Long v. Se. Pa. Transp. Auth. , 903 F.3d 312 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 17-1889
______
FRANK LONG; JOSEPH SHIPLEY;
MICHAEL WHITE,
Individually and on Behalf of All Others Similarly Situated,
Appellants
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E. D. Pa. No. 2-16-cv-01991)
District Judge: Honorable Petrese B. Tucker
______
Argued December 12, 2017
Before: CHAGARES, RESTREPO and FISHER, Circuit
Judges.
(Filed: September 10, 2018)
Cheryl-Lyn D. Bentley
Adam T. Klein
Christopher M. McNerney
Ossai Miazad
Lewis M. Steel
Outten & Golden
685 Third Avenue, 25th Floor
New York, NY 10017
Benjamin D. Geffen
Public Interest Law Center of Philadelphia
1709 Benjamin Franklin Parkway
United Way Building, 2nd Floor
Philadelphia, PA 19103
Jon M. Greenbaum
Dariely Rodriguez
Lawyers' Committee for Civil Rights Under Law
1500 K Street, Suite 900
Washington, DC 20005
Deepak Gupta [ARGUED]
Gupta Wessler
1900 L Street, .N.W., Suite 312
Washington, DC 20036
2
Ryan A. Hancock
Willig Williams & Davidson
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Counsel for Appellants
Jamie M. Gullen
Community Legal Services
1424 Chestnut Street
Philadelphia, PA 19102
Counsel for Amicus Appellants Community Legal
Services, National Employments Law Project and Service
Employees International Union Local 668
James A. Francis
Francis & Mailman
100 South Broad Street
Land Title Building, 19th Floor
Philadelphia, PA 19110
Counsel for Amicus Appellant National Consumer Law
Center
Michael A. Cognetti
Candidus K. Dougherty
Jeffrey B. McCarron
Swartz Campbell
50 South 16th Street
Two Liberty Place, 28th Floor
Philadelphia, PA 19102
3
Elizabeth A. Malloy [ARGUED]
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
This case raises again the frequently-litigated question
of whether violation of a statute—here, the Fair Credit
Reporting Act—is an injury in fact that satisfies the
Constitution’s “case or controversy” requirement. The District
Court concluded that the plaintiffs did not allege a concrete
injury in fact and therefore dismissed their complaint for lack
of jurisdiction. We affirm in part and reverse in part.
I. Background
The complaint alleges the following facts. The three
named plaintiffs were convicted of drug offenses in the
relatively distant past: Michael White in 2006 and 2007,
Joseph Shipley in 2001, and Frank Long in 1997. More
recently, Plaintiffs applied to Southeastern Pennsylvania
Transportation Authority (SEPTA) for jobs that involved
operating vehicles. Each Plaintiff filled out a form disclosing
4
his criminal history and authorizing SEPTA to obtain a
background check. Initially, Plaintiffs’ job applications
seemed to meet with success: each received an offer or was
given information about when to start training.
Ultimately, though, SEPTA denied employment to
Plaintiffs. SEPTA told Long he was not hired because of “the
information SEPTA had received from [the] background
check.” App. 28 (Complaint ¶ 47). SEPTA told White and
Shipley they were not hired because of their “criminal history.”
App. 29, 31 (Complaint ¶¶ 57, 69). When Shipley requested
more information, SEPTA sent a letter saying that for positions
that “require the operation of . . . vehicles,” SEPTA has a
“categorical lifetime ban” on hiring anyone convicted of a
crime “involving the possession, sale, distribution,
manufacture and use of controlled substances.” App. 29-30
(Complaint ¶ 58).
SEPTA did not send Plaintiffs copies of their
background checks before it decided not to hire them. Nor did
it send them notices of their rights under the Fair Credit
Reporting Act (FCRA). The FCRA, however, required SEPTA
to send both before it denied them employment. 15 U.S.C.
§ 1681b(b)(3). Plaintiffs filed a putative class action complaint
based on these two FCRA violations, as well as other claims
not at issue here.
