Actual or Imminent Injury

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

To satisfy the demands of Article III, a litigant must have suffered an “actual or imminent” injury or, in other words, have “sustained or [be] immediately in danger of sustaining some direct injury as the result of the challenged . . . conduct.” 1 To satisfy this test, a litigant’s injury must either have already occurred, be presently occurring, or will imminently occur (i.e., be “certainly impending” ).2 The “actual or imminent” injury prong of the Lujan test is related to the “redressability” prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief).3 On the other hand, if the injury occurred wholly in the past, the litigant may demonstrate redressability if it seeks monetary damages.4

The requirement that a litigant establish an “actual” (i.e., past or present) injury is largely synonymous with the requirement for a concrete and particularized injury.5 For example, in Lewis v. Casey, the Court defined an “actual injury” to an inmate’s constitutional right of access to the courts and counsel as requiring an inmate to “demonstrate that the alleged shortcomings in [a prison’s] library or legal assistance program hindered his efforts to pursue a legal claim.” 6 This evidentiary burden simply required a showing that the inmate had suffered an injury in the past that went beyond harm to “an abstract, freestanding right to a law library or legal assistance” and involved more than an allegation that a “prison’s law library or legal assistance program [was] subpar in some theoretical sense.” 7 The Court cited as an example of actual injury in this context that an inmate’s legal complaint “was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known.” 8

The major questions that have arisen concerning the “actual or imminent” prong of the standing inquiry largely involve cases in which a litigant alleges future (i.e., “imminent” ) injury and seeks injunctive relief to prevent it.9 The Supreme Court has decided several cases addressing when a litigant’s alleged future injures are sufficiently imminent to confer standing to seek a court order aimed at redressing them.

For example, the Court has indicated that it may be difficult for a litigant to establish an “actual or imminent” injury when he seeks injunctive relief against government officials for allegedly illegal and unconstitutional systemic practices in their administration or enforcement of the law.10 In O’Shea v. Littleton,11 several residents of Cairo, Illinois, sued state and local officials for allegedly administering the criminal justice system in a discriminatory and unconstitutional manner through a pattern of illegal bondsetting, sentencing, and jury-fee practices.12 The Court determined that the plaintiffs lacked standing to seek an injunction against these practices because they did not allege they had actually suffered (or would immediately suffer) injuries from the conduct of these officials.13 Although some of the plaintiffs were defendants in past criminal cases, at the time that they brought their lawsuit, none of the plaintiffs were serving sentences, on trial, or awaiting trial, and they did not allege an intent to engage in illegal conduct in the future.14 The plaintiffs thus failed to demonstrate more than mere speculation that they would be subject to the challenged law enforcement practices and suffer injuries as a result of being arrested, charged with crimes under laws they did not challenge as unconstitutional, and subject to proceedings before the criminal justice system.15

A decade later, the Court held that past illegal conduct by the government does not imply that the government will again violate the law in the future. For purposes of standing, this holding means that a litigant cannot use that past conduct to demonstrate imminent harm when seeking a declaration from the court that the agency’s past action was illegal (i.e., a declaratory judgment) or an order preventing the agency from engaging in illegal conduct in the future (i.e., an injunction). In Los Angeles v. Lyons, the plaintiff sought damages for having allegedly suffered a chokehold at the hands of the city police department but also asked for injunctive relief prohibiting the city from using chokeholds in the future.16 However, the Court found the plaintiff’s allegations of future injury to be too speculative to support standing for the requested prospective injunctive relief because, although the plaintiff had been choked once, he could not realistically allege that there was a threat that he would again be arrested and illegally choked by the police as a result of the city’s policy.17

In a 2013 case implicating national security issues, the Court addressed how likely the threat of future harm to the plaintiff must be in order for that harm to qualify as an imminent injury. In Clapper v. Amnesty International USA, attorneys, human rights, labor, legal, and media organizations brought constitutional challenges alleging prospective injury from surreptitious federal government surveillance practices conducted by the Executive Branch pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA).18 The plaintiffs alleged that these practices presented an “objectively reasonable likelihood” that the government would intercept their communications with individuals outside of the United States.19 Although they could not definitively show that they or their clients or sources would be subject to these practices, the plaintiffs alleged threatened injury to their ability to “locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients.” 20 Moreover, the plaintiffs alleged that they had sustained actual, present injury because the risk of surveillance was “so substantial that they ha[d] been forced to take costly and burdensome measures to protect the confidentiality of their international communications.” 21

