Case: 22-50692 Document: 00516490122 Page: 1 Date Filed: 09/29/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 29, 2022
No. 22-50692 Lyle W. Cayce
Clerk
Campaign Legal Center; American Civil Liberties Union
Foundation of Texas; Mexican American Legal Defense
and Educational Fund, Incorporated; Lawyers
Committee for Civil Rights Under Law; DEMOS a
Network for Ideas and Action, Limited,
Plaintiffs—Appellees,
versus
John B. Scott, in his official capacity as Secretary of
the State of Texas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-92
Before Jones, Ho, and Wilson, Circuit Judges.
Edith H. Jones, Circuit Judge:
The Plaintiffs obtained an injunction from the district court requiring
the State of Texas to provide information including the names and voter
identification numbers of persons suspected of being noncitizens though
registered to vote. Reversing the district court, we hold that the
organizations constituting the Plaintiffs lack standing to bring their claim
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under the National Voter Registration Act of 1993 (“NVRA”).
Consequently, we REVERSE and REMAND with instructions to DISMISS.1
I. BACKGROUND
This action arises from federal and state law, specifically, the NVRA’s
“public disclosure provision,” 52 U.S.C. § 20507(i)(1), and Sections 16 and
31 of the Texas Election Code.
The NVRA is designed to “increase the number of eligible citizens
who register to vote” and “enhance[] the participation of eligible citizens as
voters” in federal elections. 52 U.S.C. § 20501(b)(1)–(2). Equally
important, the NVRA is intended to “protect the integrity of the electoral
process” and “ensure that accurate and current voter registration rolls are
maintained.” Id. § 20501(b)(3)–(4). In line with the latter goals:
Each State shall maintain for at least 2 years and shall make
available for public inspection and, where available,
photocopying at a reasonable cost, all records concerning the
implementation of programs and activities conducted for the
purpose of ensuring the accuracy and currency of official lists
of eligible voters, except to the extent that such records relate
to a declination to register to vote or to the identity of a voter
registration agency through which any particular voter is
registered.
Id. § 20507(i)(1). “A person who is aggrieved by a violation of [the NVRA]
may provide written notice of the violation to the chief election official of the
State involved” and may file suit for injunctive relief if the violation goes
uncorrected. Id. § 20510(b)(1)–(2).
1
The U.S. Government moved in this court, for this first time, to intervene and
defend the NVRA provision here at issue against a challenge by the State. In light of our
disposition of this case, we DENY the motion as unnecessary.
2
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The NVRA also provides that resident citizens can register to vote in
a state when they apply for or renew their driver’s licenses. See id. § 20504.
The state must, however, cross-check registrations to ensure that only
eligible voters remain on the rolls. See id. § 20507. To do so, the Texas
Secretary of State (“the Secretary”) periodically compares information in
the existing statewide computerized voter registration list against citizenship
information in the database of the Department of Public Safety (“DPS”).
Tex. Elec. Code § 16.0332(a-1). Next, the Secretary sends the names of
any potentially ineligible voter to appropriate local registrars. See id.
§§ 16.033(a), .0332(a). If registrars determine a voter may be ineligible, they
send “a written notice requiring the voter to submit to the registrar proof of
United States citizenship.” Id. § 16.0332(a). Failure to provide such proof
can lead to cancellation of voter registrations. See id. §§ 16.033, 16.0332(b).
In the course of the Secretary’s maintenance activity, the Secretary
may “receiv[e] or discover[] information indicating that criminal conduct in
connection with an election has occurred.” Id. § 31.006(a). If the Secretary
“determines that there is reasonable cause to suspect that criminal conduct
occurred,” then he “refer[s] the information to the attorney general.” Id.
That information only becomes public once the Secretary determines it
“does not warrant an investigation,” or “if referred to the attorney general,
the attorney general has completed the investigation or has made a
determination that the information referred does not warrant an
investigation.” Id. § 31.006(b).
