Milbourne v. JRK Residential America, LLC, No. 3:2012cv00861 - Document 67 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/10/2015. (sbea, )
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Milbourne v. JRK Residential America, LLC Doc. 67 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA MAR I I 2015 Richmond Division CLtHK U^. UlS TRICT COURT —Richmond va DERRICK A MILBOURNE, ^ ' On his own behalf and On behalf of those Similarly situated, Plaintiff, V. Civil Action No. JRK RESIDENTIAL AMERICA, 3:12cv861 LLC, Defendant. MEMORANDUM OPINION This FOR matter SUMMARY (Docket No. is before JUDGMENT 53) the (Docket and the reply set forth below, Court No. on 47), the the (Docket No. DEFENDANT'S Plaintiff's 57) . MOTION response For the reasons the motion will be denied. FACTUAL BACKGROUND Derrick A. Milbourne ("Milbourne") filed a complaint on behalf of himself and all others similarly situated that alleged that Defendant two sections JRK of Residential the Fair America, Credit Inc. ("JRK") Reporting Act Milbourne applied for and conditionally received a after obtain completing a consumer application report on paperwork Milbourne. that ("FCRA"). job with JRK permitted Docket After JRK obtained Milbourne's consumer report, violated No. JRK 1 to at 1. i t rescinded its Dockets.Justia.com offer to hire Milbourne. that JRK did JRK did not not Id. comply provide In this action, with the [Milbourne] FCRA's a Milbourne alleges requirements copy of the report "in that that was used as a basis for rescinding the offer of employment; that JRK did not before provide him with requesting the the notice report; it and that was required give JRK did not provide him with a description of his rights under the FCRA." at to Docket No. 19 1-2. PROCEDURAL BACKGROUND The procedural background of this case through April 7, 2014 is extensively set forth in the Court's Memorandum Opinion denying Defendant's Motion to Dismiss Docket No. classes, 15 19, at 3-5. for Lack of Jurisdiction. Thereafter, the the "Impermissible Use Class" U.S.C. (alleging § a 1681b (b) (2) (A)') violation of and 15 certified two (alleging a violation of the U.S.C. Court "Adverse Class" 1681b(b) (3) (A)^} . § Action Both ^ "(A) Except as provided in subparagraph (B) , a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless- (i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, solely of the disclosure, for employment purposes; in a document that consists that a consumer report may be obtained and (ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person. ^ (A)Except as provided in subparagraph (B) , in using a consumer report for employment purposes, before taking any adverse action 2 classes were certified based on a 2 year statute of limitations. Docket No. 55, DISCUSSION Summary judgment is proper when there is no genuine issue as to any material fact in the case such that the moving party is entitled to judgment as a matter of law. 56(c). See Fed. R. Civ. Once the moving party properly files P. and supports its motion for summary judgment, the opposing party must show that a genuine issue of fact exists. Zenith Radio Corp., A material could lead Anderson genuine v. a 475 U.S. fact jury is to 574, the of different material 586-87 existence Liberty Lobby, issue See Matsushita Elex. Inc. fact or non-existence of which U.S. only of the case. 242, 248 (1986). exists when the party has presented sufficient evidence upon which a jury could return a Co v. (1986). resolutions 477 Indus. verdict in its favor. Id. See A opposing reasonable This means that "summary judgment is only appropriate when, after discovery, the non-moving party has failed to make a 'showing sufficient to establish the existence of an element essential to that party's based in whole or in part on the report, take such adverse action shall provide the person intending to 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 prescribed (c)(3)of this t i t l e . by the Bureau under section 1681g case, and on which that party will bear the burden of proof at trial.'" BM V. at *1 U.S. (E.D. 317, Chesterfield County School Dist., Va. {quoting (1986)). 322 2010) In Celotex Corp. considering 2010 WL 145661 v. Catrett, motions for 477 summary judgment, the court must consider the evidence in the light most favorable to the non-moving Commonwealth Univ., party. 