SEPTA moved to dismiss the complaint. The District
Court granted the motion and dismissed for lack of standing. It
concluded there was only a “bare procedural violation,” not a
concrete injury in fact, because Plaintiffs alleged that SEPTA
denied them jobs “based on their criminal history, which
Plaintiffs disclosed prior to SEPTA procuring their background
checks.” Long v. Se. Pa. Transp. Auth., No. CV 16-1991, 2017
WL 1332716, at *4 (E.D. Pa. Apr. 5, 2017). “Additionally,”
5
the court noted, “Plaintiffs do not allege that their reports were
inaccurate in any way.” Id. The court concluded that “SEPTA’s
purported FCRA violations did not cause the type of harm to
Plaintiffs, or present any material risk of harm, that would give
rise to a de facto injury.” Id. The court did not reach SEPTA’s
argument that Plaintiffs failed to state a claim under Rule
12(b)(6).
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. §
1331 and 15 U.S.C. § 1681p. This Court has jurisdiction to
review the District Court’s final order under 28 U.S.C. § 1291.
We exercise plenary review over a district court’s dismissal of
a complaint under Rule 12(b)(1) for lack of standing. In re
Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012).
III. Analysis
Plaintiffs allege that SEPTA violated the FCRA by
taking adverse employment action without providing copies of
their background checks or notices of their rights under the
FCRA. SEPTA argues that Plaintiffs lack standing because
they were not harmed by what the District Court ruled were
“bare procedural violations” of the statute. To determine
whether the violations were “bare” and “procedural,” or
whether they were concrete injuries in fact, we will first
examine the statute to ascertain what rights it confers. Next, we
will examine the factual allegations in the complaint. Finally,
with the FCRA and the facts in hand, we will analyze whether
Plaintiffs have standing.
A. The Statute
The FCRA provides that “before” a potential employer,
like SEPTA, takes “any adverse action based in whole or in
6
part” on a consumer report, it “shall provide” the person who
is the subject of the report with “(i) a copy of the report; and
(ii) a description in writing of the rights of the consumer under
[the FCRA].” 15 U.S.C. § 1681b(b)(3)(A). An adverse action
includes “a denial of employment.” Id. § 1681a(k)(1)(B).
Criminal background checks are “consumer reports,” i.e.,
“written . . . communication” that bears on “a consumer’s
credit worthiness, credit standing, credit capacity, character,
general reputation, personal characteristics, or mode of living”
and “is used or expected to be used or collected in whole or in
part for the purpose of serving as a factor in establishing the
consumer’s eligibility for . . . employment purposes . . . .” Id.
§ 1681a(d)(1).1
Plaintiffs argue that the statute prohibits adverse
employment actions based on consumer reports that an
individual has not had the opportunity to review or discuss with
the potential employer. SEPTA, on the other hand, argues that
the statute protects only against adverse employment action
that is based on inaccurate or misleading information.
SEPTA’s position is that Plaintiffs’ consumer reports were
accurate and therefore they suffered no injury in fact. SEPTA
is incorrect, however. As we now explain, the statute confers a
broader right than simply to be free from adverse action based
on inaccurate information.
Following the Supreme Court’s directives, we “look to
the text of the statute, rather than the legislative history, to
interpret a statute or determine legislative intent as an aid to
interpretation.” Thorpe v. Borough of Thorpe, 770 F.3d 255,
1
SEPTA has not disputed that the background checks
at issue here are consumer reports.
7
263 (3d Cir. 2014).2 The text of § 1681b(b)(3) requires not just
that the employer “shall provide” the consumer report and
FCRA rights disclosure, but that it must do so “before taking
any adverse action.” 15 U.S.C. § 1681b(b)(3)(A). The statute
should be construed so that words and phrases are not
“superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534
U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167,
174 (2001)). The phrase “before taking any adverse action”
should, therefore, have some purpose, and this purpose is
illuminated by the congressional findings incorporated into the
statute’s text. 15 U.S.C. § 1681.