The Court, in a 5-4 ruling written by Justice Samuel Alito, found that the plaintiffs lacked standing because they could not show that the FISA provision threatened them with “certainly impending” harm22 or, at the very least, a substantial risk of harm from the government surveillance program.23 Moreover, the plaintiffs could not, in the Court’s view, “manufacture standing” by alleging present injury from the costs that they had incurred in order to avoid the hypothetical harm of government surveillance (e.g., travel expenses to conduct in-person conversations abroad).24 It is important to note that Clapper arose in the sensitive areas of national security and foreign affairs, areas where the Court has “often found a lack of standing in cases” because of concerns about the Judiciary interfering with the political branches’ activities.25

The following year, in a case not arising in the national security context, the Supreme Court appeared to adopt a broader view of the concept of “imminent harm.” In Susan B. Anthony List v. Driehaus, the Court addressed imminent harm in the context of a state government’s threatened enforcement of an allegedly unconstitutional law against an individual.26 The Court held that a potentially targeted person may mount a constitutional challenge to the law when enforcement is “sufficiently imminent.” As a result, the plaintiff does not have to be arrested or prosecuted before challenging the law.27 Instead, in order to have standing, the plaintiff must demonstrate “an intention to engage in a course of conduct arguably affected with a constitutional interest” that is “arguably proscribed by the statute challenged,” as well as a credible threat of enforcement of the law against him or her.28 Accordingly, the Court’s decision in Susan B. Anthony List suggests that there are still circumstances in which a substantial risk of harm to a litigant (rather than “certainly impending” harm) will suffice for standing purposes.29

The Supreme Court also found imminent harm in a 2008 lawsuit in which a candidate for Congress, who declared that he would “self-finance” his campaign, challenged provisions of federal election law that would have allowed his opponent to receive campaign contributions on more favorable terms.30 The Court determined that the self-financing candidate faced the threat of immediate injury.31 Although the opponent had not yet qualified for the campaign contribution benefit, the plaintiff had challenged the law after declaring his candidacy, as well as indicating his intent to spend enough of his personal funds during the campaign to trigger the benefit for his opponent.32 With the election in the near future, and finding no indication that the plaintiff’s opponent would relinquish the opportunity to receive expanded contributions, the Court determined that injury to the plaintiff was imminent and that the plaintiff had standing to sue.33