The instant case is preceded by a 2019 lawsuit filed by other parties
against an earlier iteration of the state’s voter roll maintenance program. The
State settled that case in an agreement providing that the Secretary may
“obtain potential non-U.S. citizen data from DPS on a weekly basis,” but the
Secretary is only allowed to flag “the records of voters whose effective date
3
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of voter registration is prior to, or no more than 30 calendar days after, the
issuance date of the voter’s current driver’s license or personal identification
card for which he or she proved lawful presence but not U.S. citizenship.”2
In other words, the Secretary only identifies “individuals who registered to
vote before they presented documents at a DPS office indicating their non-
citizenship.” The Secretary must also notify the plaintiffs’ attorneys
involved in the settlement 10 days before sending local election officials
information from any new database of suspected non-citizen voters.
The Texas Attorney General informed Plaintiffs’ counsel in this case
that the Secretary had begun matching DPS data against voter registration
rolls on a weekly basis and intended to notify county election officials of
voters identified as potential non-citizens. An August 2021 letter indicated
that the Secretary intended to send information identifying 11,197 registered
voters as potential non-citizens to local officials. In a September 2021 letter,
the Secretary stated that it had identified 49 additional potential non-citizens
during the first three weeks of updates.
It is unclear why Plaintiffs received the letters because none was a party
to the 2019 settlement. Nonetheless, their counsel responded to both letters
by asking the Secretary for:
The list of all . . . registrants [the Secretary’s] office identified
as potential non-U.S. citizens, including the date each
individual registered to vote, the effective date of each
individual’s voter registration; the date each individual
provided documentation to DPS; the issuance date of each
individual’s current driver’s license or personal identification;
the documents provided to DPS showing proof of lawful
2
This requirement was later codified. See Tex. Elec. Code § 16.0332(a-1).
4
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presence but not U.S. citizenship; and the voting history of
each of these individuals.
The Secretary denied the requests on the basis of privacy concerns,
asserted that the records were protected from disclosure under the Texas
Public Information Act (“PIA”), Tex. Gov’t Code § 552, and indicated
his intent to seek a decision from the Attorney General as to whether to
withhold them. Plaintiffs charged that withholding the requested documents
violated the NVRA’s public disclosure provision, and they were entitled to
file suit if the violation was not corrected within 90 days.
As of January 14, 2022, 278 of the flagged voters had been confirmed
as non-citizens. The status of the remaining flagged voters is unknown. In
February 2022, Plaintiffs filed suit seeking declaratory and injunctive relief
against the Secretary in his official capacity for violating the NVRA.
Consolidating a hearing for preliminary injunction with the merits, the
district court held a bench trial and found that Plaintiffs have standing to seek
the records; the requested records are subject to the NVRA’s public
disclosure provision; in three counties, the Secretary’s list erroneously
flagged some eligible voters as non-citizens; and the Secretary’s failure to
produce the records violated the NVRA because no exception applied. A
separate mandatory injunction required the Secretary to provide Plaintiffs
with a bevy of information regarding each of the 11,246 voters identified as
potential non-citizens. The Secretary has provided all that information
except individuals’ names and voter identification numbers.
The Secretary appealed and moved both the district court and this
court for a stay pending appeal. This court granted the Secretary’s motion
for a temporary administrative stay of the district court’s injunction. The
appeal was expedited to an oral argument calendar.
5
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II. DISCUSSION
To resolve this appeal, we need go no further than to discuss the
Plaintiffs’ Article III standing to sue, a question of law subject to de novo
review. Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 319 (5th Cir. 2002).
“Because this case was tried, Plaintiffs needed to prove standing by a
preponderance of the evidence.” Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil
Corp., 968 F.3d 357, 367 (5th Cir. 2020) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S. Ct. 2130, 2136–37 (1992)). “A factual finding that
a plaintiff met that burden is reviewed for clear error.” Id. (collecting cases).
Because the district court erred in finding that the plaintiffs have Article III
standing, it had no jurisdiction to reach the merits. Cook v. Reno, 74 F.3d 97,
99 (5th Cir. 1996).
