Amicus Curiae Brief — Glen Morgan, Petitioner v. X Corp., fka Twitter, Inc.

Supreme Court briefJan 12, 2026

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No. 25-679

IN THE

GLEN MORGAN,

Petitioner,

X CORP., FKA TWITTER, INC.,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF CONGRESSMAN

MICHAEL BAUMGARTNER OF THE U.S. HOUSE

OF REPRESENTATIVES, JUSTICE RICHARD B.

SANDERS (RET.) OF THE WASHINGTON STATE

SUPREME COURT, 10 SENATORS AND

REPRESENTATIVES OF THE WASHINGTON

STATE LEGISLATURE, AND JUDGE DAVID

LARSEN (RET.) OF THE FEDERAL WAY

MUNICIPAL COURT IN SUPPORT OF

PETITIONER

SAM SPIEGELMAN

Counsel of Record

SPIEGELMAN LAW GROUP

PO Box No. 1354

New York City, N.Y. 10028

201.314.9505

sam@spiegelmanlawgroup.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES................................... ii

INTEREST OF AMICI CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .....................................................2

ARGUMENT ...........................................................4

THE NINTH CIRCUIT’S MISAPPLICATION OF

ARTICLE III STANDING THREATENS THE POSTSPOKEO/TRANSUNION PARADIGM ......................4

Article III’s “Case or Controversy”

Requirement Extends Federal Jurisdiction

to Claims, Not StatuteS ............................4

Review of This Case Will Avert an

Emerging Circuit Split .............................8

II. MISUSE OF ARTICLE III STANDING THREATENS

STATE SOVEREIGN POWER ............................... 10

A.Article III’s “Case or Controversy” Proviso

Should Be Read to Avoid the Federal

Judicial Veto of a State’s Policy Choices

Expressed Through Statute .................... 10

Overstepping Article III Jurisdiction

Erodes Public Trust in State Authority . 20

CONCLUSION ...................................................... 23

TABLE OF AUTHORITIES

Page(s)

Constitutional Provisions

U.S. Const. Art. III §1 .................................................3

U.S. Const. Art. III §2 .................................................3

U.S. Const., Amend. X............................................... 12

Statutes

740 Ill. Comp. Stat. Ann. 14/15, Biometrics

Information Privacy Act (“BIPA”) ................... 17, 18

Telephone Records and Privacy Protection Act,

Pub. L. 109-476, 120 Stat. 3568 ............................ 16

Wash. Rev. Code §9.26A.140................... 6, 8, 9, 16, 17

Cases

Ala. Ass’n of Realtors v. Dep’t Health & Human

Servs., 594 U.S. 758 (2021) .................................... 21

Ambriz v. Google, 2025 WL 830459

(N.D. Cal. Feb. 10, 2025) ....................................... 19

Arbino v. Johnson & Johnson,

880 N.E.2d 420 (Ohio 2007) ....................................5

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989).......................................... 11, 13

Baysal v. Midvale Indemnity Co.,

78 F.4th 976 (7th Cir. 2023) .............................. 9, 10

Bryant v. Compass Group USA, Inc.,

958 F.3d 617 (7th Cir. 2020).................................. 17

Casillas v. Madison Avenue Assocs., Inc.,

926 F.3d 329 (7th Cir. 2019)....................................6

Duncan v. FedEx Off. and Print Servs., Inc.,

iii

429 Ill. Dec. 190 (Ill. App. Ct. 2019)...................... 11

Gadelhak v. AT&T Servs., Inc.,

950 F.3d 458 (7th Cir. 2020)....................................5

Greer v. Ill. Hous. Dev. Auth.,

122 Ill.2d 462 (1988) .............................................. 11

Hunstein v. Preferred Collection & Mgmt. Servs.,

Inc., 48 F.4th 1236 (11th Cir. 2022) ........................9

Kline v. SouthGate Prop. Mgmt., LLC,

895 N.W.2d 429 (Iowa 2017) ................................. 11

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994)..................................................3

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2023)..................................................2

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)..................................................7

Nat’l Fed’n of Ind. Bus. v. Sebelius,

567 U.S. 519 (2012)................................................ 21

Popa v. Microsoft Corp.,

153 F.4th 784 (9th Cir. 2025) .............. 5, 8, 9, 10, 19

Printz v. United States, 521 U.S. 898 (1997) ............ 21

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ........... 4, 7

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021).................. 3, 4, 6, 7, 8, 9, 10, 12

Trump v. Anderson, 601 U.S. 100 (2024) ...................2

United States v. Lopez, 514 U.S. 549 (1995)............. 21

Vt. Agency of Nat. Res. v. United States ex rel.

Stevens, 529 U.S. 765 (2000) ...................................5

Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of

Snohomish Cnty., 459 P.2d 633 (Wash. 1969) ...... 12

Zellmer v. Meta Platforms, Inc.,

104 F.4th 1117 (9th Cir. 2024) ........................ 16, 17

Other Authorities

“Please Remain Calm,” Chernobyl,

HBO Max (May 13, 2019) ...................................... 20

Aaron-Andrew P. Bruhl, Interpreting State Statutes

in Federal Court,

98 Notre Dame L. Rev. 61 (2022) .......................... 12

Adam Flaherty & Isaiah W. Ogren, The New

Standing Doctrine, Judicial Federalism, and the

Problem of Forumless Claims,

134 Yale L.J. 1008 (2025) ........................................7

Adam Shinar, Enabling Resistance: How Courts

Facilitate Departures From the Law, and Why This

May Not Be a Bad Thing,

17 Legis. & Pub. Pol’y 989 (2014).......................... 14

Andrew Hessick, Cases, Controversies,

and Diversity, 109 Nw. L. Rev. 57 (2015) ............. 13

Benjamin W. Perry, Lauren N. Watson & Zachary V.