84 F.3d 672, Smith v. 675 (4th Cir. 1985). JRK moves for summary judgment on four issues. argues that "the claims of Virginia the 'Impermissible Use First, Class' it fail because JRK's authorization forms complied with both the letter and spirit of the FCRA." Docket No. 48 at 1. Second, it argues that, even if its authorization forms did not comply with the FCRA, "there is no triable issues that JRK acted Id. at 2. Third, it argues that "[t]he 'willfully.'" Adverse Action claim...fails because the class members have no private right of action under argues that [the] FCRA provision" at issue. "plaintiffs conjunction with have... failed to Id. the Adverse Action Class as it willfulness" show Finally, in well. Id. These arguments will be addressed in turn. I. JRK's Disclosure Form's FCRA Compliance 15 provided U.S.C. in § 1681b(b) (2) (A) subparagraph employment by mail, (B) telephone, requires [dealing that, with or computer], "[e]xcept applications a as for person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes, with respect to any consumer, unless: (i) a clear and conspicuous disclosure has been made in writing to the consumer at any time procured or caused to be procured, before the report is in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and (ii) writing (which authorization the consumer has authorized in may be made on the documents referred to in clause (i)) the procurement of the report by that person." (emphasis added). When Milbourne applied for a position with JRK, he signed a document that read, in part: I certify that the information contained herein is true and understand that any falsification will result in the rejection of my application or termination of my employment. requested I also understand information is that for purpose of conducting a investigation which may include the the sole background a check of my identity, work and credit history, driving records, and any criminal history which may be in the files of any state or local criminal agency.. I hereby authorize corporate affiliates, authorized verify form into all agents, this company, its employees, and representatives... to information contained in this or in my application and to inquire any character, general reputation, personal characteristics, living...I 3 its its hereby release and this mode of company, its Paragraph One is referred to as "The Disclosure. 5 corporate affiliates, its employees, its authorized agents and representatives and all others involved in this background investigation from any liability in connection with any information they give or gather and any decisions made concerning my employment based on such information. I understand that any offer of employment I may receive is contingent upon the successful completion of the background investigation. I further understand that I have a right, under Section 606(B) of the Fair Credit Reporting Act, to make a written request to this company within a reasonable period of time for a complete and accurate disclosure of the nature and scope of the investigation requested.'' Docket No. the 4 9-2 at 2 release (emphasis added). language § 1681b(b)(2)(A)'s (underlined "solely thus violates the FCRA. Milbourne alleges that of the above) disclosure" violates requirement and JRK claims that its form is compliant with the FCRA and for that reason seeks summary judgment. A. Parties' (i) Positions JRK's Argiiments JRK puts forth several theories in support of its argument that the phrase "solely of the disclosure" does not mean what it says. First, split as 'solely to of Docket No, 3645324, JRK states that "[c]ourts in the Fourth Circuit are whether the 48 at 7 at *5-6 the inclusion disclosure' of language (comparing Smith v. (W.D.N.C. a 2012) release of § Waverly Partners, with the 1681b(b) (2) (A) ." Singleton ^ Paragraph Two is referred to as "The Authorization. 6 violates v. 2012 WL Domino's Pi^, 2012 WL 245965, at *9 (D. Md. 2012)). JRK relies, the court stated, in dicta, In Smith, on which that a waiver clause resembling the one at issue here was "invalid...[but] was not so great a distraction as to discount the effectiveness of the disclosure and authorization statements [which were]... otherwise adequate." Smith, 2012 WL 3645324 at *6. held that, Thereupon, the court although the "solely" text in the FCRA rendered the waiver ineffective, but it did not otherwise cause noncompliance with the FCRA's requirements. Second, JRK makes a policy argument based on the purpose of the FCRA. It argues that § 1681b(b)(2)(A)'s "solely" requirement "is intended to ensure consumers are not Mistracted by other information side-by-side with the disclosure.'" at 7 (citing Leathers). FTC letter dated September 9, Docket No. 1998 to H. 48 Rowan From that premise, JRK argues that Milbourne has not alleged that the disclosure at issue had any negative effect on consumer understanding. Thus, so at that the "pervert disclosure Congress's disclosure language" says JRK, issue violates purpose...[by] and would if the statute is read the arguments for JRK its makes "deprive several it mandate[ing] companies guidance when trying to comply" with the FCRA. Lastly, FRCA, statutory would specific of fair Id. at 8. language-based interpretation of §1681b (b) (2) (A) . It first contends that the "solely of the disclosure" language contained in §1681b(b)(2)(A)(i) §1681(b)(2}(A)(ii), for the consumer disclosure. to define cannot what it says because, in the FCRA explicitly allows the authorization report Docket No. 