Michael T. Morley (Barry University School of Law) has posted Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question on SSRN. Here is the abstract:
In Spokeo, Inc. v. Robins, the Supreme Court held that, to have a justiciable claim in federal court under a federal statute, a plaintiff must show that it suffered a “particularized” and “concrete” injury. Even when Congress creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over its claim.
Spokeo requires us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, simply by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government.
Even under current law, Spokeo will not eliminate quasi-Hohfeldian plaintiffs’ claims under federal statutes, but simply cause them to be litigated in state court instead. In individual cases, such claims can result in small amounts of statutory damages, accompanied by awards of attorneys fees that may be hundreds of times larger. In class actions, liability for minor, technical, and ultimately innocuous statutory violations can total tens or even hundreds of millions of dollars.
Courts should construe federal statutes creating private rights of action as implicitly limited to Hohfeldian plaintiffs, absent a clear statement in the statute’s text or legislative history to the contrary, for three reasons. First, the constitutional avoidance canon counsels in favor of such a restriction. A federal law creating a cause of action for anyone whose statutory rights are violated, including quasi-Hohfeldian plaintiffs, would have a substantial number of unconstitutional applications in federal court under Spokeo. Second, by enacting 28 U.S.C. § 1331, a sweeping structural grant of federal-question jurisdiction for federal district courts, Congress demonstrated its intent that they be able to exercise jurisdiction over federal claims. Other laws therefore should not be construed as authorizing federal claims that fall outside federal district courts’ jurisdiction. Finally, allowing quasi-Hohfeldian plaintiffs to enforce federal laws raises serious questions under the President’s Article II Take Care Power. Federal statutes therefore should not be interpreted as creating “non-federal” federal questions.