Zagger, U.S. Continues Patchwork of

Comprehensive Data Privacy Requirements: New

Laws Set to Take Effect Over Next 2 Years,

Ogletree Deakins (Aug. 6, 2024) ........................... 18

Bradford C. Mank, Did the Supreme Court in

TransUnion v. Ramirez Transform the Article III

Standing Injury in Fact Test?: The Circuit Split

Over ADA Tester Standing and Broader

Theoretical Implications,

57 U.C. Davis L. Rev. 1131 (2023) ........................ 19

Diego A. Zambrano, Federal Expansion and the

Decay of State Courts,

86 U. Chi. L. Rev. 2101 (2019) .............................. 10

Elizabeth C. Pritzker, Making the Intangible

Concrete: Litigating Intangible Privacy Harms in a

Post-Spokeo World, 26 Competition J. 1 (2017) ... 19

Elizabeth E. Beske, Charting a Course Past Spokeo

and TransUnion,

29 Geo. Mason L. Rev. 729 (2022) ......................... 13

Emily Stackhouse Taetzsch, Privacy Purgatory: Why

the United States Needs a Comprehensive Federal

Data Privacy Law,

50 J. of Legis. 121 (2024) ....................................... 20

Ernest A. Young, State Standing and Cooperative

Federalism,

94 Notre Dame L. Rev. 1893 (2019) ...................... 21

Ernest A. Young, States in the Separation of Powers,

48 Harv. J.L. & Pub. Pol’y 1 (2025)....................... 15

Erwin Chemerinsky, What’s Standing After

Transunion LLC v. Ramirez,

96 N.Y.U. L. Rev. Online 269 (2021)..................... 13

Gary Lawson, The Rise and Rise of the

Administrative State,

107 Harv. L. Rev. 1231 (1994) ............................... 22

Governors Kathy Hochul (N.Y.) and Michelle Lujan

Grisham (N.M), Letter to Simon Stiell, Executive

Secretary, U.N. Framework Convention on

Climate Change, Jan. 20, 2025 ............................. 22

Hana Ferrero, Identifiable to Whom? Clarifying

Biometric Privacy Rights in Illinois and Beyond,

92 U. Chi. L. Rev. 1027 (2025) .............................. 18

Ignacio Cofone, Privacy Standing,

2022 U. Ill. L. Rev. 1367 (2022)............................. 13

Irwin R. Kramer, The Birth of Privacy Law: A

Century Since Warren and Brandeis,

39 Cath. U. L. Rev. 703 (1990) ................................5

Jackson Erpenbach, A Post-Spokeo Taxonomy of

Intangible Harms, 118 Mich. L. Rev. 471 (2019)....4

John M Golden & Thomas H. Lee, Federalism,

Private Rights, and Article III Adjudication,

108 Va. L. Rev. 1547 (2022)................................... 13

Jordan Francis, Anatomy of State Comprehensive

Privacy Law: Surveying the State Privacy Law

Landscape and Recent Legislative Trends,

Report, Future of Privacy Forum (Nov. 2024) ...... 18

Philip J. Weiser, Towards a Constitutional

Architecture for Cooperative Federalism,

79 N.C. L. Rev. 663 (2001) ..................................... 14

Rebekah G. Strotman, No Harm, No Problem (in

State Court): Why States Should Reject Injury

in Fact, 72 Duke L.J. 1605 (2023) ......................... 15

Samuel D. Warren & Louis D. Brandeis,

The Right to Privacy, 4 Harv. L. Rev. 193 (1890) ...5

Tejas N. Narechania, Certiorari in Important

Cases, 122 Colum. L. Rev. 923 (2022) .....................8

THE FEDERALIST NO. 51 (James Madison)

(Jacob E. Cooke ed., 1961) ..................................... 15

Thomas B. Bennett, The Paradox of Exclusive StateCourt Jurisdiction Over Federal Claims,

105 Minn. L. Rev. 1211 (2021) .............................. 13

Thomas Hobbes, Leviathan (1651) ........................... 21

Victor E. Schwartz & Christopher E. Appel,

vii

Perspective on the Future of Tort Damages: The

Law Should Reflect Reality,

74 S.C. L. Rev. 1 (2022) ...........................................4

Wyatt Sassman, A Survey of Constitutional Standing

in State Courts, 8 Ky. J. Equine, Agric.,

& Nat. Res. L. 349 (2016) ...................................... 12

INTEREST OF AMICI CURIAE 1

Each of the signatories to this amicus brief are

either current or former elected federal, state, or local

officials of the State of Washington with a clear

interest in resolving ongoing confusion regarding the

scope Article III’s “case or controversy” proviso in the

context of state-law claims. Specifically, whether the

clause extends Article III standing to all claims that

could have been brought under the state statute cited.

State Senators Philip D. Fortunato, Mark G.

Schoesler, Nikki Torres, Keither L. Wagoner, and

(Stephen) Jeffrey Wilson; and State Representatives

Hunter M. Abell, Brian K. Burnett, Matt Marshall,

David W. Stuebe, and Jim W. Walsh are all rightly

concerned that if the Ninth Circuit’s ruling below is

allowed to stand, it will invite further federal

oversight of state laws which the people of

Washington have conferred upon them the exclusive

authority to promulgate.

Justice Richard B. Sanders, formerly of the

Washington Supreme Court, and Judge David A.

Larson, formerly of the Federal Way Municipal Court,

also take issue with the Ninth Circuit’s attempt to

extend Article III jurisdiction over a lawsuit that

involves no claims raising a federal “case or

controversy.” Their long judicial service provides

valuable

insight

into

Washington

jurists’

1 Pursuant to Rule 37, counsel for amici affirm that no counsel

for any party authored this brief in whole or part, and no person

or entity, other than amici, their members, or counsel, made any

monetary contribution to its preparation or submission. All

parties consented to, and received timely notice of, amici’s

intention to file.

understanding of their roles in relation to their federal

counterparts.