And among the three criteria necessary to confer Article III standing,
we need only dwell on the first, whether Plaintiffs suffered an injury in fact
that is (a) concrete3 and particularized4 and (b) actual or imminent. Lujan,
504 U.S. at 560–61, 112 S. Ct. at 2136–37 (internal quotation marks and
citations omitted);5 see also Spokeo, Inc. v. Robins, 578 U.S. 330, 337–42,
136 S. Ct. 1540, 1547–49 (2016). Absent such injury, “there is no case or
controversy for the federal court to resolve.” Casillas v. Madison Ave. Assocs.,
926 F.3d 329, 333 (7th Cir. 2019) (Barrett, J.).
3
For an injury to be concrete it must be “real, and not abstract.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 340, 136 S. Ct. 1540, 1548 (2016) (internal quotation marks omitted).
4
“For an injury to be particularized, it must affect the plaintiff in a personal and
individual way.” Id. at 339 (internal quotation marks omitted).
5
As Lujan set forth, the other two criteria are that the injury is fairly traceable to
the defendant’s conduct and that the injury is redressable by a favorable court decision. Id.
at 338, S. Ct. at 1547.
6
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At trial, the Plaintiffs, though challenged by the Secretary, offered no
evidence to support their claim of standing. The district court addressed the
issue perfunctorily, reciting the Supreme Court’s decision in TransUnion
LLC v. Ramirez for the proposition that when a plaintiff claims
“informational injury” arising from a statutory public disclosure provision,
the plaintiff must also adduce “‘downstream consequences,’ which include
adverse effects related to the information deficit.” Campaign Legal Ctr. v.
Scott, _ F. Supp. 3d _, 2022 WL 3221301, at *3 (W.D. Tex. Aug. 2, 2022)
(citing TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021)). The
district court held the test satisfied by (a) the NVRA’s public disclosure
requirement backed by a citizen suit provision and (b) “‘downstream
consequences,’ including the lack of an opportunity for Plaintiffs to identify
eligible voters improperly flagged in the database.” Id. at *4. (Whether the
court’s characterization of downstream consequences is a conclusion of law
or finding of fact is ultimately immaterial.)
On appeal, Plaintiffs attempt to establish standing by asserting three
theories of informational injury standing. First, Plaintiffs contend that as
“civic engagement organizations . . . [they] have standing to request records
under the NVRA[]” and therefore have a right to the requested registrant
records. Second, they maintain that “there is [a] downstream injury with
respect to the public not having visibility into how Texas is keeping its voter
lists[.]” Third, Plaintiffs assert that “there is [a] downstream injury with
respect to the public not having visibility into . . . properly registered Texans
being discriminated against and burdened in their right to vote.” The first
theory was rejected by this court only a few weeks ago, and the other two
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theories encompass no more than alleged injuries to the public and affected
Texas voters writ large.6
Even if Plaintiffs had a right to the records sought, an issue we do not
reach, they have not established an injury in fact. See Spokeo, 578 U.S. at 341,
136 S. Ct. at 1549. Spokeo implied7 and TransUnion held that “under Article
III, an injury in law is not an injury in fact.” TransUnion, 141 S. Ct. at 2205.
TransUnion generally rejected the Attorney General’s advocacy for an
unlimited “informational injury” approach to standing, in part by explaining
that “the plaintiffs have identified no ‘downstream consequences’ from
failing to receive the required information.’” 141 S. Ct. at 2214 (quoting
Trichell v. Midland Credit Mgmt., 964 F.3d 990, 1004 (11th Cir. 2020)). As
this court recently observed, TransUnion rejected “the proposition that ‘a
plaintiff automatically satisfies the injury-in-fact requirement whenever a
6
Plaintiffs argue for the first time on appeal that they seek the requested
“information, in part, to fulfill their obligations to the clients they represented . . . who are
parties to the 2019 Settlement Agreement.” Plaintiffs claim they “will use this information
to advise their former clients as to their rights, if any, under the 2019 settlement agreement, if the
records show that Defendant has failed to comply with the terms therein.” Because they
did not articulate that theory of standing below, it is forfeited. See Ctr. for Bio. Diversity v.
