FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ROBINS, individually and No. 11-56843
on behalf of all others similarly
situated, D.C. No.
Plaintiff-Appellant, 2:10-cv-05306-
ODW-AGR
v.
SPOKEO, INC., a California OPINION
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted
November 6, 2013—Pasadena, California
Filed February 4, 2014
Before: Diarmuid F. O’Scannlain, Susan P. Graber,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
2 ROBINS V. SPOKEO, INC.
SUMMARY*
Standing / Fair Credit Reporting Act
The panel reversed the district court’s dismissal, based on
lack of Article III standing, of an action alleging willful
violations of the Fair Credit Reporting Act.
The panel held that the individual plaintiff had Article III
standing to sue a website’s operator under the Fair Credit
Reporting Act for publishing inaccurate personal information
about himself. The panel also held that law of the case did
not limit the district court in its final order, and it was free to
reconsider its own prior ruling on standing, where the district
court had neither been divested of jurisdiction nor submitted
this case to the jury.
COUNSEL
Steven Woodrow, Edelson LLC, Denver, Colorado, argued
the cause for the plaintiff-appellant. Bradley M. Baglien,
Edelson LLC, Chicago, Illinois, filed the briefs for the
plaintiff-appellant. With him on the briefs were Jay Edelson,
Edelson, LLC, Chicago, Illinois, and Rafey S. Balabanian,
Edelson LLC, Chicago, Illinois.
Donald M. Falk, Mayer Brown LLP, Palo Alto, California,
argued the cause for the defendant-appellee. John Nadolenco,
Mayer Brown LLC, Los Angeles, California, filed the brief
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROBINS V. SPOKEO, INC. 3
for defendant-appellee. With him on the brief was Barrett L.
Schreiner, Mayer Brown LLP, Los Angeles, California.
Meir Feder, Jones Day, New York, New York, filed the brief
on behalf of amicus curiae Experian Information Solutions,
Inc in support of the defendant-appellee.
A. James Chareq, Hudson Cook, LLP, Washington, D.C.,
filed the brief on behalf of amicus curiae Consumer Data
Industry Association in support of the defendant-appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether an individual has Article III
standing to sue a website’s operator under the Fair Credit
Reporting Act for publishing inaccurate personal information
about himself.
I
Spokeo, Inc. operates a website that provides users with
information about other individuals, including contact data,
marital status, age, occupation, economic health, and wealth
level. Thomas Robins sued Spokeo for willful violations of
the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et
seq., related to its website. Although he asserted that
Spokeo’s website contained false information about him,
Robins’s allegations of injury were sparse. Spokeo moved to
dismiss Robins’s original complaint for lack of subject-matter
jurisdiction on the ground that Robins lacked standing
sufficient under Article III of the United States Constitution.
4 ROBINS V. SPOKEO, INC.
On January 27, 2011, the district court ruled that Robins
had failed to allege an injury in fact because he had not
alleged “any actual or imminent harm.” The court
characterized Robins’s allegations as simply “that he has been
unsuccessful in seeking employment, and that he is concerned
that the inaccuracies in his report will affect his ability to
obtain credit, employment, insurance, and the like.” The
district court noted that “[a]llegations of possible future
injury do not satisfy the [standing] requirements of Art. III”
and dismissed the complaint without prejudice.
Robins thereafter filed his First Amended Complaint
(FAC). Similar to the original complaint, the FAC alleged
willful violations of the FCRA. For example, the website
allegedly described Robins as holding a graduate degree and
as wealthy, both of which are alleged to be untrue. Robins,
who is unemployed, described the misinformation as
“caus[ing] actual harm to [his] employment prospects.”
Remaining unemployed has cost Robins money as well as
caused “anxiety, stress, concern, and/or worry about his
diminished employment prospects.”
Again, Spokeo moved to dismiss for lack of subject-
matter jurisdiction on the ground that Robins lacked standing
under Article III. On May 11, the district court denied the
motion and concluded that Robins had alleged a sufficient
injury in fact, namely Spokeo’s “marketing of inaccurate
consumer reporting information about” Robins. The court
also ruled that the injury was traceable to Spokeo’s alleged
violations of the FCRA and that the injury was redressable
through a favorable court decision.
On September 19, after Spokeo moved to certify an
interlocutory appeal, the district court reconsidered its
ROBINS V. SPOKEO, INC. 5
previous ruling on standing. It then ruled, contrary to its May
11 order, that Robins failed to plead an injury in fact and that
any injuries pled were not traceable to Spokeo’s alleged
violations, dismissing the action. Robins timely appealed.
II
On appeal, Robins first argues that the law-of-the-case
doctrine prohibited the district court from revisiting its own
May 11 decision. In United States v. Smith, however, we
held that the law-of-the-case doctrine does not apply “to
circumstances where a district court seeks to reconsider an
order over which it has not been divested of jurisdiction.”
