation of a federal statute. In Spokeo, Inc. v. Robins, 136 S. Ct. ____, a 6-2 decision on May 16, 2016, the Court ruled that the Court of Appeals for the Ninth Circuit erred when it considered only the particularity, but not the concreteness, prong of the injury-in-fact requirement for standing to sue in federal court under Article III of the Constitution and remanded the case. On remand, the Ninth Circuit must consider whether Mr. Robins alleged a concrete injury. But Spokeo moves the debate from whether concrete harm is required to how strong a showing of concrete harm must be made.

The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., imposes a host of requirements on consumer reporting agencies, and makes agencies that willfully fail to comply liable to the consumer for either actual damages or statutory damages of $100 to $1,000 per violation, plus costs and attorney’s fees. Id. § 1681n(a). Spokeo, allegedly inaccurately, reported that Mr. Robins is married, has children, is in his 50’s, has a job in a professional or technical field, holds a graduate degree, and is in the top 10% “wealth level.” In fact, he claimed to be out of work and seeking employment, and was concerned that the incorrect information Spokeo reported might harm his chances of landing a job by making him seem overqualified and less mobile because of family responsibilities. So he sued Spokeo.

The district court dismissed his complaint for lack of standing because he did not plead an injury in fact, which is needed to allege a case or controversy within a federal court’s jurisdiction under Article III. The Ninth Circuit reversed.

Relying on Circuit precedent, the [Ninth Circuit] began by stating that the violation of a statutory right is usually a sufficient injury to confer standing. The court recognized that the Constitution limits the power of Congress to confer standing. But the court held that those limits were honored in this case because Robins alleged that Spokeo violated his statutory rights, not just the statutory rights of other people, and because his personal interests in the handling of his credit information are individualized rather than collective. The [Ninth Circuit] thus concluded that Robbins alleged violations of his statutory rights were sufficient to satisfy the injury-in-fact requirement of Article III.

Spokeo, slip op. at 5 (citations and quotations omitted).

Justice Alito’s majority opinion concluded that the Ninth Circuit considered the “particularized,” but not the “concreteness,” element of the “concrete and particularized” invasion of the legally protected interest Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1962), requires to make out the injury in fact needed for Article III standing, and remanded the case to the Ninth Circuit to consider concreteness. The allegations that Mr. Robins’ own information was erroneous, and that his personal interests in the handling of his credit information are individualized rather than collective, satisfied the particularity requirement.

But according to the majority, the Ninth Circuit’s analysis of these allegations did not consider whether he allegedly suffered a “concrete, de facto” injury, i.e., one that “actually exists” because it has already occurred or presents a “material risk” that it may occur. Spokeo, slip op. at 2, 10, 11. In Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013), the Supreme Court described a Constitutionally sufficient risk of future injury as “certainly impending” injury. In Spokeo, the majority could not tell whether the allegedly erroneous information caused Mr. Robins concrete injury. Justice Alito gave an inaccurate zip code as an example of misinformation that “may result in no harm”. That would violate the statute’s requirement that only accurate information be disclosed, but “[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” Spokeo, slip op. at 11.

Remanding the case leaves unresolved the boundaries of concrete injury when Congress enacts statutes creating consumer rights (like the Telephone Consumer Protection Act’s prohibition on unauthorized automated cell phone calls, or the Real Estate Settlement Procedures Act’s prohibition on undisclosed real estate settlement charges) and authorizes individuals to sue for statutory rather than actual damages when the statute is violated. This question divides the Circuits.

But the principles the Court laid down in Spokeo require more than just a violation. “Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm.” Id., slip op. at 10. “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Id. at 7 (quotation omitted). Instead, concrete harm is required—harm that must “actually exist,” id., slip op. at 8, or at least pose a “material risk” of actual injury—in Clapper’s parlance, be “certainly impending.” Whether the allegedly inaccurate information on Spokeo’s report actually harmed Mr. Robbins’ job prospects or caused him some other actual injury remains to be seen, but the majority opinion forecloses the Ninth Circuit from allowing the case to go ahead without finding that he alleged actual injury.

The dissent, by Justice Ginsburg joined only by Justice Sotomayor, accepts the majority’s proposition that Article III requires concrete injury, but thinks Mr. Robins alleged it by complaining “of misinformation about his education, family situation, and economic status … that could affect his fortune in the job market.” Id., slip op. at 5 (Ginsburg, J., dissenting). Justice Ginsberg points to Mr. Robins’ allegation that because of the misinformation, he encountered “actual harm to [his] employment prospects” as sufficiently concrete to satisfy Article III. Id. at 2, 6.

In June 2012, on the last day of the term, the Supreme Court relinquished the opportunity to decide how far Congress can go in authorizing damages for violation of a consumer statute in the absence of concrete harm when it dismissed review without ruling on a case on which it had heard oral argument. Edwards v. First Am. Corp., 610 F.3d. 514 (9th Cir. 2010), cert. dismissed as improvidently granted sub nom. First Am. Fin. Corp. v. Edwards, 132 S. Ct. 2536 (2012). After Spokeo, the question is no longer whether concrete harm is required but how strong a showing that the violation “could” cause injury is needed.