EPA, 937 F.3d 533, 542 (5th Cir. 2019) (collecting cases). In any event, such a claimed
injury is insufficient to confer standing. There is no further allegation as to how the 2019
settlement is linked to claims of NVRA violation in the Secretary’s 2021 maintenance
efforts. And there is no explanation how the “Plaintiffs” here—as opposed to their lawyers
(who are not Plaintiffs)—have any relationship to the parties that settled the 2019 case.
Nor is there any evidence of an ongoing attorney-client relationship between any settling
party and Plaintiffs. Finally, Plaintiffs’ desire to bring legal claims on behalf of potential
future litigants is entirely speculative and thus insufficient to confer standing on the
organizations themselves. See, e.g., Vote.Org v. Callanen, 39 F.4th 297, 304 (5th Cir. 2022).
Plaintiffs cannot show a sufficiently concrete injury based on the prospect of a “future
attorney-client relationship with as yet unascertained” individuals. Kowalski v. Tesmer,
543 U.S. 125, 130–31, 125 S. Ct. 564, 568 (2004).
7
“Article III standing requires a concrete injury even in the context of a statutory
violation.” Spokeo, 578 U.S. at 341, 136 S. Ct. at 1549.
8
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statute grants a person a statutory right and purports to authorize that person
to sue to vindicate that right.’” Perez v. McCreary, Veselka, Bragg & Allen,
P.C., _F.4th_, 2022 WL 3355249, at *4 (5th Cir. Aug. 15, 2022) (quoting
TransUnion, 141 S. Ct. at 2205).8 “[R]egardless of whether a statutory right
is procedural or substantive, Spokeo emphasized that ‘Article III standing
requires a concrete injury even in the context of a statutory violation.’” Id.
(quoting Spokeo, 578 U.S. at 341, 136 S. Ct. at 1549) (emphasis added).
Plaintiffs’ initial claim of informational injury based solely on the Secretary’s
alleged NVRA violation founders on Perez’s explanation of the scope of
Spokeo and TransUnion, by which we are bound.9
Moreover, Plaintiffs here offered no meaningful evidence regarding
any downstream consequences from an alleged injury in law under the
NVRA. Their second and third theories of standing assert a statutory right
of the public to the “visibility” of the Secretary’s process. But absent
concrete and particularized harm to these Plaintiffs from not obtaining the
requested personal voter information,10 they assert no cognizable injury in
fact. Similarly, the district court’s concern about Plaintiffs’ lack of
8
Even before TransUnion and Perez, this court held that a plaintiff must assert
personal consequences in addition to a claimed informational injury. See Laufer v. Mann
Hosp., Inc., 996 F.3d 269, 272–73 (5th Cir. 2021)(plaintiff lacked standing to complain of
alleged ADA disclosure violation by hotel where she evinced no intention of visiting the
hotel or the state in the foreseeable future).
9
The Perez interpretation of these Supreme Court holdings is consistent with other
circuits’ case law. See, e.g., Laufer v. Looper, 22 F.4th 871, 880–81 (10th Cir. 2022); Trichell
v. Midland Credit Mgmt., 964 F.3d 990, 1004 (11th Cir. 2020) (pioneering the “downstream
consequences” expression for informational injury cases); Frank v. Autovest, LLC,
961 F.3d 1185, 1188 (D.C. Cir. 2020); Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 467 (6th
Cir. 2019); Robertson v. Allied Sols., LLC, 902 F.3d 690, 697 (7th Cir. 2018); Dreher v.
Experian Info. Sols., Inc., 856 F.3d 337, 346–47 (4th Cir. 2017).
10
Recall that the Secretary has provided much of the additional information
requested by Plaintiffs and required by the district court’s injunction.
9
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“opportunity” to identify voters incorrectly described by the Secretary’s
data base expresses a speculative rather than concrete grievance. To support
standing, however, Plaintiffs’ injury must be more than speculative and must
be “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409,
133 S. Ct. 1138, 1147 (2013); see also Stringer v. Whitley, 942 F.3d 715, 721 (5th
Cir. 2019) (“whether compliance with the NVRA would prevent future
injury to others is irrelevant; plaintiffs seeking injunctive relief must show a
continuing or threatened future injury to themselves”).