Congress found that “[c]onsumer reporting agencies
have assumed a vital role in assembling and evaluating . . .
information on consumers.” Id. § 1681(a)(3). Therefore,
“[t]here is a need to ensure that [they] exercise their grave
responsibilities with fairness, impartiality, and a respect for the
consumer’s right to privacy.” Id. § 1681(a)(4); see also
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016), as revised
(May 24, 2016) (“The FCRA seeks to ensure ‘fair and accurate
credit reporting.’” (quoting 15 U.S.C. § 1681(a)(1))). “To
achieve this end, the Act regulates the creation and the use of
2
Given our focus on the statutory text, we do not find
persuasive Plaintiffs’ citation of Thomas v. FTS USA, LLC,
193 F. Supp. 3d 623, 633 (E.D. Va. 2016), which relies
heavily on the FCRA’s legislative history. In “rare cases,”
reliance on legislative history is warranted because “‘the
literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.’”
Thorpe, 770 F.3d at 263 (quoting First Merchs. Acceptance
Corp. v. J.C. Bradford & Co., 198 F.3d 394, 402 (3d Cir.
1999)). Plaintiffs do not argue, nor do we perceive, that this is
such a case.
8
consumer reports . . . for certain specified purposes, including
. . . employment.” Spokeo, 136 S. Ct. at 1545 (internal
quotation marks and footnote omitted). “‘These consumer
oriented objectives support a liberal construction of the
FCRA,’ and any interpretation of this remedial statute must
reflect those objectives.” Cortez v. Trans Union, LLC, 617 F.3d
688, 706 (3d Cir. 2010) (quoting Guimond v. Trans Union
Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995)).
The required pre-adverse-action copy of an individual’s
consumer report allows him to ensure that the report is true,
and may also enable him to advocate for it to be used fairly—
such as by explaining why true but negative information is
irrelevant to his fitness for the job. The required pre-adverse-
action notice of FCRA rights provides the individual with
information about what the law requires with regard to
consumer reports. The advance notice requirement, then,
supports both accuracy and fairness. It helps ensure that reports
are properly used and relevant for the purposes for which they
are used.
SEPTA argues that § 1681b(b)(3) protects only against
adverse action based on inaccurate information, but the
subsection is not so narrow. See 15 U.S.C. § 1681b. The right
to pre-adverse-action disclosures serves all of the purposes
discussed above: accuracy, relevancy, proper utilization, and
fairness. The individual’s right to dispute and correct consumer
reports is provided elsewhere, see 15 U.S.C. § 1681i, so
according to the statute’s structure, § 1681b is not limited to
situations where the report is inaccurate. In addition, it would
not make sense for § 1681b(b)(3) to apply only to inaccurate
information, because the consumer cannot know whether his
report is accurate unless it is disclosed to him. Finally, if
Congress meant to provide protections only against the use of
inaccurate consumer reports, it could have written the statute
9
to say so. The meaning of § 1681b(b)(3) is plain: before an
employer takes adverse action based in any part on a consumer
report, the consumer has a right to receive a description of his
rights under the FCRA, as well as a copy of his report,
regardless of its accuracy.3
SEPTA also argues that Congress did not intend
§ 1681b(b)(3) to protect against non-disclosure where the
adverse action would have been taken regardless of any
opportunity to comment. SEPTA asserts that Plaintiffs’
criminal histories categorically disqualified them for the driver
positions they sought, so the opportunity to respond would
have made no difference. However, the FCRA does not
condition the right to receive a consumer report on whether
having the report would allow an individual to stave off an
adverse employment action. Rather, the statute applies to all
consumers.4
In sum, § 1681b(b)(3) confers on the individual a right
to receive, before adverse action is taken, a copy of his or her
consumer report (regardless of its accuracy) and a notice of his
or her rights. This right permits individuals to know
3
The Seventh Circuit very recently considered this
question and arrived at the same conclusion. Robertson v.
Allied Solutions, LLC, --- F.3d ---, 2018 WL 4113815, at *4
(7th Cir. 2018) (“[A]n employer’s disclosure obligations
under [15 U.S.C. § 1681b(b)(3)(A)] exist to serve interests
beyond the problem of inaccurate reports.”).
4
See Robertson, 2018 WL 4113815, at *5 (where a
prospective employer revoked a job offer based on a
background check without providing the plaintiff a copy of
the background check, the fact that the plaintiff may not have
been able to convince the prospective employer to honor its
offer was “immaterial” to the standing analysis).
10
beforehand when their consumer reports might be used against
them, and creates the possibility for the consumer to respond
to inaccurate or negative information—either in the current job
application process, or going forward in other job applications.