Finally, Congressman Michael Baumgartner, who

currently represents Washington’s 5th Congressional

District in the U.S. House of Representatives and

formerly represented Washington’s 6th Legislative

District in the Washington State Senate, joins as

amicus to express his serious concern with this

particular instance of federal judicial overreach. As a

Washingtonian, a former state senator, and a

standing member of the House Judiciary Committee,

including its Subcommittee on on Courts, Intellectual

Property, Artificial Intelligence, and the Internet,

Rep. Baumgartner is uniquely positioned to

illuminate the Court on the broader implications of

the ruling below and on the need for certiorari.

This Court has a long history of granting review

in cases that draw significant official attention,

especially in the realm of resolving issues implicating

the separation of powers and federalism. See, e.g.,

Trump v. Anderson, 601 U.S. 100 (2024) (granting

certiorari to determine Colorado’s disqualification of

then-former President Trump’s from 2024 election, in

part upon request of amici, including U.S. senators,

almost half the state legislatures, and several

scholarly experts on the topic); Loper Bright Enters. v.

Raimondo, 603 U.S. 369 (2023) (same, regarding

scope of federal agency authority, including over state

matters).

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Constitution vests “the judicial Power of the

United States … in one supreme Court, and in such

inferior Courts as the Congress may from time to time

ordain and establish.” U.S. Const. Art. III §1. That

blanket grant of power, though broad, is nonetheless

constrained. It extends only to “Cases” and

“Controversies.” U.S. Const., Art. III §2. This Court

has had many occasions to emphasize the

jurisdictional limits imposed by Article III. “Federal

courts are courts of limited jurisdiction. They possess

only that power authorized by Constitution and

statute, which is not to be expanded by judicial decree.

It is to be presumed that a cause lies outside this

limited jurisdiction, and the burden of establishing

the contrary rests upon the party asserting

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994) (cleaned up). Before a

removing defendant can ask a federal court to proceed

to the merits of a plaintiff’s claim, it must

demonstrate that the plaintiff’s allegations show that

the harm he claims to have suffered “has a close

relationship to a harm traditionally recognized as

providing a basis for a lawsuit in American courts—

such as physical harm, monetary harm, or various

intangible harms ….” TransUnion LLC v. Ramirez,

594 U.S. 413, 417 (2021) (cleaned up). Defendant

failed to do this here, and the Ninth Circuit’s decision

to grant federal standing nonetheless poses a serious

threat to the proper, constitutional balance of power

between the federal courts and state judiciaries and

legislatures.

ARGUMENT

THE NINTH CIRCUIT’S MISAPPLICATION OF

ARTICLE III STANDING THREATENS THE POSTSPOKEO/TRANSUNION PARADIGM

A. Article III’s “Case or Controversy”

Requirement Extends Federal Jurisdiction

to Claims, Not Statutes

To qualify for Article III standing, a plaintiff must

“have identified a close historical or common-law

analogue for their asserted injury.” TransUnion, 594

U.S. at 424. This means “assess[ing] whether the

alleged injury to the plaintiff has a ‘close relationship’

to a harm ‘traditionally’ recognized as providing a

basis for a lawsuit in American courts.” Id. (citing

Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)). One

category of traditional harm is to one’s “privacy”

interests. This kind of harm is typically intangible—

resulting in social and psychological injuries instead

of physical ones. See Jackson Erpenbach, A PostSpokeo Taxonomy of Intangible Harms, 118 Mich. L.

Rev. 471, 483 (2019) (surveying post-Spokeo circuit

rulings naming five distinct categories of intangible

harm). Thus while an intangible harm is concrete, its

extent is often harder to measure than that of a

tangible one—a car crash, for example. See Victor E.

Schwartz & Christopher E. Appel, Perspective on the

Future of Tort Damages: The Law Should Reflect

Reality, 74 S.C. L. Rev. 1, 21 (2022) (“The challenges

in attempting to accurately measure and fairly award

compensatory damages are generally far greater with

respect to awarding noneconomic damages than

economic damages. Noneconomic damages also

propose to make a person “whole” but do so by

compensating for intangible loss that lacks objective

valuation or measurement”) (citing Arbino v. Johnson

& Johnson, 880 N.E.2d 420, 437 (Ohio 2007) (“One

cannot deny that noneconomic-damages awards are

inherently subjective and difficult to evaluate.”). This

fact can complicate judicial analysis of whether

certain statutory damages claims that do not require

claimants show concrete harm nonetheless trigger

Article III standing. See Popa v. Microsoft Corp., 153

F.4th 784, 789 (9th Cir. 2025) (noting Spokeo’s

emphasis on “history as the touchstone of

concreteness”); Vt. Agency of Nat. Res. v. United States

ex rel. Stevens, 529 U.S. 765, 774 (2000) (noting that

“history is particularly relevant to the constitutional

standing inquiry since, as we have said elsewhere,

Article III's restriction of the judicial power to

“[c]ases” and “[c]ontroversies” is properly understood

to mean “cases and controversies of the sort

traditionally amenable to, and resolved by, the

judicial process”) (internal citations omitted).

The notion of intangible harms is not new to AngloAmerican law. See Gadelhak v. AT&T Servs., Inc., 950

F.3d 458, 462 (7th Cir. 2020) (Barrett, J.) (“The

common law has long recognized actions at law

against defendants who invaded the private solitude

of another by committing the tort of “intrusion upon

seclusion.”) (quoting Restatement (Second) of Torts

§652B (Am. Law Inst. 1977)). But a precise “right to

privacy” was largely absent from caselaw and

scholarship before Louis Brandeis and Samuel D.

