74 F.4th 986
9th Cir.2023Background
- In 2018–2019 CBP, ICE, and FBI ran "Operation Secure Line" in response to a migrant caravan and compiled records (including a PowerPoint with names/photos) identifying 67 individuals; that presentation was later leaked.
- Plaintiffs Nora Phillips, Erika Pinheiro, and Nathaniel Dennison were among the 67; each had various border encounters but the record contains no evidence linking those encounters to inclusion in the PowerPoint or other challenged records.
- Plaintiffs sued federal agencies and officials, alleging: (1) First Amendment violations (collection/maintenance of records about protected association/speech) and (2) a Fourth Amendment violation as to Dennison (an alleged unlawful detention), and sought expungement of records.
- The district court granted summary judgment for the government, holding plaintiffs lacked Article III standing to seek prospective injunctive relief/expungement; plaintiffs appealed.
- The Ninth Circuit affirmed, holding that retention of records alone does not constitute the concrete, particularized injury required for standing; plaintiffs failed to show additional concrete harm or a sufficiently imminent risk of future harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government retention of unlawfully obtained records alone is a concrete injury sufficient for Article III standing to seek expungement | Retention itself is an ongoing, per se injury giving standing to expunge unlawfully obtained records | Retention alone is not a concrete, particularized injury; plaintiffs must show a material risk of future tangible harm or an injury analogous to traditional harms | Retention alone is insufficient; no standing without additional concrete harm or risk |
| Whether plaintiffs showed a substantial risk of future harm (e.g., further surveillance, detention, reputational harm, or dissemination) from retention | Records subject plaintiffs to an unnecessary risk of future detention, scrutiny, and chilling of First Amendment activities | The record contains no evidence government will use records, no likely dissemination to harmful third parties, and the data is largely non‑sensitive/public | Plaintiffs failed to show imminent/substantial risk of future harm; speculative risk and subjective chill are inadequate |
| Whether alleged underlying constitutional collection violations change the standing analysis for expungement relief | Constitutional violations in collection (First/Fourth) mean retention perpetuates injury and thus suffices for standing to seek expungement | Even if collection violated rights, standing still requires a concrete injury beyond mere retention; constitutional claims do not automatically confer standing for expungement | Court rejected per‑se rule; plaintiffs did not identify a cognizable ongoing constitutional or common‑law privacy harm tied to retention and thus lack standing |
Key Cases Cited
- City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (Article III case-or-controversy and standing prerequisites)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing: injury‑in‑fact, causation, redressability)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (intangible injuries must be concrete to support standing)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (mere retention or procedural violation does not necessarily establish concrete injury)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (standing requires certainly impending or substantial risk of future harm)
- Mayfield v. United States, 599 F.3d 964 (9th Cir. 2010) (retention of materials derived from unlawful search may constitute ongoing injury where privacy interests are implicated)
- Norman‑Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260 (9th Cir. 1998) (retention of highly intimate medical information implicated privacy and conferred standing)
- Fazaga v. FBI, 965 F.3d 1015 (9th Cir. 2020) (expungement may be available to vindicate constitutional rights, but did not resolve standing from retention alone)
- Patel v. Facebook, Inc., 932 F.3d 1264 (9th Cir. 2019) (statutory privacy/biometric harms can be concrete when analogous to recognized common‑law torts)