B. The Complaint
A district court entertaining a Rule 12(b)(1) motion to
dismiss for lack of standing must first ascertain whether it
“presents a ‘facial’ attack or a ‘factual’ attack on the claim at
issue, because that distinction determines how the pleading
must be reviewed.” Constitution Party of Pa. v. Aichele, 757
F.3d 347, 357 (3d Cir. 2014) (quoting Schering Plough, 678
F.3d at 243). “A facial attack . . . considers a claim on its face
and asserts that it is insufficient to invoke the subject matter
jurisdiction of the court . . . .” Id. at 358. A court ruling on a
facial attack considers only the complaint, viewing it in the
light most favorable to the plaintiff. Id. A factual attack, in
which the defendant contests the truth of the jurisdictional
allegations, is a different matter: the court need not treat the
allegations as true, and a plenary trial is held to resolve any
material factual disputes. Id.; Schuchardt v. President of the
U.S., 839 F.3d 336, 343 (3d Cir. 2016).
In passing, SEPTA invokes the standard for a factual
attack, declaring without elaboration that Plaintiffs’ allegations
are not entitled to the usual presumption of truth. Appellee’s
Br. 9. However, SEPTA never made a factual attack. It “filed
the attack before it filed any answer to the Complaint or
otherwise presented competing facts,” so its motion is, “by
definition, a facial attack.” Constitution Party, 757 F.3d at 358;
see also Long, 2017 WL 1332716, at *3 (“SEPTA . . . does not
challenge the factual assertions in the Complaint.”). Therefore,
we apply the familiar standard and assume the truth of
Plaintiffs’ allegations. Schuchardt, 839 F.3d at 343.
11
Although the District Court articulated the correct
standard, it did not actually “accept as true all of [Plaintiffs’]
plausible allegations, and draw all reasonable inferences in
[their] favor.” Id. For example, the court stated that Plaintiffs
alleged that SEPTA denied them jobs because of what they
disclosed about their own criminal histories. 2017 WL
1332716, at *4. However, Plaintiffs clearly allege that SEPTA
denied them jobs because of their background checks. App. 28
(Complaint ¶ 47, alleging that Long received a letter from
SEPTA indicating that he was not hired because of
“information SEPTA had received from [the] background
check”); App. 29 (Complaint ¶ 56, alleging that Shipley was
told “not to report to work, and that his background check had
not been cleared”); App. 31 (Complaint ¶ 68, alleging that
SEPTA did not begin training White because it was “waiting
on the results of his background check”).
The District Court also failed to construe Plaintiffs’
allegations in the light most favorable to them. It adopted the
view (espoused by SEPTA) that their drug convictions
categorically barred them from the jobs for which they applied.
Plaintiffs allege, however, that SEPTA might have changed its
decision if they had the chance to respond to their background
checks. The District Court was required to assume the truth of
this allegation.
C. Standing
The law on standing is well developed, and several
recent cases analyze standing in the context of alleged
violations of federal privacy statutes. We begin by surveying
Supreme Court and Third Circuit precedent to establish the
relevant standing principles. We then apply the law to the facts
of this case and conclude that the District Court erred, in part,
in dismissing the complaint for lack of standing.
12
1. Spokeo
Under Article III of the United States Constitution, the
power of the judiciary “extends only to ‘Cases’ and
‘Controversies.’” Spokeo, 136 S. Ct. at 1547. The standing
doctrine defines what is a “case” or “controversy.” Id. Article
III standing requires (1) an injury in fact, (2) a causal
connection between the injury and the defendant’s conduct,
and (3) a likelihood that a favorable decision will provide
redress for the injury. Finkelman v. Nat’l Football League, 810
F.3d 187, 193 (3d Cir. 2016). Injury in fact is “‘the invasion of
a concrete and particularized legally protected interest’
resulting in harm ‘that is actual or imminent, not conjectural or
hypothetical.’” Id. (quoting Blunt v. Lower Merion Sch. Dist.,
767 F.3d 247, 278 (3d Cir. 2014)). An injury is “concrete” if it
is “real, or distinct and palpable, as opposed to merely
abstract.” Id. (quoting N.J. Physicians, Inc. v. President of the
U.S., 653 F.3d 234, 238 (3d Cir. 2011)).