Warren published their groundbreaking eponymous

article on the subject in 1890. See generally Irwin R.

Kramer, The Birth of Privacy Law: A Century Since

Warren and Brandeis, 39 Cath. U. L. Rev. 703 (1990)

(discussing Samuel D. Warren & Louis D. Brandeis,

The Right to Privacy, 4 Harv. L. Rev. 193 (1890)).

In any event, the issue here is not whether the

Ninth Circuit is allowed to draw historical parallels

between Wash. Rev. Code §9.26A.140 and privacy

rights that traditionally “provid[e] a basis for lawsuits

in American courts.” TransUnion, 594 U.S. at 425.

Rather, the concern is that in its zeal to confer federal

standing, the Ninth Circuit transformed a substantive

question

into

procedural

one—conferring

jurisdiction because it found that a “cause of action

available under Wash. Rev. Code §9.26A.140 is

analogous to the federally recognized injury of

disclosure of private information.” App. 72a. But that

cause of action bears no relation to those that

Petitioner alleges—that Twitter engaged in

statutorily prescribed conduct irrespective of any

concrete harms. Pet. Br. at 8. The Ninth Circuit’s

ruling is no minor mistake—at least not in view of the

potential wider implications. Lower courts cannot be

allowed to confer Article III standing on any state

statute simply because it is capable of vindicating

privacy rights. The claimant must seek to vindicate

privacy rights through the statute in the actual “case

or controversy” at bar. TransUnion, 594 U.S. at 423

(“If ‘the plaintiff does not claim to have suffered an

injury that the defendant caused and that the court

can remedy, there is no case or controversy for the

federal court to resolve.’”) (quoting Casillas v.

Madison Avenue Assocs., Inc., 926 F.3d 329, 333 (7th

Cir. 2019) (Barrett, J.)). But nowhere in the litigation

did Petitioner allege violation of his privacy rights—

or any concrete harms, for that matter. “Quite

literally” the opposite. Pet Br. at 2 (“Quite literally:

the decision below found that Morgan failed to allege

that Twitter had taken from him anything that

touched on his legitimate privacy interests, but

asserted authority over the lawsuit because a

different plaintiff could have alleged different facts

under the same state statute that could have alleged

an Article III cognizable harm. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 n.1 (1992) (“By

particularized, we mean that the injury must affect

the plaintiff in a personal and individual way.”).

If the Ninth Circuit continues following the ruling

below, then given the court’s prominence within the

federal judiciary, this could precipitate a sea-change

away from the progress Spokeo and TransUnion have

made in “mark[ing] a new era in Article III standing

doctrine focused on policing the metes and bounds of

justiciable harms.” Adam Flaherty & Isaiah W.

Ogren, The New Standing Doctrine, Judicial

Federalism, and the Problem of Forumless Claims,

134 Yale L.J. 1008, 1010 (2025). Spokeo and

TransUnion were “the first cases between private

parties in which the Court held that the harms alleged

were insufficient for federal-court jurisdiction.” Id.

That outcome is not feasible unless we first decouple

“concrete harm” from the “statutory cause of action”

that merely enables redress therefor. See TransUnion,

594 U.S. at 427 (“But under Article III, an injury in

law is not an injury in fact. Only those plaintiffs who

have been concretely harmed by a defendant’s

statutory violation may sue that private defendant

over that violation in federal court.” Id. (first

emphasis original, second emphasis added). The

ruling below turned this calculus on its head,

expanding Article III’s coverage beyond “the category

of litigants empowered to maintain a lawsuit in

federal court to seek redress for a legal wrong.”

Spokeo, 578 U.S. at 338.

B. Review of This Case

Emerging Circuit Split

Will

Avert

While Petitioner is correct that “this Court

takes no interest in the merits or demerits of a

regional circuit’s construction of a single section of a

state’s code,” Pet. Br. at 31, this case does offer a clean,

straightforward vehicle for resolving an emerging

circuit split on the application of Spokeo and

TransUnion to lawsuits involving rights and duties

created under state law. See Tejas N. Narechania,

Certiorari in Important Cases, 122 Colum. L. Rev. 923

(2022) (“In practice, the Court’s approach to docket

selection is not so extreme. It is widely understood

that the dominant standard for certiorari is conflict.

The Supreme Court is most likely to grant review

where there is a split in authority among, say, the

federal courts of appeals. This is because of a

longstanding view that federal law should be

uniform—that, for example, a federal statute should

apply the same way in Kansas City, Kansas, as it does

in Kansas City, Missouri.”).

In Popa v. Microsoft, supra, the Ninth Circuit

recently

correctly

held

that

“TransUnion

contemplates a standing inquiry particularized to a

plaintiff’s circumstances and benchmarked to a

specific tort.” 153 F.4th at 791. In the ruling below,

however, if the court did not ignore Popa, then it

certainly mistook the “benchmark to a specific tort”—

i.e., the statute invoked—for the “specific tort” itself.

The court reasoned that even if Petitioner had

properly abandoned his claim under Wash. Rev. Code

§9.26A.140(1)(a)—this still would not “divest the

district court of jurisdiction over” his sole surviving

claim, which did not allege any concrete harms, as is

needed to generate a “case or controversy” under

Article III. Pet. Br., App. at 5a. Petitioner “never

attempted to show an invasion of a legally protected

interest in his call logs.” Pet. Br. at 15. His lawsuit

was, and remains, premised solely on the Washington

Legislature’s statutory grant to impose damages for

Twitter’s alleged conduct, irrespective of the harm (or

lack thereof) to claimants themselves. Pet. Br. at 18–

19 (“Although the Washington state legislature

plainly created a private cause of action for this

conduct, allowing Morgan to seek judicial redress in

the form of statutory damages, the remedy provided

by the statute was not dependent upon a showing that

the defendant’s conduct caused “injuries with a close

relationship to harms traditionally recognized as

providing a basis for lawsuits in American courts.”)

