Judge O’Scannlain: violation of a congressionally-created right is a injury sufficient for standing

Back in the Supreme Court's 2011 Term, a case that got a fair bit of attention was First American v. Edwards, which raised the question whether a plaintiff whose only injury was the violation of a congressionally-created right had standing to sue in federal court. The Court dismissed the case as improvidently granted (i.e., without ruling on it), thus leaving in place a Ninth Circuit decision holding that a plaintiff in such a circumstance does have standing.

Yesterday, a Ninth Circuit matter-of-factly applied that rule to hold that the plaintiff's allegation of a violation of his rights under the Fair Credit Reporting Act was enough to support standing, regardless of whether he had suffered further harm. It is not terribly remarkable that the Ninth Circuit followed its own precedent. What is worthy of note is the author of the opinion — Judge Diarmuid O'Scannlain, widely considered a strong conservative (see, for instance, here and here) and therefore particularly likely to be skeptical of standing. Even if he felt bound by prior Ninth Circuit law, Judge O'Scannlain could have noted he was following circuit law reluctantly despite his disagreement with it or that he had some doubts about the circuit's jurisprudence (for examples of such opinions, see the majority opinion here and Judge Wallace's opinion "writing separately" here). But Judge O'Scannlain seemed to have no trouble with the point. Perhaps that bodes well for how other conservatives will view this issue.

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