In Spokeo, the plaintiff alleged violations of the FCRA
provision that requires consumer reporting agencies to “follow
reasonable procedures to assure maximum possible accuracy.”
136 S. Ct. at 1545 (quoting 15 U.S.C. § 1681e(b)). The plaintiff
alleged that he was out of work and that inaccuracies in his
consumer report represented “imminent and ongoing actual
harm to his employment prospects,” but he did not allege that
any particular employer declined to hire him because of the
inaccuracies. Id. at 1554 (Ginsburg, J., dissenting) (alterations
omitted). The Court ruled that the injury was “particularized”
because it “affect[ed] the plaintiff in a personal and individual
way.” Id. at 1548 (majority opinion) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). The
Court emphasized, however, that particularity is not sufficient
to show injury in fact; concreteness is also required. Id.13
Therefore, it went on to explain what a concrete injury is and
is not.
A concrete injury is “de facto;” it “actually exist[s],”
though it need not be “tangible.” Id. at 1548-49. “In
determining whether an intangible harm constitutes injury in
fact, both history and the judgment of Congress play important
roles.” Id. at 1549. The historical inquiry asks whether an
intangible harm “has a close relationship” to one that
historically has provided a basis for a lawsuit, and the
congressional inquiry acknowledges that Congress’s judgment
is “instructive and important” because that body “is well
positioned to identify intangible harms that meet minimum
Article III requirements.” Id.
While Congress “may ‘elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were
previously inadequate in law,’” id. (quoting Lujan, 504 U.S. at
578), standing “requires a concrete injury even in the context
of a statutory violation,” id. Therefore, a “bare procedural
violation, divorced from any concrete harm,” cannot “satisfy
the injury-in-fact requirement of Article III.” Id. The Court
reaffirmed, however, that “the risk of real harm” can show
concreteness. 136 S. Ct. at 1549. As examples, it cited common
law causes of action for “harms [that] may be difficult to prove
or measure,” such as slander per se. Id. It also reaffirmed that
“the violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact.”
Id.Having laid out principles of concreteness, the Court
remanded to the Ninth Circuit for it to consider whether the
14
plaintiff’s particularized injury was also concrete, as required
for standing. Id. at 1550.5
2. Third Circuit Precedent
When discussing standing, we have noted that “the
injury-in-fact element is not Mount Everest. The contours of
the . . . requirement, while not precisely defined, are very
generous, requiring only that claimant allege some specific,
identifiable trifle of injury.’” In re Horizon Healthcare Servs.
Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017)
(alterations omitted) (quoting Blunt, 767 F.3d at 278).
Moreover, “[t]he Supreme Court has repeatedly affirmed the
ability of Congress to ‘cast the standing net broadly’ and to
grant individuals the ability to sue to enforce their statutory
rights.” Id. at 635 (quoting Fed. Election Comm’n v. Akins, 524
U.S. 11, 19 (1998)). It is perhaps unsurprising, then, that our
four recent cases analyzing standing under privacy statutes
“have been decidedly in favor of allowing individuals to sue to
remedy violations of their statutory rights, even without
additional injury.” Id. at 636.
5
On remand, the Ninth Circuit had “little difficulty”
concluding that the plaintiff’s injury was concrete. Robins v.
Spokeo, Inc., 867 F.3d 1108, 1114 (9th Cir. 2017). Given the
“ubiquity and importance of consumer reports,” a consumer’s
livelihood is threatened by an inaccurate report. Id.Additionally, the individual interests at issue “resemble other
reputational and privacy interests that have long been
protected in the law,” namely, the interest in avoiding
“intangible harms caused by . . . untruthful disclosures.” Id. at
1114-15 (citing In re Horizon Healthcare Servs. Inc. Data
Breach Litig., 846 F.3d 625, 638-41 (3d Cir. 2017)).