(citing TransUnion, 594 U.S. at 425)).

As the Ninth Circuit itself acknowledges in Popa,

“[o]ur sister circuits have diverged, at least in part, in

their interpretation of Spokeo and TransUnion,

developing different tests for determining whether a

plaintiff’s injury is concrete.” 153 F.4th at 790. The

Eleventh Circuit, for example, declined to extend

Article III standing to “an intangible harm resulting

from a statutory violation.” Hunstein v. Preferred

Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1241

(11th Cir. 2022). The Seventh Circuit, in turn, rejected

the claim that license plate numbers implicate privacy

interests. Baysal v. Midvale Indemnity Co., 78 F.4th

976, 979 (7th Cir. 2023).

Applied to the case at bar, Hunstein would require

remand to state court on the grounds that Wash. Rev.

Code §9.26A.140(1)(b), as pled, is a purely “statutory

violation” that does not require a claimant to show any

concrete harms. Baysal, as well—considering the

obvious analogue between telephone and license plate

numbers. 78 F.4th at 979–80. And in it, the Seventh

Circuit acknowledged that the scope of protected

privacy rights is often a close question—“while we

have classified many potential disclosures on one side

of the [U.S. Supreme] Court’s divide or another”—the

answer lies not in the nature of the thing taken (e.g.,

a phone number or an email address), but whether a

“neutral fact derived from a public records system” or

equivalent is then used to intrude on one’s seclusion,

for example. Id. at 980.

While Popa does not directly contradict Hunstein

or Baysal, clearly the former offers enough daylight to

support a ruling that does. If the Ninth Circuit has

not, daresay, ignored Popa’s binding precedent, the

order below at best portends a growing risk that its

judges will continue misreading its Article III doctrine

straight into a circuit split.

II.

MISUSE OF ARTICLE III STANDING THREATENS

STATE SOVEREIGN POWER

A. Article III’s “Case or Controversy” Proviso

Should Be Read to Avoid the Federal

Judicial Veto of a State’s Policy Choices

Expressed Through Statute

Article III’s “bedrock requirement” does more than

assure that the federal courts “exercise ‘their proper’”

horizontal “‘function in a limited and separated

government.’” TransUnion, 594 U.S. at 423. It is also

essential to the preservation of vertical federalism,

already under serious threat from some federal

courts. See generally Diego A. Zambrano, Federal

Expansion and the Decay of State Courts, 86 U. Chi.

L. Rev. 2101 (2019) (discussing the gradual expansion

of federal jurisdiction at the expense of state courts).

In response, this Court has held, i.a., that the “case or

controversy” requirement is intrinsically narrower

than the scope of state courts’ jurisdiction. See

ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“We

have recognized often that the constraints of Article

III do not apply to state courts, and accordingly the

state courts are not bound by the limitations of a case

or controversy or other federal rules of justiciability

even when they address issues of federal law, as when

they are called upon to interpret a federal statute.”).

Several state courts have reached the same

conclusion. See, e.g., Greer v. Ill. Hous. Dev. Auth., 122

Ill.2d 462, 491 (1988) (noting that “to the extent that

[s]tate law of standing varies from [f]ederal law, it

tends to vary in the direction of greater liberality”);

Kline v. SouthGate Prop. Mgmt., LLC, 895 N.W.2d

429, 437 n.4 (Iowa 2017) (“We are not persuaded that

the Article III limit on Congress’s power to authorize

private litigation in the federal courts identified in

Spokeo applies to the same extent when the general

assembly authorizes private litigation in Iowa

courts.”); Duncan v. FedEx Off. and Print Servs., Inc.,

429 Ill. Dec. 190, 197 (Ill. App. Ct. 2019) (“Illinois

courts generally are not as restrictive as federal courts

in recognizing the standing of a plaintiff to bring a

claim. Although federal law and Illinois law both

require an ‘injury in fact’ to find standing, it does not

necessarily mean that both forums define that

requirement in the same way.”) (internal citations

and quotation marks omitted). Relevant to the case at

bar, “[i]n Washington, standing outside of

administrative law cases is generally addressed with

reference to a particular cause of action, and thus

standing does not appear to be a constitutional or

jurisdictional limitation.” Wyatt Sassman, A Survey of

Constitutional Standing in State Courts, 8 Ky. J.

Equine, Agric., & Nat. Res. L. 349, 395 (2016). What’s

more, “Washington courts may overlook any problems

of standing ‘[w]here a controversy is of serious public

importance and immediately affects substantial

segments of the population and its outcome will have

a direct bearing on the commerce, finance, labor,

industry or agriculture generally.’” Id. (quoting Wash.

Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish

Cnty., 459 P.2d 633, 635 (Wash. 1969)).

If standing requirements for state and federal

court were coterminous, first and foremost it would

permit substantial federal input into the definition of

legal rights and duties plainly “reserved” to the

exclusive purview of the states—and the people. U.S.

Const., Amend. X. But more than “mere” principle is

at stake, since federal misreadings of “state law

(incorrect by the state legislature’s lights, that is)

could undermine the substantive policies that the

legislature aimed to enact in matters touching its

citizens and territory.” Aaron-Andrew P. Bruhl,

Interpreting State Statutes in Federal Court, 98 Notre

Dame L. Rev. 61, 97 (2022). It would encourage

federal courts to engage in the exact kind of “general

legal oversight” against which the Court in

TransUnion warned—this time on a vertical instead

of horizontal axis. 594 U.S. at 423.