'solely' mean to appear on 57, at 10. to mean the Thus, same document as the "Milbourne's proposal 'to the exclusion of all else' cannot be reconciled with the FCRA's explicit allowance of information besides Then, for 12. the disclosure on the same document." Id. at 10-11. JRK finds significant that "no specific terms are required the disclosure Instead, 'clear 'solely and of or the authorization" in the FCRA. Id. at "the statute provides the disclosure need only be conspicuous.'" the Id. disclosure' And, according language is to JRK, specific "the to the disclosure and JRK's waiver provision was in its authorization, which has no such requirement." Id. (ii) Milbourne's Argument Milbourne opposes summary judgment on the issue of whether the disclosure at issue violated the FCRA. First, Milbourne asserts that the "plain language of §1681b{b) (2)...prohibits the inclusion of a waiver of rights in the document used to disclose and obtain consent employment that a purposes." interpretation would interpretation requiring consumer report may be obtained for Docket No. offend that "all 53 the words at 8. canon in a Any of other statutory statute must be given effect and 'surplussage.'" no Id. word or phrase [can First, district treated as at 9. In making his plain language argument, several be] court in Singleton v. decisions Domino's and Milbourne relies on informal Pizza, LLC, the FTC letters. District Court of Maryland held that the "both the statutory text and the FTC advisory opinions indicate that an employer violates the FCRA by including a WL 245965, Corp., liability release in a at 2013 *9 WL (2012 D. Md.) 6231606, at disclosure document." See also *9 (W.D. Reardon v. Pa. agrees with the analysis in Singleton, 2012 ClosetMaid 2013) ("[T]he Court given the rather direct statutory language at issue...Although the disclosure itself is arguably 'clear and conspicuous' given that the title of the Authorization Form appears in bold capital letters and explains that the consumer Authorization express that requirement consists disclosure Inc., to each is simply does that solely because comply form the of for employment not the with contains at *2 "despite the FCRA comply disclosure (N.D. 111. that the in (or, a at the FCRA's document most, a NOW Health Grp., 2014) (denying a motion [Defendant's] information with Avila v. standalone purposes, appear disclosure and authorization only)"; 2014 WL 3537825, dismiss forms Form report assertion disclosure is not the contrary to the express language of the FCRA..."). that both requirement, disclosure, Next, Milbourne interpreting Haynes, to [in a on several §1681b(b)(2)(A).® Attorney, Richard (F.T.C. relies W. June Div. of Credit Hauxwell, 12, In CEO, 1998), FCRA disclosure] FTC of the Accufax staff the Haynes, Fed. Div. advised that purposes a WL "the only." inclusion Section 604(b)(2)(A) report Further, 1997 WL 33791224 staff that "[t]he a be ^solely' obtained Letter Hawkey, (F.T.C. reason may in to Harold R. of New Jersey, stated 34323756 [a waiver by the consumer of his or consumer Fed. Trade Comm'n, William Trader Comra'n 1998 that opinions from which requires that a disclosure consist disclosure employment advisory Letter Practices, her rights under the FCRA]... violate [s] the FCRA, FTC from of for William Employers Assoc. December 18, for of 1997), FTC that the requiring disclosure be in a stand-alone document is to prevent consumers from being distracted by other information side-by-side with the disclosure. matter how A disclosure that is combined with many items...no 'prominently' it appear - is not in 'in a document ^ The Eastern District of Virginia has recognized that "[t]he FTC provides Official Staff Commentary, as well as informal staff opinion letters guiding interpretation of the FCRA." Williams V. Telespectrum, Inc. 2006 WL 7067107 (E.D. Va. Nov. 7, 2006). The Supreme Court has determined that FTC opinions "do not constitute 'authoritative informal advisory guidance' on the FCRA." Singleton, 2012 WL 245965 at *9 (citing Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 70 & n.l9 (2007) (emphasis in Singleton). However, several courts have found FTC opinion letters to be persuasive when interpreting the FCRA. Id. (citing Owner-Operator Independent Drivers Ass'n, Inc. v. USIS Commercial, 537 F.3d 1184, 1192 (10th Cir. 2008); Morris v. Equifax Info. Servs. LLC, 457 F.3d 460 (5th Cir. 2006). 10 that consists solely of the disclosure.'" Clarke W. Brinckerhoff, Mainer & Herod, See also Letter from Fed Trade Comm'n, to H. Roman Leathers, available at http://www.ftc.gov/policy/advisory- opinions/advisory-opinion-leathers-09-09-98 1998)("Nothing else may appear on the (F.T.C. document Sept. that 9, detracts from the disclosure required..."). Next, Milbourne argument by addresses stating requirement is requirement that that distinct the JRK's "the from, 'clear and disclosure be inclusion of a matter how Milbourne "encourage "directly B. or an document that 53 at 16. that allowing to of the the legislative FCRA, disclosure prospective law" intent" and and may waivers are thus Thus, no be. would therefore should be the Reliance on FTC Letters deciding FCRA, should, his opposition. of the Legal Standard Before can, to, Id. at 16-17. (i) violated a Docket No. conspicuous" violations contrary prohibited. and argues future addition in