15
In the first case, which preceded Spokeo, the plaintiffs
sued under the Wiretap Act, the Stored Communications Act,
and the Computer Fraud and Abuse Act, alleging that Google
put cookies on their web browsers despite its statements to the
contrary. In re Google Inc. Cookie Placement Consumer
Privacy Litig., 806 F.3d 125, 130, 133 (3d Cir. 2015). The
defendants argued there was no economic loss and hence no
injury in fact. Id. at 134. We ruled that injury in fact does not
require any “particular type of harm,” and “may exist solely by
virtue of statutes creating legal rights.” Id. (quoting Havens
Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982)). The
plaintiffs’ “specific” allegations of “concrete, particularized,
and actual” injury were sufficient to confer standing. Id. at 134-
35.
In the second case, which post-dated Spokeo, the
plaintiffs sued under the Wiretap Act, the Stored
Communications Act, and the Video Privacy Protection Act,
alleging that the defendants unlawfully used cookies to track
children’s internet history. In re Nickelodeon Consumer
Privacy Litig., 827 F.3d 262, 269-71 (3d Cir. 2016). This Court
concluded that Spokeo did not “alter our prior analysis in
Google” or “call[] into question whether the plaintiffs . . . have
Article III standing.” Id. at 273-74. Plaintiffs’ harm was
concrete because it “involve[d] a clear de facto injury, i.e., the
unlawful disclosure of legally protected information.” Id. at
274.
The third appeal involved the theft of a computer
containing the plaintiffs’ personal health information. Horizon,
846 F.3d at 629. The plaintiffs sued under the FCRA, arguing
that the unauthorized disclosure was, “in and of itself, an injury
in fact,” even absent any allegation that the information had
been misused. Id. at 634. We noted that Google and
Nickelodeon, which “provide welcome clarity” on standing,
16
are “decidedly in favor of allowing individuals to sue to
remedy violations of their statutory rights, even without
additional injury.” Id. at 636. We also stated that Spokeo does
not “redefin[e] the injury-in-fact requirement,” but “[i]nstead
. . . reemphasizes that Congress ‘has the power to define
injuries that were previously inadequate in law.’” Id. at 638
(citation omitted).
We applied Spokeo’s “two tests for whether an
intangible injury can . . . be ‘concrete.’” Id. at 637. We looked
first to history—“whether ‘an alleged intangible harm’ is
closely related ‘to a harm that has traditionally been regarded
as providing a basis for a lawsuit.’” Id. (quoting Spokeo, 136
S. Ct. at 1549). We explained that the defendant’s actions did
not need to “give rise to a cause of action under common law;”
it was enough that “the ‘intangible harm’ that FCRA seeks to
remedy ‘has a close relationship’” to the historical tort of
invasion of privacy. Id. at 639-40 (quoting Spokeo, 136 S. Ct.
at 1549). Applying Spokeo’s second test, the congressional
test, we concluded that because the disclosure of the plaintiffs’
private information was closely related to a historical tort, it
was “within Congress’s discretion to elevate . . . into a concrete
injury.” Id. at 640 n.23. Therefore, the plaintiffs had not
“allege[d] a mere technical or procedural violation of FCRA,”
but “instead the unauthorized dissemination of their own
private information—the very injury that FCRA is intended to
prevent.” Id. at 640 (footnote omitted). Accordingly, the
plaintiffs had standing. Id. at 641.
In our fourth and final case, the plaintiff sued under the
Telephone Consumer Protection Act (TCPA) after receiving a
single unsolicited call on her cell phone. Susinno v. Work Out
World Inc., 862 F.3d 346, 348 (3d Cir. 2017). We
reemphasized that “[w]hen one sues under a statute alleging
‘the very injury the statute is intended to prevent,’ and the
17
injury ‘has a close relationship to a harm traditionally
providing a basis for a lawsuit in English or American courts,’
a concrete injury has been pleaded.” Id. at 351 (internal
alterations omitted) (quoting Horizon, 846 F.3d at 639-40).
The injury passed the congressional test because an unsolicited
cell phone call was “the very harm that Congress sought to
prevent,” and it passed the historical test because the TCPA
“protect[s] essentially the same interests” as the common law
tort of intrusion upon seclusion. Id. Therefore, the plaintiff
“alleged a concrete, albeit intangible, harm under the Supreme
Court’s decision in Spokeo and our decision in Horizon.” Id. at
352.