State legislators, including several of the amici,

take seriously their role as the originators of state

law. As do state courts, also represented among the

amici.

While

“Article

III

permitted some

encroachment on such traditional work of state courts

through its provisions for diversity jurisdiction, but

the requirement of diversity itself ensured that this

encroachment was limited. . . .” John M Golden &

Thomas H. Lee, Federalism, Private Rights, and

Article III Adjudication, 108 Va. L. Rev. 1547, 1550

(2022). Read properly, Article III’s “case or

controversy” proviso shrinks federal jurisdiction to a

far narrower set of causes of action than can be made

available through state law. Because Article III

requires a particularized injury and concrete harm

that is, or has a “close relationship” to, a harm

traditionally recognized by American courts, it is even

plausible, under ASARCO, for a cause of action

created by Congress to have standing in state court

but not federal. 490 U.S. at 617, supra (“[T]he

constraints of Article III do not apply to state

courts . . .”). See Thomas B. Bennett, The Paradox of

Exclusive State-Court Jurisdiction Over Federal

Claims, 105 Minn. L. Rev. 1211, 1237 (2021) (calling

it a “perverse result” that “state courts have the final

say about the meaning of federal law in a considerable

swath of lawsuits brought under federal law”).

Whatever one thinks of such outcomes—and there

is substantial disagreement on the theoretical scope

and actual impact of this apparent loophole 2—it is a

stark example (though hardly the only one 3) of a

2 See, e.g., Elizabeth E. Beske, Charting a Course Past Spokeo

and TransUnion, 29 Geo. Mason L. Rev. 729, 732 (2022); Erwin

Chemerinsky, What’s Standing After Transunion LLC v.

Ramirez, 96 N.Y.U. L. Rev. Online 269, 272 (2021); Ignacio

Cofone, Privacy Standing, 2022 U. Ill. L. Rev. 1367, 1372 (2022)

(“Other courts, particularly state courts free of constitutional

limitations on standing, have ruled that no harm beyond the

statutory violation is needed under some privacy statutes.”).

3 See F. Andrew Hessick, Cases, Controversies, and Diversity, 109

Nw. L. Rev. 57, 59 (2015) (“Although federal courts sitting in

broader imbalance between federal and state

jurisdiction. One weighted heavily—and properly—in

the latter’s favor, despite academic doubts. And while

it might produce some unintended consequences, the

disparity itself is far from accidental—it is essential

to the healthy operation of vertical federalism.

First, with respect to lawsuits brought under

federal law, a lower standing threshold allows state

courts to bring state executive conduct into alignment

therewith. See Adam Shinar, Enabling Resistance:

How Courts Facilitate Departures From the Law, and

Why This May Not Be a Bad Thing, 17 Legis. & Pub.

Pol’y 989, 1037 (2014) (“By giving the ultimate

decisional power to other actors”—e.g., state

officials—courts are aligning the power of public

officials with their responsibilities to develop, enact,

and implement policies in a conscientious manner

even when those may diverge from judicial

conceptions of constitutional law. In this way, courts

force political actors to internalize the costs of their

behavior. This can make courts a partner in the

project of popular constitutionalism rather than its

enemy.”). This is important because “modern

regulatory programs put in place across a variety of

fields . . . all embrace a unified federal structure that

includes a role for state implementation.” Philip J.

Weiser, Towards a Constitutional Architecture for

Cooperative Federalism, 79 N.C. L. Rev. 663, 665

(2001).

diversity are supposed to function as state courts, they cannot

hear some claims that a state court can hear, and they can hear

other claims that a state court cannot.”).

Madison himself theorized that “the great security

against a gradual concentration of the several powers

in the same department, consists in giving to those

who administer each department, the necessary

constitutional means, and personal motives, to resist

encroachment of the others.” THE FEDERALIST NO. 51,

at 349 (James Madison) (Jacob E. Cooke ed., 1961).

This is as true to vertical federalism as it is to the

horizontal form which the separation of powers

typifies. In cases involving disputation of state law,

advocates for state courts to embrace their lower

standing threshold emphasize that state-statutory

license to sue without alleging concrete harms “would

allow more litigation over state constitutional rights,

give people more power to enforce statutory rights,

and increase citizens’ involvement in state law.”

Rebekah G. Strotman, No Harm, No Problem (in State

Court): Why States Should Reject Injury in Fact, 72

Duke L.J. 1605, 1609 (2023).

Second, the more federal courts read Article III to

narrow the standing gap, the less confidence state

citizens will have in their legislatures’ power to

convert their preferred policies into prescribed rules

of conduct. This is an outcome to be avoided at all

costs. Misreading Article III to permit federal judicial

review of any state statute that could support a “case

or controversy” under facts not alleged, would

inevitably undermine public trust in the state’s

capacity to perform its fundamental work, which in

turn supplements federal authority. See Ernest A.

Young, States in the Separation of Powers, 48 Harv.

J.L. & Pub. Pol’y 1, 3 (2025) (“States play a vital role

in national politics by shaping, implementing, and

sometimes resisting national policy. Crucially, when

they do these things, states are not like just another

federal agency or private interest group; rather, they

are full-fledged governments in their own right, with

their own processes of accountability and wells of

democratic legitimacy.”).

Whenever it confers Article III standing on a claim

that does not plead concrete harms, a federal court

transforms the injury-in-fact requirement from a

jurisdictional question into a substantive one. The

Ninth Circuit’s decision to confer jurisdiction over a

claim that did not allege any concrete harm imbues all

claims made under Wash. Rev. Code §9.26A.140 with

an injury-in-fact requirement, despite Petitioner’s

total disclaimer or the Washington Legislature’s

obvious intent that the law supports a cause of action

even without alleging concrete harms. See Pet. Br. at

31 (noting that to establish Article II standing, the

court “construed the statute using methods no

Washington court has ever employed, in order to

impose a construction no Washington court would

ever agree with, “disregard[ing] most of the statutory

text, cherry-picking partial phrases,” “importing

definitions from a later-passed federal statute 4,” and

“ignoring decades-old, routinely applied state law

canons of statutory construction,” as well as “bill

reports that flatly contradict its conclusion as to the

‘intent’ of the legislature”).