1: Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (citations omitted). The “actual or imminent” injury prong of the Lujan test is related to the “redressability” prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief). See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–09 (1998). On the other hand, if the injury occurred wholly in the past, the litigant may demonstrate redressability only if it seeks monetary damages. See id. A litigant cannot demonstrate “actual or imminent injury” from a legal requirement that has “no means of enforcement.” California v. Texas, No. 19-840, slip op. at 5 (U.S. June 17, 2021)
2: See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013).
3: See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–09 (1998).
4: See id.
5: The distinction between past and present injuries sometimes becomes blurred in practice. See, e.g., Clinton v. City of New York, 524 U.S. 417, 43031 (1998) (allowing the State of New York to challenge the President’s authority to exercise a line-item veto, based on a subsequent exercise of that veto that would result in a “substantial contingent liability” of billions of dollars on the state).
6: 518 U.S. 343, 351 (1996).
7: See id.
8: Id.
9: A litigant that seeks damages for an asserted risk of future harm has not demonstrated a concrete harm sufficient for Article III standing unless “the exposure to the risk of future harm itself causes a separate concrete harm.” TransUnion LLC v. Ramirez, No. 20-297, slip op. at 20, 26 (U.S. June 25, 2021).
10: E.g., Rizzo v. Goode, 423 U.S. 362, 372 (1976) (determining that litigants could not show “real and immediate injury” because their allegations concerned “what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures.” ).
11: 414 U.S. 488 (1974).
12: Id. at 490–92.
13: Id. at 494 ( “Abstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct.” ).
14: Id. at 494–95 ( “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents’ counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners.” ). Notably, the O’Shea plaintiffs alleged that they would likely have a future challenge to the government’s practices. If they had alleged that their past challenges to the government’s conduct had evaded judicial review because the unconstitutional conduct ceased before the litigants could bring a lawsuit, then the Court may have addressed the doctrine of mootness. See ArtIII.S2.C1.8.7 Capable of Repetition, Yet Evading Review (discussing circumstances in which the Court has made an exception to the mootness doctrine because conduct is “capable of repetition, yet evading review” ).
15: O’Shea, 414 U.S. 488 at 496 ( “Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” ); id. at 498 ( “[W]here respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.” ). See also Rizzo v. Goode, 423 U.S. 362, 372 (1976).
16: 461 U.S. 95, 105 (1983).
17: Id. ( “That Lyons may have been illegally choked by the police [in the past] . . . does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer . . . who would illegally choke him into unconsciousness without any provocation or resistance on his part.” ).
18: 568 U.S. 398, 401–02, 406–07 (2013). See also 50 U.S.C. § 1881a.
19: Clapper, 568 U.S. at 401–02, 406–07.
20: Id.
21: Id. at 407.
22: In adopting a “certainly impending” standard, the five-Justice majority conceded that the Court’s prior cases had not uniformly required literal certainty. Id. at 414 n.5.
23: Id. at 401–02, 414 n.5. See also Trump v. New York, No. 20-366, slip op. at 1–2, 5–7 (U.S. Dec. 18, 2020) (per curiam) (rejecting plaintiffs’ argument that they had standing to challenge a presidential memorandum directing the Secretary of Commerce to exclude from the federal census apportionment base “aliens who are not in lawful immigration status” because of a “substantial risk” that Commerce’s implementation of the memorandum would lead to a reduction in congressional representation or federal funding).
24: Clapper, 568 U.S. at 402, 407.
25: Id. at 409. The Court noted that it had previously applied the standing requirements more strictly in cases concerning national security or foreign affairs, including challenges to “the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director,” United States v. Richardson, 418 U.S. 166, 167–70 (1974); “the Armed Forces Reserve membership of Members of Congress,” Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 209–11 (1974); and “an Army intelligence-gathering program,” Laird, 408 U.S. at 11–16.
26: 573 U.S. 682 (2014).
27: Id. at 689–90, 695 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).
28: Id. at 692–98. See also Dep’t of Commerce v. New York, No. 18-966, slip op. at 8–10 (U.S. June 27, 2019) (deferring to the factual finding of the lower court that the Department of Commerce’s reinstatement of a citizenship question on the federal census could cause concrete and imminent injury to states with large numbers of noncitizens by depriving them of federal funds distributed on the basis of state population because it would “depress the census response rate” among noncitizen households); Pennell v. San Jose, 485 U.S. 1 (1988) (holding that a landlord and association of owners and lessors of real property had standing to challenge a city rent control ordinance because of the probability that, as a result of the enforcement of the ordinance, “a landlord’s rent will be reduced below what he or she would otherwise be able to obtain in the absence of the Ordinance” ); Doe v. Bolton, 410 U.S. 179, 188–89 (1973) (concluding that doctors had standing to challenge a Georgia statute restricting the performance of abortions “despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes” because they “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief” ). The Court relied on Doe v. Bolton to reach the same result in Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976).
29: See Susan B. Anthony List, 573 U.S. at 692–98 (referring several times to the threat of enforcement of the law against the litigants as “substantial” ). See also Thole v. U.S. Bank N.A., No. 17-1712, slip op. at 5 (U.S. June 1, 2020) (concluding that participants in a defined-benefit plan lacked standing because they failed to adequately plead that the plan managers had “substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future pension benefits” ). In the past, the Court has also described the standard for “imminent harm” as requiring the plaintiffs to show a “reasonable probability” of harm or a “threat of specific future harm.” See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153–55 (2010) (finding that conventional alfalfa farmers and environmental groups had demonstrated an imminent injury for standing purposes when they alleged that the Department of Agriculture’s partial deregulation of genetically engineered alfalfa crops would pose a “reasonable probability” of infecting organic conventional alfalfa crops with an engineered gene); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 184 (2000) ( “[W]e see nothing ‘improbable’ about the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” ); Laird v. Tatum, 408 U.S. 1, 13–14 (1972) ( “Allegations of a subjective ‘chill’ [of First Amendment rights based on speculation] are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; ‘the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.’” ) (internal quotation marks and citations omitted).
30: Davis v. FEC, 554 U.S. 724, 728, 734–35 (2008).
31: Id.
32: Id.
33: Id. See also Whole Woman’s Health v. Jackson, No. 21-463, slip op. at 14 (U.S. Dec. 10, 2021) (determining that healthcare providers and other opponents of the Texas Heartbeat Act, which allowed private citizens to sue parties who perform or abet abortions after a fetal heartbeat is detected, lacked standing to sue a private defendant who had attested in sworn declarations that he would not bring a private right of action against the plaintiffs). Carney v. Adams, No. 19-309, slip op. at 1, 5–6, 12 (U.S. Dec. 10, 2020) (holding that an attorney lacked standing to challenge the constitutionality of a provision in Delaware’s state constitution that required appointments to Delaware’s major courts to “reflect a partisan balance” when the attorney failed to demonstrate that he was “'able and ready’ to apply” for a judicial vacancy).