This week, the respondent in Spokeo v. Robins filed his merits brief. The main thrust of the brief challenges Spokeo’s assertion that Robins lacks standing without “real-world” injury. Instead Robins argues that he meets the Constitution’s “Case and Controversy” requirement on one of several bases to vindicate his statutory rights under the Fair Credit Reporting Act (FCRA).

First, Robins argues the invasion of his legal rights as granted by Congress is sufficient to be enforced in the courts. Robins argues the violation of his statutory rights under FCRA by the dissemination of inaccurate reports is an injury, and the remedy exists in his monetary reward. Essentially, ubi jus ibi remedium – “where there is a right there is a remedy.” Notably, the brief mentions that “Congress met its Article III obligation…” (p.11), yet in a sense, the entire case is a question of whether Article III can be satisfied by Congress or must be satisfied by the courts.

Second, if “real-world” injury is required, Robins claims to have such a consequential harm – “Wallet Injury” – a legal dispute over money. Similar to breach of contract, Robins is pursuing a monetary claim derived from the violation of his rights at the time Spokeo disseminated the inaccurate reports. Robins states that the central question here is “whether a plaintiff personally would benefit in a tangible way from the court’s intervention.” (p.36). While of course that would likely be true, the question does not account for the structural constitutional reasons for foreclosing some remedies to the courts in the first place, and leaving it for executive action.

Third, Robins provides an analog for his claim in common law defamation. While FCRA provides a statutory remedy, Robins urges the Court to view the standing question broadly to protect a private interest. Indeed Robins views FCRA’s statutory damages as a response to the difficulties in otherwise identifying and measuring defamatory-like harms. In essence this is a policy argument to the Court for expansive standing, beyond the relevant statute.

Robins also counters Spokeo’s argument that to provide standing would violate separation-of-powers by circumventing executive branch enforcement prerogatives in an attempt to also gain a judicial remedy. Robins asserts to the contrary that the separation-of-powers problem occurs if the Court denies Congress’ intent to provide a remedy for the violation of statutory rights. As Article III is a bulwark to limit judicial intervention which may run counter to executive action, or executive non-action, Congress’s supposed intentions should not be the primary consideration.

An expected slew of amicus briefs in support of the Respondent will be filed by September 8.