389 F.3d 944, 949 (9th Cir. 2004) (per curiam) (describing
the doctrine as “wholly inapposite”). In this case, the district
court was not divested of jurisdiction prior to its September
19 order.
Although United States v. Alexander held that the law-of-
the-case doctrine precluded a district court from
reconsidering an evidentiary issue after a mistrial, 106 F.3d
874, 876–77 (9th Cir. 1997), we distinguished Alexander in
Smith and do so again here. The rule from Alexander applies
only to cases in which a submission to the jury separates the
two decisions. See Smith, 389 F.3d at 949–50 (distinguishing
Alexander on the ground that the district court in that case
had reconsidered its decision only after submitting the case to
a jury).
Here, because the district court had neither been divested
of jurisdiction nor submitted this case to the jury, it was free
to reconsider its own prior ruling. The law-of-the-case
doctrine did not limit the district court.
6 ROBINS V. SPOKEO, INC.
III
Robins next argues that the FAC sufficiently alleges
Article III standing and that the May 11 ruling was correct.1
The FAC indeed alleges violations of various statutory
provisions. See 15 U.S.C. § 1681b(b)(1) (listing the
circumstances in which consumer reporting agencies (CRAs)
may provide “consumer reports for employment purposes”);
id. § 1681e(b) (requiring CRAs to “follow reasonable
procedures to assure maximum possible accuracy of”
consumer reports); id. § 1681e(d) (requiring CRAs to issue
notices to providers and users of information); id. § 1681j(a)
(requiring CRAs to post toll-free telephone numbers to allow
consumers to request consumer reports). Robins contends
that because these provisions are enforceable through a
private cause of action, see id. § 1681n, they create statutory
rights that he has standing to vindicate in court. See Warth v.
Seldin, 422 U.S. 490, 500 (1975) (“The actual or threatened
injury required by Art[icle] III may exist solely by virtue of
statutes creating legal rights, the invasion of which creates
standing.” (internal quotation marks omitted)).
The district court properly recognized that it would not
have subject-matter jurisdiction if Robins did not have
standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
1
Spokeo briefly responds that the FAC “pleads no facts from which an
inference of willfulness might be drawn.” We disagree. “[W]illful[]”
violations within the meaning of 15 U.S.C. § 1681n include violations in
“reckless disregard of statutory duty.” Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47, 57 (2007). The facts that Robins pled make it plausible that
Spokeo acted in reckless disregard of duties created by the FCRA. Robins
pled, among other things, that Spokeo knew about inaccuracies in its
reports and marketed its reports for purposes covered by the FCRA despite
disclaiming any such uses.
ROBINS V. SPOKEO, INC. 7
341–42 (2006). The district court also correctly identified the
three components of standing: (1) the plaintiff “has suffered
an ‘injury in fact’ that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical”;
(2) “the injury is fairly traceable to the challenged action of
the defendant”; and (3) “it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 180–81 (2000). Although more may be
required at later stages of the litigation, on a motion to
dismiss, “general factual allegations of injury resulting from
the defendant’s conduct may suffice.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
A
In standing cases that analyze statutory rights, our
precedent establishes two propositions. First, Congress’s
creation of a private cause of action to enforce a statutory
provision implies that Congress intended the enforceable
provision to create a statutory right. See Fulfillment Servs.
Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 619 (9th Cir.
2008). Second, the violation of a statutory right is usually a
sufficient injury in fact to confer standing. See Edwards v.
First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010)
(“Essentially, the standing question in such cases is whether
the constitutional or statutory provision on which the claim
rests properly can be understood as granting persons in the
plaintiff’s position a right to judicial relief.”); Fulfillment
Servs., 528 F.3d at 619 (same).
Spokeo contends, however, that Robins cannot sue under
the FCRA without showing actual harm. But the statutory
cause of action does not require a showing of actual harm
8 ROBINS V. SPOKEO, INC.
when a plaintiff sues for willful violations. 15 U.S.C.
§ 1681n(a) (“Any person who willfully fails to comply with
any requirement imposed under this subchapter with respect
to any consumer is liable to that consumer in an amount equal
to . . . damages of not less than $100 and not more than
$1,000 . . . .”); see also Beaudry v. TeleCheck Servs., Inc.,
579 F.3d 702, 705–07 (6th Cir. 2009) (ruling that the FCRA
“permits a recovery when there are no identifiable or
measurable actual damages”); Murray v. GMAC Mortg.
Corp., 434 F.3d 948, 952–53 (7th Cir. 2006) (ruling that the
FCRA “provide[s] for modest damages without proof of
injury”).2
The scope of the cause of action determines the scope of
the implied statutory right. See Edwards, 610 F.3d at 517
(“Because the statutory text does not limit liability to
instances in which a plaintiff is overcharged, we hold that
Plaintiff has established an injury sufficient to satisfy Article
III.”). When, as here, the statutory cause of action does not
require proof of actual damages, a plaintiff can suffer a
violation of the statutory right without suffering actual
damages.