One recent case in particular illustrates the depth

of the problem. In Zellmer v. Meta Platforms, Inc., 104

F.4th 1117 (9th Cir. 2024), the Ninth Circuit

4 The Ninth Circuit read into Wash. Rev. Code §9.26A.140 a

definition of “telephone records” borrowed from a federal law

that post-dated the Washington law—viz., the federal Telephone

Records and Privacy Protection Act (“TRPPA”), Pub. L. 109-476,

120 Stat. 3568.

remanded to state court a claim brought under 740 Ill.

Comp. Stat. Ann. 14/15, Illinois’ Biometrics

Information Privacy Act (“BIPA”), holding that the

claimant “never explained how he or any of the

proposed class members [were] harmed” by Meta’s

alleged collection of their “face signatures” from

photos uploaded to Facebook. Id. at 1127. The court

could and should have stopped there but instead

proceeded far into the merits, ruling that BIPA can

never be read to define “face signatures” as a

“biometric.” Id.

If it seems at all odd that a federal court

empaneled in San Francisco, California would rule on

substantive questions of state law after disclaiming

any jurisdiction over the lawsuit, you are not alone.

The court offered little solace in proclaiming to

interpret BIPA “consistent with how it would be

interpreted in Illinois courts.” Id. Fair enough, but the

Ninth Circuit only had a full picture of the local

circuit’s view because the Seventh Circuit found, in

contrast to the Ninth, that BIPA, properly pled,

conferred Article III standing. See Bryant v. Compass

Group USA, Inc., 958 F.3d 617 (7th Cir. 2020).

The upshot in Zellmer is that without jurisdiction

the Ninth Circuit simply had no business reaching the

merits of the plaintiff’s claims—an error the court

repeats below. And while the immediate stakes

appear minor—though Wash. Rev. Code §9.26A.140

arguably touches policy concerns which are at least as

serious as those behind BIPA’s passage—the potential

broader implications are anything but. States

continue to adopt and refine their digital privacy laws,

several with the explicit purpose of creating causes of

action regardless of any provable harms. See Hana

Ferrero, Identifiable to Whom? Clarifying Biometric

Privacy Rights in Illinois and Beyond, 92 U. Chi. L.

Rev. 1027, 1074 (2025) (“Taken together, these

features—a private right of action, broad standing,

and liquidated damages—give any individual

aggrieved by a technical violation of BIPA the

potential to recover substantial damages without

having to prove further harm.”). Whereas recent prodefendant rulings suggest that “the collecting entity

must itself be able to identify an individual to fall

within BIPA’s scope”—i.e., to have invaded the

privacy of a specific individual, and not that of the

public writ-large. Id. at 1029 (discussing BIPAinspired laws, and citing the Illinois statute as a

“model state law in an area notable for the absence of

uniform federal legislation”).

In an ironic twist, the absence of “uniform federal

legislation” has driven the proliferation of state

digital-privacy laws which, in turn, have drawn

unwanted attention from federal courts seeking to

harmonize such a diverse legal landscape. See id. at

1029 (noting that without congressional action, BIPA

became the spearhead of a “nationwide regulatory

regime” that “has developed around the statute, with

judges throughout the country ruling on many of the

several thousand BIPA lawsuits filed since 2018”). See

Benjamin W. Perry, Lauren N. Watson & Zachary V.

Zagger, U.S. Continues Patchwork of Comprehensive

Data Privacy Requirements: New Laws Set to Take

Effect Over Next 2 Years, Ogletree Deakins (Aug. 6,

2024), https://perma.cc/4PH4-Y9AX; Jordan Francis,

Anatomy of State Comprehensive Privacy Law:

Surveying the State Privacy Law Landscape and

Recent Legislative Trends, Report, Future of Privacy

Forum (Nov. 2024) https://perma.cc/E9FN-MWVR.

The solution to divergences in techno-privacy laws

across states is not to stretch Article III standing

beyond its clear breaking point. Instead, it is to

remand state-law questions to state court and, in

doing so, signal to Congress its vital part in replacing

the labyrinth of state-by-state regulation with a

national, uniform regime. In the meantime, the states

are merely filling a vacuum federal lawmakers are

clearly unwilling or unable to address.

The ruling below is just the latest example of the

Ninth Circuit’s scattershot approach to Article III

standing. Compare Popa, 153 F.4th at 791 (rejecting

“potential harms” as sufficient to confer Article III

standing) with Ambriz v. Google, 2025 WL 830459, at

*3 (N.D. Cal. Feb. 10, 2025) (accepting the mere

“capability” to harm plaintiff, as prescribed under

state law” as sufficient for a federal claim). See

Elizabeth C. Pritzker, Making the Intangible

Concrete: Litigating Intangible Privacy Harms in a

Post-Spokeo World, 26 Competition J. 1, 6 (2017)

(describing the Ninth Circuit’s broadly permissible

approach to standing for intangible privacy harms).

Still, as noted, other federal courts have shown

similar—if less glaring—confusion over the scope of

their jurisdiction post-Spokeo/TransUnion. See

Bradford C. Mank, Did the Supreme Court in

TransUnion v. Ramirez Transform the Article III

Standing Injury in Fact Test?: The Circuit Split Over

ADA Tester Standing and Broader Theoretical

Implications, 57 U.C. Davis L. Rev. 1131, 1171–83

(2023) (discussing incompatible rulings on Article III

standing across circuits).