intent conspicuous' waiver of rights would violate the "clear also and in made consists solely of the disclosure." the Congressional informal it rely whether is on useful the In Safeco, letter the FTC to disclosure determine letters at issue whether the here Court cited by Milbourne in the Supreme Court "rejected the use written 11 by an FTC staff member because...it staff LLC, ^explicitly opinion... not 2014 19) . binding WL 5426862, The three informal staff Hauxwell indicated at *3 letters Letter, the was merely Commission.'" {citing Safeco, cited opinions 1998 on it of by the Milbourne type WL 34323756 551 U.S. (see at informal Syed discussed (F.T.C.), an *3 v. at 70, supra) in M-I n. are Safeco. ("The views that are expressed above are those of the Commission's staff and not the views WL 33791224 informal of the Commission (F.T.C.), staff at opinions *3 and in this informal Commission."). JRK informal, "do they [Milbourne's] In staff above advisory letter argues not argument." Hawkey Letter, that, have the court opinions would be are conclusion in Safeco" because, nature not after on Safeco Singleton, approach because the have 2012 WL taken in it FCRA, the authority that "overstate abides 245965, such at Singleton by the rule not on letters to the are support to the ignore Supreme the FTC Court's "while the Safeco Court concluded numerous found and binding that the FTC advisory opinions did not constitute guidance' constitute 57 at 12. reasoned to 1997 ("The opinions set because the Doclcet No. views in Leathers Letter Singleton, advisory ("The are binding upon the Commission; forth itself."); *9 is of 12 courts interpreting opinion letters (emphasis a sound Safeco 'authoritative in and while the FCRA persuasive." original) . The reasonable one considering the views of the FTC staff to be informative, but not to be entitled to the deference that is owed to a formal Commission Opinion, (ii) Analysis There are no disputed material facts bearing on the analysis of this issue. The parties' arguments are based upon case of law, the language the statute, and the cited FTC letters. JRK is correct when it states that district the country (including in the Fourth Circuit) courts across have split as to the meaning of the word "solely" in §1681b (b) (2) (A) . 2014 WL 4344746, at *3 Syad I, (discussing the conflicting holdings); Singeton, 2012 WL 245965, at *9; and Smith, 2012 WL 3645324, at *5-6. Thus, the meaning of the term "solely of the disclosure" in § 1681b(b)(2)(A)(i) has not been definitively settled. The analysis of statutory terms begins with the text of the statute. Caminetti v. elementary instance, that be framed..."). the United States, meaning sought in of the a 242 U.S. statute language in 470, must, which 485 in ("It is the the first act is If the statutory text is clear and unambiguous, the analysis need to go no further. Id. ("Where the language is plain and admits of no more than one meaning, interpretation does not arise, and the doubtful meanings need no discussion." 13 the duty of rules which are to aid "In interpreting the plain language of a give the meaning, some terms absent different (4th Cir. 'solely' their an ordinary, 2011). Crespo "Here, indicate contemporary, indication Congress import." that a v. Holder, dictionary document intended disclosure' if the also release...These definitions define the exclusion of all else.'" to bear F.3d that 130, Singleton, the an 133 word employer ^consist solely of contained 'solely' common [them] definitions® of disclosing document [courts] [and] 631 planned to obtain a consumer report would not the statute, as, 2012 a liability inter alia, WL 245965 'to at *8 (internal citations omitted). The language of the FCRA does not qualify the word "solely" or the otherwise limit statute alone, its meaning. inclusion Thus, of a judging waiver by within the the text of document containing the disclosure would violate § 1681b(b)(2)(A)(i). The heavily, decision in Waverly is not text based, Partners, 3645324, at *6 which "to the ("[W]hile exclusion relies invalid, Waverly Partners, the waiver ® See Merriam Webster Online Dictionary (2011) as JRK but instead turned on the practical consequences of using the term at issue. WL on of all else"), - a 2012 single (defining "solely" available at http://www.merriam-webster.com; Oxford English Dictionary Online (2012) (defining "solely" as "alone" or "without any other as an associate"), available at http://www.oed.com; Webster's Third New Int'l Dictionary of the English Language 2168 (3d ed.l971) (defining "solely" as "to the exclusion of alternate or competing things"). 14 sentence within the authorization, which was kept markedly distinct from the disclosure language - was not so great a distraction as to discount the effectiveness of the disclosure and authorization statements. Accordingly, the disclosure and authorization adequate.") That are otherwise approach is contrary to the basic principle of construction that statutory terms be accorded their plain meaning. Hence, Waverly Partners is not persuasive. The text-based interpretation requirement is upon Milbourne which advised supported by individuals authorization," the in part that they it has of the informal relies. FCRA's FTC cautioned that, opinion Although "may combine the letters FTC has disclosure and the statute, the the under disclosure disclosure may not "include a waiver by the consumer of his or her rights disclosure disclosure Letter, under form consist the FCRA...