The lack of concrete harm here is reinforced because not a single
Plaintiff is a Texas voter, much less a voter wrongfully identified as ineligible,
and the Plaintiffs have not claimed organizational standing on behalf of any
Texas voter members. They cannot and do not “claim standing on behalf of
any voter whose data is likely to be [mishandled].” Elec. Priv. Info. Ctr. v.
Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 380 (D.C.
Cir. 2017). As the D.C. Circuit also explains, “[t]he doctrines of
informational and organizational standing do not derogate from the elemental
requirement that an alleged injury be ‘concrete and particularized.’” Id.
The principal cases relied on by Plaintiffs for their freestanding
informational injury claim, while superficially appealing, are inapt. FEC v.
Akins involved “a group of voters with views often opposed to those of [the
American Israel Public Affairs Committee], [seeking] to persuade the
[Federal Election Commission] to treat AIPAC as a ‘political committee.’”
524 U.S. 11, 15–16, 118 S. Ct. 1777, 1781–82 (1998). Plaintiffs in Public Citizen
v. Dep’t of Justice sought “access to [an] ABA Committee’s meetings and
records in order to monitor its workings and participate more effectively in
the judicial selection process.” 491 U.S. 440, 449, 109 S. Ct. 2558, 2564
(1989). The Supreme Court in each case essentially concluded that
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government refusals to compel disclosures of information arguably required
by law constituted a concrete Article III injury.
Further, in Spokeo, though not in TransUnion, the Supreme Court
cited Akins and Public Citizen for the proposition that “the violation of a
procedural right granted by statute can be sufficient in some circumstances
to constitute injury in fact. In other words, a plaintiff in such a case need not
allege any additional harm beyond the one Congress has identified.” Spokeo,
578 U.S. at 342, 136 S. Ct. at 1549 (emphasis in original).
In TransUnion, by contrast, the Court distinguished the Fair Credit
Reporting Act from the holdings in Akins and Public Citizen, which “involved
denial of information subject to public-disclosure or sunshine laws that entitle
all members of the public to certain information.” TransUnion, 141 S. Ct. at
2214. But the Court noted next in the same paragraph that, “[m]oreover, the
[TransUnion] plaintiffs have identified no ‘downstream consequences’ from
failing to receive the required information.” Id. (citing Trichell, 964 F.3d at
1004). The “downstream consequences” sentence seems ambiguous: it
might be read to reference only a defect in the TransUnion plaintiffs’ claims
of injury but not to include the “sunshine laws” covered by Akins and Public
Citizen. Or, because that sentence falls within a paragraph rejecting the
United States’s description of informational injury standing, it could be
deemed a defect in that theory even if applied to Akins and Public Citizen.
We pause, because the Plaintiffs assert that the Secretary allegedly
violated a public disclosure provision of the NVRA. Consequently, Akins and
Public Citizen, on one reading of Spokeo and TransUnion, may dispense with
“downstream consequences” on the earlier cases’ reasoning that the
nondisclosure violation alone creates concrete injury. But while
acknowledging that semantic possibility, we believe the better reading of the
cases was offered by Judge Katsas in Trichell, where he noted that in both
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Akins and in Public Citizen, the plaintiffs had actually asserted “downstream
consequences” since they needed the information in order to participate
directly and actively in, respectively, the electoral and judicial selection
processes. Trichell, 964 F.3d at 1004. That his descriptive term was quoted
by the Supreme Court in TransUnion fortifies this analysis. In addition, the
Tenth Circuit reasoned exactly the same way in harmonizing Public Citizen
and Akins with TransUnion. See Laufer, 22 F.4th at 881.
Thus, even in public disclosure-based cases, plaintiffs must and can
assert “downstream consequences,” which is another way of identifying
concrete harm from governmental failures to disclose. Nonetheless, the
Plaintiffs here still lack standing. They do not allege that identification of
voter names and identification numbers will directly lead to action relevant
to the NVRA or any other statute, nor that their direct participation in the
electoral process will be hindered.11 At best, they might at some future date
seek to vindicate the specific interests of third party voters whom they (and
their counsel) do not represent—which is both speculative and a far cry from
concrete injury to Plaintiffs themselves. Plaintiffs’ claim lacks downstream
consequences for purposes of Article III standing and is not controlled by
either Akins or Public Citizen.12
11
After all, the Secretary’s list is just a first step in a multi-step process to
investigate and remove noncitizen voters from the voter lists. Nondisclosure here in no
way disables the Plaintiffs’ ability to seek out potential plaintiffs, e.g., from the county
registrars from whom they have already obtained information.