The solution to a nationwide problem is

congressional action. See generally Emily Stackhouse

Taetzsch, Privacy Purgatory: Why the United States

Needs a Comprehensive Federal Data Privacy Law, 50

J. of Legis. 121 (2024) (discussing the “patchwork” of

state data-privacy laws created in the absence of

federal protections, and urging Congress to act). It is

not, i.a., for federal courts to expand their Article III

jurisdiction to capture state-statutory claims that

plainly lack the sine qua non of a federal “case or

controversy.” Review of this case offers a clear, clean

vehicle to correct course before the practice becomes

ubiquitous. See, e.g., Acheson Hotels, 601 U.S. at 21

(granting review specifically to “resolve the split”

between multiple circuits regarding the scope of

Article III standing in the context of the Americans

with Disabilities Act (“ADA”), but vacating the

judgment below on mootness grounds); see also id. at

14 (Thomas, J., concurring) (adding that the majority

should have rejected plaintiff’s ADA claims in full

because she had “not asserted a violation of a right

owed to her”).

B. Overstepping Article III Jurisdiction

Erodes Public Trust in State Authority

Consider the full impact of a “case or controversy”

test that turns on the scope of the statute involved,

rather than on the contents of the actual claims made.

In HBO’s fictionalized account of the Chernobyl

disaster of 1986, a fictionalized Chairman Gorbachev

closes an emergency politburo meeting by reminding

its members that “our power comes from the

perception of our power.” “Please Remain Calm,”

Chernobyl, HBO Max (May 13, 2019). What he meant

(had he truly said this) is that a sovereign’s power—

its ability to put its plans into motion—ultimately

hinges on the public’s abiding faith in its capacity to

exercise that power. See Thomas Hobbes, Leviathan,

Ch. XVII (1651) (defining government by consent as

“when men agree amongst themselves, to submit to

some [m]an, or [a]ssembly of men, voluntarily, on

confidence to be protected by him against all others”).

Federal overreach—legislative, administrative, or

judicial—corrodes this public trust, a fact this Court

has long recognized and has, in recent decades,

treated with increased alarm. See, e.g., United States

v. Lopez, 514 U.S. 549, 554–63 (1995) (surveying and

criticizing New Deal and post-New Deal expansion of

federal regulatory authority through dubious

“substantial relations” reading of the Commerce

Clause); Printz v. United States, 521 U.S. 898, 919–20

(1997) (admonishing attempt to compel state officials

to participate in federal registration program, noting

that the Framers “rejected the concept of a central

government that would act upon and through the

[s]tates”); Nat’l Fed’n of Ind. Bus. v. Sebelius, 567 U.S.

519, 581 (2012) (calling threat to withhold Medicaid

funds from states refusing to participate in

“Obamacare” exchanges was not a “relatively mild

encouragement” but rather a “gun to the head” that

rendered subsequent agreement involuntary); Ala.

Ass’n of Realtors v. Dep’t Health & Human Servs., 594

U.S. 758, 764 (2021) (urging federal agencies exercise

prudence when they “intrude[] into an area that is the

particular domain of state law”).

If the Court does not also intervene here, rulings

like the one below will continue to snowball until

Article III’s “case or controversy” proviso loses all of

its practical salience. This is not to exaggerate the

situation. See Ernest A. Young, State Standing and

Cooperative Federalism, 94 Notre Dame L. Rev. 1893,

1910–11 (2019) (“The post–dual federalism world,

with its concurrent regulatory jurisdiction and

cooperative regulatory structure, poses daunting

challenges for state. autonomy, but its governing

structures of legislative representation, bureaucratic

cooperation, and access to agency deliberations

provide opportunities for states to exercise continuing

influence. States have a unique and legitimate stake

in judicial action reviewing the legality of national

action within this modern framework”). Though

threatened, the sovereignty of America’s constituent

states is still far stronger than those of their on-paper

counterparts in other proclaimed “federal” systems

like Argentina, Ethiopia, or the Russian Federation.

So much stronger, it seems, that states have even

begun implementing international accords without

federal approval. See Governors Kathy Hochul (N.Y.)

and Michelle Lujan Grisham (N.M), Letter to Simon

Stiell, Executive Secretary, U.N. Framework

Convention on Climate Change, Jan. 20, 2025,

https://perma.cc/NAZ8-LCAN (confirming state-level

compliance with international climate-change

benchmarks despite federal withdrawal).

But American federalism is far from infallible.

Federal agencies have done much of the heavy lifting

aggrandizing national power at the expense of the

states. See generally Gary Lawson, The Rise and Rise

of the Administrative State, 107 Harv. L. Rev. 1231

(1994) (surveying the ratcheting expansion of federal

power, starting at the New Deal). Article III courts

clearly are not immune to this compulsion. Nor are

the stakes any lower in the judicial realm than they

are in the legislative or executive. Indeed, in at least

one respect they are higher: Federal courts can in one

fell swoop extend their jurisdiction over entire

categories of plaintiffs and claims in ways that

individual pieces of legislation simply cannot.

As discussed, Article III’s “case or controversy”

requirement is designed, in part, to ensure federal

courts stay in their inherently narrow constitutional

lane. Expanding federal jurisdiction to capture state

claims that do not meet this requirement poses

serious risks to the ongoing survival of an American

federalism that is already experiencing its fair share

of turbulence. And this case provides a clean, clear

vehicle for this Court to set the record straight.

CONCLUSION

For the reasons discussed above, and for those set

forth in the Petition for Review, the Court should

grant certiorari and remand this case to Spokane

County Superior Court for lack of federal jurisdiction.

Respectfully submitted,

JANUARY 2026