3. Application
A plaintiff must “demonstrate standing for each claim
he seeks to press.” Neale v. Volvo Cars of N. Am., LLC, 794
F.3d 353, 359 (3d Cir. 2015) (quoting DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006)). Plaintiffs allege that
SEPTA violated the FCRA by (i) taking adverse action without
first providing copies of their consumer reports, and (ii) taking
adverse action without first providing descriptions of their
FCRA rights. 15 U.S.C. § 1681b(b)(3)(A)(i), (ii). SEPTA
18
argues that Plaintiffs lack standing because these alleged harms
are not injuries in fact.6
Plaintiffs have standing to assert their first claim—that
SEPTA failed to provide copies of their consumer reports.
Under Spokeo’s congressional test, the FCRA clearly
expresses Congress’s “intent to make [the] injury redressable.”
Horizon, 846 F.3d at 637. Congress granted the consumer a
right to receive a copy of his report before adverse action is
taken, and provided for statutory damages plus attorney’s fees
for willful noncompliance, which Plaintiffs allege here. 15
U.S.C. §§ 1681b(b)(3), 1681n; Horizon, 846 F.3d at 639
(Congress “allowed for statutory damages for willful
violations—which clearly illustrates that Congress believed
that the violation of FCRA causes a concrete harm to
consumers.”). This harm was within Congress’s power to
elevate to an injury in fact.7 “Although it is possible to read . . .
6
SEPTA also argues, as an alternative ground for
affirmance, that Plaintiffs failed to allege the other two
standing requirements: “a sufficient causal connection
between the injury and the conduct complained of” and “a
likelihood that the injury will be redressed by a favorable
decision.” Finkelman, 810 F.3d at 193 (quoting Neale, 794
F.3d at 358-59). However, Plaintiffs plausibly alleged that
SEPTA denied them employment at least in part because of
their consumer reports, App. 43, 44 (¶¶ 120,129), and any
injury would be redressable through statutory damages.
7
We caution that Congress cannot elevate any
insubstantial injury into a concrete injury merely by the
legislative act of providing a remedy. See Meyers v. Nicolet
Rest. of De Pere, LLC, 843 F.3d 724, 727 n.2 (7th Cir. 2016)
(“A violation of a statute that causes no harm does not trigger
a federal case. That is one of the lessons of Spokeo.”).
19
Spokeo as creating a requirement that a plaintiff show a
statutory violation has caused a ‘material risk of harm’ . . . , we
do not believe that the Court so intended to change the
traditional standard for the establishment of standing.”
Horizon, 846 F.3d at 637-38 (footnote omitted) (quoting
Spokeo, 136 S. Ct. at 1550). Moreover, taking an adverse
employment action without providing the required consumer
report is “the very harm that Congress sought to prevent,
arising from prototypical conduct proscribed” by the FCRA.
Susinno, 862 F.3d at 352 (internal quotation marks omitted).
Spokeo’s second test, the historical test, assesses
whether the injury in question has a close relationship to a harm
traditionally recognized under common law. Horizon, 846 F.3d
at 639. A perfect common-law analog is not required. Id. We
ask whether the “newly established causes of action protect
essentially the same interests” as “traditional causes of action.”
Susinno, 862 F.3d at 351.
Common-law privacy rights were historically
understood as being invaded by “(a) unreasonable intrusion
upon the seclusion of another, . . . (b) appropriation of the
other’s name or likeness, . . . (c) unreasonable publicity given
to the other’s private life, . . . or (d) publicity that unreasonably
places the other in a false light before the public . . . .”
Restatement (Second) of Torts § 652A(2)(a)-(d) (1977). These
latter three types of privacy torts represent interference with an
individual’s ability to control his personal information. That is
analogous to the injury here, which is the use of Plaintiffs’
personal information—their consumer reports—without
Plaintiffs being able to see or respond to it. Therefore, the
second Spokeo test, the historical test, is also met. Because the
statute meets both tests, and because Plaintiffs have alleged
sufficient concrete harm, they have standing to bring their
20
claim that SEPTA did not provide them with the required
copies of their consumer reports.8
SEPTA points to hypotheticals in Spokeo to argue that
Plaintiffs’ injury is bare and procedural, and thus not a concrete
injury-in-fact. In Spokeo, the Court said that certain FCRA
violations would “result in no harm,” such as where a
consumer report contains an immaterial inaccuracy like an
incorrect zip code, or where the report is “entirely accurate”
but its use is not disclosed. Id. at 1550. SEPTA contends that—
as in the second hypo—Plaintiffs’ consumer reports were
accurate, even if they did not receive the required notice.
SEPTA’s argument, however, depends on its view that the sole
purpose of the § 1681b(b)(3) disclosures is to allow the
correction of inaccuracies. As we have explained, supra
Part III.A, the right to the disclosures is the same whether the
report is accurate or not. Spokeo naturally focused on accuracy;
the plaintiff there had alleged that his consumer report was
inaccurate and therefore violated a different provision of the
FCRA, § 1681e(b). Spokeo’s focus on accuracy in connection
with an alleged § 1681e(b) violation does not negate the
language and purpose of § 1681b(b)(3), which is at issue here.
We turn next to SEPTA’s alleged failure to notify
Plaintiffs of their FCRA rights. Plaintiffs argue that this was a
concrete harm because it “increased the risk that . . .
individuals would not know of their FCRA rights and have
their claims lapse before they could bring suit.” Appellants’ Br.
29. Under the principles outlined above, this is a “bare
8
The Seventh Circuit concluded, as do we, that a
plaintiff has standing to sue based on allegations that she did
not receive the pre-adverse action notice required by
§ 1681b(b)(3). Robertson, 2018 WL 4113815, at *5.
21
procedural violation, divorced from any concrete harm,” that
cannot “satisfy the injury-in-fact requirement of Article III.”
Spokeo, 136 S. Ct. at 1549. Plaintiffs became aware of their
FCRA rights and were able to file this lawsuit within the
prescribed limitations period, so they were not injured.9
Other federal appeals courts have deployed reasoning
similar to ours, and have arrived at results consistent with this
one—albeit in decisions regarding a different FCRA
requirement. See Groshek v. Time Warner Cable, Inc., 865
F.3d 884, 887 (7th Cir. 2017) (cited with approval in
Robertson, 2018 WL 4113815); Syed v. M-I, LLC, 853 F.3d
492, 499-500 (9th Cir. 2017). In both Groshek and Syed, the
defendants disclosed that they would be obtaining consumer
reports, but the disclosures were not in the format the FCRA
requires. Groshek lacked standing because he did not allege
that he failed to understand the disclosure. Groshek, 865 F.3d
at 887. Syed had standing because he alleged he failed to
understand the disclosure, and that if he had understood it, he
would not have signed a liability waiver. Syed, 853 F.3d at 499-
500. Plaintiffs are similar to Groshek, and like him, they lack
standing, because although they did not receive FCRA rights
disclosures, they understood their rights sufficiently to be able
to bring this lawsuit.
Plaintiffs also argue that the lack of an FCRA notice
“increased the risk of harm to . . . the putative class.”
Appellants’ Br. 29 (internal quotation marks omitted).
9
A consumer may bring an action under the FCRA
“not later than the earlier of--(1) 2 years after the date of
discovery by the plaintiff of the violation that is the basis for
such liability; or (2) 5 years after the date on which the
violation that is the basis for such liability occurs.” 15 U.S.C.
§ 1681p.
22
Plaintiffs thus imply that unnamed class members remained
unaware of their FCRA rights. However, “[n]amed plaintiffs
who represent a class must allege . . . that they personally have
been injured, not that injury has been suffered by other,
unidentified members of the class . . . .” Horizon, 846 F.3d at
634 (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)).
Therefore, any harm to unnamed class members cannot
constitute injury in fact.
IV. Conclusion
For these reasons, we affirm the dismissal of Plaintiffs’
claim based on SEPTA’s failure to provide them with notice of
their FCRA rights as required by 15 U.S.C.
§ 1681b(b)(3)(A)(ii). We reverse the dismissal of Plaintiffs’
claim based on SEPTA’s failure to provide them with copies
of their consumer reports as required by 15 U.S.C.
§ 1681b(b)(3)(A)(i), and we remand for further proceedings.
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