12
We take no position on the concurrence’s gratuitous argument offering the
plaintiffs an opportunity to cure the deficiency in their standing and sue again. No such
issue was raised before us, nor is it appropriate to comment on a party’s future litigation
strategy.
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For the foregoing reasons, Plaintiffs lacked standing to sue under the
NVRA. We DENY as moot the Secretary’s motion for a stay pending appeal,
and REVERSE and REMAND with instructions to DISMISS.
13
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James C. Ho, Circuit Judge, concurring in the judgment:
Open government is not just a founding principle of our country—it
is an essential component of popular sovereignty. As James Madison
observed, “a people who mean to be their own Governors, must arm
themselves with the power which knowledge gives.” Letter from James
Madison to W.T. Barry (Aug. 4, 1822), in The James Madison Papers
at the Library of Congress, 1723–1859: Series 1, General
Correspondence.
Congress has given effect to this founding principle by enacting laws
such as the Freedom of Information Act, 5 U.S.C. § 552. The premise of
laws like FOIA, and like the provisions presented in this case, is simple:
Information about our government should be made available to citizens based
on their right to know—not on their need to know.
Members of Congress have echoed this vision. See, e.g., 162 Cong.
Rec. S1495–96 (daily ed. Mar. 15, 2016) (“[T]he Freedom of Information
Act is premised on . . . the public’s right to know what their government is
doing on their behalf. . . . It shouldn’t be incumbent on an American citizen
asking for information from their own government . . . to come in and prove
something to be able to get access to something that is theirs in the first
place.”) (statement of Sen. Cornyn during debate over 2016 amendments to
FOIA).
As have various agencies within the Executive Branch. See, e.g., U.S.
Dep’t of the Treasury, The Freedom of Information Act
Handbook 1 (July 2010) (under FOIA, “the ‘need to know’ standard has
now been replaced by a ‘right to know’ standard”).
The judiciary once reflected this vision as well. In Public Citizen v.
U.S. Department of Justice, 491 U.S. 440 (1989), for example, the Supreme
Court noted that “[o]ur decisions interpreting the Freedom of Information
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Act have never suggested that those requesting information under it need
show more than that they sought and were denied specific agency records.”
Id. at 449 (emphasis added). “[A] plaintiff suffers an ‘injury in fact’ when
the plaintiff fails to obtain information which must be publicly disclosed
pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998).
So under longstanding precedent, plaintiffs do not have to state their
need to know in order to sue under laws like FOIA.
The Supreme Court recently altered its approach, however. Under
current precedent, it is no longer enough to show that the government has
denied a request for information. “An asserted informational injury that
causes no adverse effects cannot satisfy Article III.” TransUnion LLC v.
Ramirez, 594 U.S. _, _, 141 S. Ct. 2190, 2214 (2021) (quotations omitted).
So mere denial of information, without more, is insufficient to establish injury
in fact under Article III.1
To demonstrate Article III injury today, then, plaintiffs must now
separately identify what “‘downstream consequences’” they will suffer
“from failing to receive the required information.” Id. In other words, they
must establish a tangible injury that flows from the denial of the
information—separate and apart from the denial of the information itself.
This change in standing jurisprudence may trouble those who believe
in the foundational importance of open government. See, e.g., Erwin
Chemerinsky, What’s Standing After TransUnion LLC v. Ramirez, 96
N.Y.U. L. Rev. Online 269, 271, 283 (2021) (“I cannot find a single case
1
The Court altered its approach over a number of dissenting voices. See, e.g., id.
at 2220-21 (Thomas, J., dissenting) (“A statute that creates a private right and a cause of
action . . . gives plaintiffs an adequate interest in vindicating their private rights in federal
court. . . . [T]he unlawful withholding of requested information causes ‘a sufficiently
distinct injury to prove standing to sue.’”) (quoting Public Citizen, 491 U.S. at 449).
