<i>TransUnion</i>, <i>Vermont Agency</i>, and Statutory Damages Under Article III

The Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute such as the Fair Credit Reporting Act simply because the defendant violated a right Congress conferred on the plaintiff. Article III instead requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” Under the majority’s reading of Article III, “an injury in law is not an injury in fact.” The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States ex rel. Stevens. The Vermont Agency Court unanimously ruled that Congress may authorize a private qui tam informer to sue for statutory penalties based on a violation of duties owed to the public, even though the informer has not suffered any particularized injury attributable to the defendant’s unlawful conduct. The Court closely examined statutes of the First Congress in light of Anglo-American legal history to find qui tam actions compatible with Article III. Early legislators understood qui tam actions to present “cases” or “controversies” traditionally resolved through the judicial process. A comparable examination of late eighteenth-century federal legislation undermines the majority’s decision in TransUnion. Statutory damages are a modern version of statutory forfeitures available under framing-era penal statutes. Sir William Blackstone explains that a defendant who violates a penal statute must pay a statutory forfeiture to whomever the legislature specifies, whether an aggrieved party, a public official, or a qui tam informer. Just as Congress awarded forfeitures to uninjured qui tam informers in early federal legislation, Congress likewise directed forfeitures to aggrieved parties who suffered no injury beyond the defendant’s violation of an individual right protected by statute. By claiming judicial authority to determine whether a plaintiff has suffered a “concrete” injury warranting recovery of statutory damages, the TransUnion Court inverted the framing-era relationship between legislatures and courts.