2
Spokeo urges that such interpretation of the FCRA “would raise
serious constitutional issues,” suggesting that we should adopt the
contrary reading, which the Eighth Circuit has described as “reasonable.”
See Dowell v. Wells Fargo Bank, NA, 517 F.3d 1024, 1026 (8th Cir. 2008)
(per curiam) (noting that one “reasonable reading of the [FCRA] could
still require proof of actual damages but simply substitute statutory rather
than actual damages for the purpose of calculating the damage award”).
We are not persuaded. As we explain below, our reading of the FCRA
does not raise difficult constitutional questions. That our sister circuit has
described Spokeo’s reading as “reasonable,” without actually ruling on the
best interpretation of the statutory text, is of little consequence here.
ROBINS V. SPOKEO, INC. 9
B
Of course, the Constitution limits the power of Congress
to confer standing. See Lujan, 504 U.S. at 577 (refusing “[t]o
permit Congress to convert the undifferentiated public
interest in executive officers’ compliance with the law into an
‘individual right’ vindicable in the courts”); id. at 580
(Kennedy, J., concurring in part and concurring in the
judgment) (“The Court’s holding that there is an outer limit
to the power of Congress to confer rights of action is a direct
and necessary consequence of the case and controversy
limitations found in Article III.”). This constitutional limit,
however, does not prohibit Congress from “elevating to the
status of legally cognizable injuries concrete, de facto injuries
that were previously inadequate in law.” Id. at 578 (majority
opinion).
The issue before us is whether violations of statutory
rights created by the FCRA are “concrete, de facto injuries”
that Congress can so elevate. We are not the first Court of
Appeals to face this question. In Beaudry, the Sixth Circuit
considered whether an FCRA plaintiff suing under 15 U.S.C.
§ 1681n had sufficiently alleged an injury in fact by alleging
a violation of the FCRA. 579 F.3d at 707. The court
identified two constitutional limitations on congressional
power to confer standing. First, a plaintiff “must be ‘among
the injured,’ in the sense that she alleges the defendants
violated her statutory rights.” Id. Second, the statutory right
at issue must protect against “individual, rather than
collective, harm.” Id. The Beaudry court held that the
plaintiff satisfied both of these requirements. Id.
Robins is in the same position. First, he alleges that
Spokeo violated his statutory rights, not just the statutory
10 ROBINS V. SPOKEO, INC.
rights of other people, so he is “among the injured.” Second,
the interests protected by the statutory rights at issue are
sufficiently concrete and particularized that Congress can
elevate them. Lujan, 504 U.S. at 578. Like “an individual’s
personal interest in living in a racially integrated community”
or “a company’s interest in marketing its product free from
competition,” Robins’s personal interests in the handling of
his credit information are individualized rather than
collective. Id. (describing two “concrete, de facto injuries”
that Congress could “elevat[e] to the status of legally
cognizable injuries”). Therefore, alleged violations of
Robins’s statutory rights are sufficient to satisfy the injury-in-
fact requirement of Article III.
C
In addition to injury in fact, of course, standing requires
causation and redressability. See Laidlaw, 528 U.S. at
180–81. Where statutory rights are asserted, however, our
cases have described the standing inquiry as boiling down to
“essentially” the injury-in-fact prong. See Edwards, 610 F.3d
at 517; Fulfillment Servs., 528 F.3d at 618–19. When the
injury in fact is the violation of a statutory right that we
inferred from the existence of a private cause of action,
causation and redressability will usually be satisfied. First,
there is little doubt that a defendant’s alleged violation of a
statutory provision “caused” the violation of a right created
by that provision. Second, statutes like the FCRA frequently
provide for monetary damages, which redress the violation of
statutory rights. See Jewel v. Nat’l Sec. Agency, 673 F.3d
902, 912 (9th Cir. 2011) (ruling that there was “no real
question about redressability” when a plaintiff sought “an
injunction and damages, either of which is an available
ROBINS V. SPOKEO, INC. 11
remedy”). Therefore, Robins has adequately pled causation
and redressability in this case.3
IV
For the foregoing reasons, Robins adequately alleges
Article III standing.4
REVERSED AND REMANDED.
3
Because we determine that Robins has standing by virtue of the alleged
violations of his statutory rights, we do not decide whether harm to his
employment prospects or related anxiety could be sufficient injuries in
fact.
4
Because standing is the only question before us, we do not intimate any
opinion on the merits of this case. We do not decide, for example,
whether Spokeo qualifies as a consumer reporting agency or whether
Spokeo actually violated the FCRA.