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where a federal court has questioned the standing of a person to challenge the
denial of a Freedom of Information Act request. But after TransUnion, it is
unclear whether suits to enforce the Freedom of Information Act still will be
allowed. . . . It is hard to overstate how dramatic this could be in limiting the
ability to use under federal laws if the Supreme Court follows this in the
future.”); cf. Villarreal v. City of Laredo, 44 F.4th 363, 378 (5th Cir. 2022)
(“Open government is a founding principle of our country.”) (quotations
omitted).
But I wonder if there is any real cause for alarm. After TransUnion, it
may no longer be entirely accurate to say that laws like FOIA are premised
on the right to know, rather than the need to know. But TransUnion may not
ultimately prove all that difficult for plaintiffs who wish to assert their
statutory rights to public information. After all, it’s hard to imagine a plaintiff
who is willing to go through the trouble to file a lawsuit to obtain public
information—yet is unable to attach a simple affidavit noting why the plaintiff
needs that information.
Consider this case. There may be any number of ways that Plaintiffs
here can establish a “downstream consequence” that they will suffer if
denied the information they seek. Perhaps the information is necessary to
engage in public advocacy about a pressing matter of policy—as was the case
for Washington Legal Foundation and others in Public Citizen. Perhaps the
information is essential to furthering Plaintiffs’ mission to protect the voting
rights of various communities. Perhaps they can articulate yet another need
for the information.
As the majority points out, Plaintiffs did not present evidence of a
downstream consequence in this case. But as counsel for the State of Texas
repeatedly acknowledged during oral argument, the evidence of injury
required by TransUnion is “not . . . burdensome.”
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Given the State’s acknowledgment of the low evidentiary burden, it
would not be surprising if Plaintiffs responded to today’s decision by
assembling evidence of downstream consequences for a future lawsuit. If
Plaintiffs do, it will be for the district court to address in the first instance.
See, e.g., Lopez v. Pompeo, 923 F.3d 444, 447 (5th Cir. 2019) (“A dismissal for
lack of jurisdiction . . . does not operate as an adjudication on the merits. The
dismissal permits a second action on the same claim that corrects the
deficiency found in the first action.”) (cleaned up); Hughes v. United States,
71 U.S. 232, 237 (1866) (“If the first suit was dismissed for . . . want of
jurisdiction . . . the judgment rendered will prove no bar to another suit.”).2
With these observations, I concur in the judgment.
2
The panel majority criticizes this paragraph as a “gratuitous argument offering
the plaintiffs an opportunity to cure the deficiency in their standing and sue again. No such
issue was raised before us, nor is it appropriate to comment on a party’s future litigation
strategy.” Ante, at 13 n.12.
With great respect, I don’t understand the charge. The paragraph above simply
mirrors what Justice Alito said in California v. Texas, _ U.S. _, _, 141 S. Ct. 2104, 2135 n.9
(Alito, J., dissenting), involving Texas’s most recent challenge to the Affordable Care Act.
There, the district court entered judgment on the merits in favor of the plaintiffs.
That judgment was later reversed for lack of standing—but only after the Court identified
a potential theory of standing that the plaintiffs simply neglected to present. See id. at 2116;
see also id. at 2133–35 (Alito, J., dissenting). That led Justice Alito to observe that, “[i]f the
effect of the Court’s decision is dismissal of this action for lack of Article III jurisdiction,
the States may file a new action.” Id. at 2135 n.9.
This case is identical in all relevant respects. Here, as in California, the district
court entered judgment on the merits in favor of the plaintiffs. Here, as in California, that
judgment was later reversed for lack of standing—but only after this court identified a
potential theory of standing that the plaintiffs simply neglected to present. And here, that
leads me to make the same observation that Justice Alito made in California—that the
plaintiffs “may file a new action.” Id. The same neutral principles of law should apply
whether Texas is the plaintiff (as it was in California) or the defendant (as it is here).
17