[because] will violate... [the 'solely' of 1998 WL 34323756, at *1. the such a waiver requirement] disclosure." Additionally, in that a a Hauxwell an FTC informal opinion has explained that "in a document that consists solely of the disclosure" language "is intended to ensure that [the disclosure]... appears conspicuously in a document not encumbered by any other information." Leathers Letter, available at http://www.ftc.gov/policy/advisory-opinions/advisory-opinionleathers-09-09-98. That construction 15 is, of course, not binding. However, it is consistent with the plain text reading of the statutory term, and is instructive. Apparently recognizing the force argument, of the JRK contends that a disclosure' prohibit ^all text, other on terms the statute is based of argument the "[r]igid adherence to the as language appearing advocated other itself." the counter fact No. that 'solely Milbourne, than Docket the by runs document... [which] on of Milbourne's plain text would disclosure 57 to at from the very 11. This §1681b(b) (2) (A) (ii) explicitly permits the authorization to appear on the document.^ The court in Singleton disposed of that rationale when it cogently explained that: "[t]his contention, however, ignores the significance of congressional silence on an issue where Congress has otherwise spoken. Indeed, when mandating that an employer use a document that 'consists solely of the disclosure,' Congress expressly permitted employers to include language authorizing the employer to procure the consumer report...Had Congress intended for employers to include additional information in these documents, it could easily have included language to that effect in the statute. It did not do so, however, and its 'silence is controlling.'" ^ "(2) (A) Except not procure a procured, for unless - as provided ...(ii) the subparagraph consumer has authorization may be made (i)) in (B) , a person may consumer report, or cause a consumer report to be employment purposes with respect to any consumer on the authorized document in writing referred the procurement of the report by that person. 16 to in (which clause Singleton, 2012 WL 245965 at *8 (internal citations omitted) Here, as in Singleton, the Court cannot accept the view that, because Congress explicitly allowed the authorization to appear on the disclosure document, it altered the plain meaning of the word "solely". Rather, in § 1681(b)(2) (A) (ii) Congress provided a specific exemption only for the authorization only and does not permit other extraneous language on the face of the disclosure document. Moreover, JRK's argument ignores the text of the statute. §1861b(b) (2) (A) (i) states that the disclosure must be made "in a document that consists solely of the disclosure" Docket No. at 12 (emphasis extraneous added). language can There be in is the no qualification same document 57 that if the provides the disclosure is in a separate paragraph. And, JRK's argument that "the statute disclosure need only be 'clear and conspicuous'" has the effect of excising the "solely of the disclosure" language from the FCRA's statute text. imposes As explained above, two requirements: the (1) plain that language of the "clear the and conspicuous disclosure" be made "in writing," and (2) that it be made "in a document that consists solely of the disclosure." 17 It is true that some courts® have found that the "true" goal of the statute is to ensure a "clear and conspicuous" disclosure and that goal. been any other However, to requirements listed are secondary to although the policy goal of the secure clear disclosures to this FCRA may have consumers, it does so in part by including language that requires the disclosure to be in its own separate §1681b{b)(2)(A)(i), to be ignored document. That is a clear element of and nothing in the FCRA indicates that it is if the disclosure is otherwise JRK's motion "clear and conspicuous". For judgment the on foregoing the theory reasons, that its authorization for form summary satisfies "the letter and spirit of the FCRA" will be denied. II. JRK's Willfulness As I t Pertains To § 1681b(b)(2)(A)(i) Under the FCRA, a plaintiff can recover damages when a defendant has acted either negligently or willfully in violating the statute. damages in See cases § 1681n(a)(1)(A) willful 15 U.S.C. of negligent (providing noncompliance). §1681o(a)(1) In for noncompliance); statutory this (providing for actual case, damages Milbourne 15 in has U.S.C. cases of alleged only willful noncompliance by JRK and has not pled the existence e See Waverly Partners, LLC, 2012 WL 3645324, at 5-6; Burqhy v. Dayton Racquet Club, Inc., 695 F. