Shameca Robertson v. Allied Solutions, LLC
Shameca Robertson v. Allied Solutions, LLC
Opinion
Employers rarely extend job offers without first checking the applicant's background and references. They are free to conduct such checks, but they must follow certain rules. Many of those rules come from the Fair Credit Reporting Act (FCRA or Act),
At this juncture we accept Robertson's allegations, but we still must examine whether Allied's alleged violations of the Act caused her any concrete injury. Because the answer is in part "yes," we reverse the dismissal for lack of jurisdiction of one of Robertson's claims and remand for further proceedings. The district court's dismissal of the other claim was proper, because its authority to adjudicate must exist before it can resolve the case, even if that resolution is nothing more than a fairness hearing under Federal Rule of Civil Procedure 23(e), followed by approval of a settlement.
I
Robertson applied for a position with Allied. It offered her the job, but it ran a background check before she reported to work. Ordinary background checks qualify as consumer reports under the FCRA. See 15 U.S.C. § 1681a(d)(1). Allied thus was required to alert Robertson "clear[ly] and conspicuous[ly]" of its intent to obtain the report and to secure her consent.
Certain "non-conviction information" (the nature of which is immaterial for present purposes) turned up in the course of Robertson's background check. This information prompted Allied to revoke the job offer. A representative from its human resources department passed that word along to Robertson. She alleges that the representative told her only that the offer was being rescinded "because of information in her 'criminal background check' report." An employer that relies in any measure on a background check for an adverse employment decision (including rescinding a job offer, see
She responded with this lawsuit. Her complaint includes two claims, each on behalf of a distinct subclass. First, she sued Allied for failing to furnish clear and conspicuous disclosure forms. We call this the notice claim. Second, she sued Allied for taking an adverse employment action based on her background check without first supplying a copy of the report or a written summary of her FCRA rights. This is her adverse-action claim.
After mediation in April 2016, the parties reached a tentative settlement agreement. A month later, the Supreme Court decided
Spokeo, Inc. v. Robins
, --- U.S. ----,
Eventually the district court dismissed the entire case for lack of standing. It held that Groshek compelled that result for Robertson's notice claim. With respect to the adverse-action claim, the court ruled that because Robertson had not pleaded facts connecting the lost offer with Allied's failure to turn over a copy of the background report, it too had to be dismissed. Had Robertson pleaded, for example, that the report was inaccurate or that she favorably could explain the report's content, the court indicated that it might have ruled that she sustained an Article III injury. It refused to permit her to amend her complaint because she never indicated what facts she could allege that would support jurisdiction. She now appeals.
II
The Constitution confines "the judicial Power" of the federal courts to "Cases" and "Controversies." U.S. CONST. art. III, § 2. Courts police this limit through the standing doctrine, among others. Standing to bring a suit in federal court depends on the plaintiff's having suffered an injury in fact, which she can trace to the defendant's challenged conduct, and which can be redressed by a favorable judicial decision.
Spokeo
,
An Article III injury may exist solely because a defendant infringes a congressionally created right.
Lujan v. Defenders of Wildlife
,
On appeal, Robertson challenges the district court's standing decision only with respect to her adverse-action claim, which arises under section 1681b(b)(3)(A). (We *695 express no opinion on the question whether Robertson would have suffered a concrete injury if she had alleged only that Allied did not tender written notice of her rights before taking adverse action. The problem with that argument is that it describes only a procedural injury. Robertson did not indicate how, if the procedures had properly been followed, she might have persuaded Allied to hire her. With or without written notice of her rights, Robertson would not have become an Allied employee.) She characterizes her adverse-action injury as one fitting the informational-injury model. By withholding her background report, she says, Allied limited her ability to review the basis of the adverse employment decision and impeded her opportunity to respond. The ability to respond, she contends, is the substantive purpose for which the Act compels employee disclosure.
We review the legal arguments about Robertson's Article III standing
de novo
.
Lewert v. P.F. Chang's China Bistro, Inc.
,
The FCRA regulates the use of materials such as these background reports. Robertson relies on section 1681b(b)(3)(A) for her adverse-action claim. That subsection (to which we refer as "subpart A") provides:
[B]efore taking any adverse action based in whole or in part on [a consumer report used for employment purposes], the person intending to take such adverse action shall provide to the consumer to whom the report relates-
(i) a copy of the report; and
(ii) a description in writing of the rights of the consumer under this subchapter ....
As one can see, there is no reference to potential inaccuracies or any other specific reason for the disclosure. This contrasts markedly with the following paragraph, section 1681b(b)(3)(B) ("subpart B"), which creates an exception from subpart A for employers taking an adverse action against an applicant who applies by mail, telephone, or computer for a position regulated by the Secretary of Transportation (
e.g.
, truck drivers). An employer of would-be
*696
truck drivers, for example, has no duty to provide a copy of the actual report; it is enough to notify the applicant that an adverse action was based on the report. 15 U.S.C. § 1681b(b)(3)(B)(i)(I). The employer must also notify the applicant that she may "request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report."
Only subpart (A) compels disclosure of the report itself, and that provision requires disclosure prior to any adverse action. This unique pre-adverse action requirement assures that the applicant will have a chance to review the actual document on which the employer relied, and that she can do so with time to respond to unfavorable information. Unlike subpart (B), which explicitly limits the range of disputes to "accuracy or completeness," subpart (A) contemplates a broad opportunity to respond.
Subparts (A) and (B), read together, indicate that an employer's disclosure obligations under (A) exist to serve interests beyond the problem of inaccurate reports. Other parts of the Act corroborate that conclusion. In order to see why this is so, it is helpful to recall that the Act identifies at least three distinct actors with respect to any consumer report. A consumer reporting agency aggregates data and creates the report. Agencies then supply reports to users ( e.g. , employers), which rely on them to decide the fate of consumers ( e.g. , job applicants).
The interests protected by the Act's disclosure rules reflect the distinctive roles played by the three types of actors. Agencies' disclosure obligations protect consumers' interest in accurate reporting. The Act's agency-specific compliance procedures instruct that reports must be compiled to "assure maximum possible accuracy."
The Act does not similarly link accuracy concerns and the disclosure obligations imposed on "users." Quite the opposite. The section of the Act entitled "Requirements on users of consumer reports" refers to accuracy only to require that users instruct consumers to lodge accuracy-based disputes with the agency.
Providing context may be more valuable than contesting accuracy. Some consumers may collect supporting documents quickly enough to corroborate an accuracy challenge before the employer makes its decision. Yet in a swearing contest, the employer might not be likely to side with the consumer (applicant) over the agency. But information that seems damning at first glance might not be so bad in context. A person with a spotted record might convince an employer to revisit its decision if she can explain what happened.
That Robertson has not pleaded what she may have said if given the chance to respond, or that she may not have convinced Allied to honor its offer, is immaterial to the substance of her interest in responding. Article III's strictures are met not only when a plaintiff complains of being deprived of some benefit, but also when a plaintiff complains that she was deprived of a chance to obtain a benefit.
Czyzewski v. Jevic Holding Corp.
, --- U.S. ----,
Spokeo
does not require a contrary result. There the Court hypothesized that there might not be any concrete harm when "a consumer reporting agency fails to provide the required notice to a user of the agent's consumer information, [but] that information ... may be entirely accurate."
Spokeo
,
We conclude, therefore, that Robertson has alleged enough at this stage to demonstrate standing under Article III. Her injury is concrete and particular to her, and the remaining criteria for standing (causation, redressability) are also present. This is not to say that she is home-free, of course. We express no opinion at this point on questions such as her suitability to serve as the class representative, the propriety of class certification, or the adequacy of the proposed settlement. We hold only that she has adequately alleged that what Allied divulged was insufficient under the Act, and that she is entitled from an *698 Article III standpoint to press her adverse-action claim.
III
Although Robertson does not argue that she has standing to bring her notice claim, she takes the position that the district court was nonetheless empowered to approve the settlement agreement, as it pertains to notice, because the parties reached their tentative settlement before the Article III issue was noticed. She would like us to order the district court to resume the Rule 23(e) process and consider whether to approve the settlement. This is an ambitious claim, given that the district court's subject-matter jurisdiction must be secure before it can do
anything
to resolve a case. That rule applies with just as much force to a court's approval of a settlement under Rule 23 as it does for anything else. See
Synfuel Techs., Inc. v. DHL Express (USA), Inc.
,
Robertson offers two reasons why the general rule should not apply here, notwithstanding the notice claim's Article III problems. The first is that her concrete interest in the agreement supports jurisdiction. See
Schumacher v. SC Data Ctr., Inc.
, No. 2:16-CV-04078-NKL,
Robertson's second argument is that post-agreement legal changes do not warrant unsettling a valid agreement. This argument also falls apart for several reasons.
Spokeo
did not change the law of standing and thus was not a post-agreement change in the law. It merely reiterated that an Article III injury must be both particular and concrete.
IV
That leaves only the question whether Robertson should have been permitted
*699
to amend her complaint. The district court denied her request-a decision we review for abuse of discretion.
Huon v. Denton
,
V
Based on information discovered in a background check, Allied rescinded Robertson's job offer without furnishing Robertson a copy of that report on which it relied. By failing to do so, Allied deprived her of the chance to review it and present her side of the story. That is the very reason why the FCRA obligates employers to produce a copy of the report before taking adverse action. Because the alleged injury is concrete and Robertson otherwise alleged enough to support her Article III standing on her adverse-action claim, we REVERSE the judgment of the district court dismissing that claim for lack of standing and REMAND for further proceedings. In all other respects, the judgment of the district court is AFFIRMED .
Reference
- Full Case Name
- Shameca S. ROBERTSON, on Behalf of Herself and All Others Similarly Situated, Plaintiff-Appellant, v. ALLIED SOLUTIONS, LLC, Defendant-Appellee.
- Cited By
- 88 cases
- Status
- Published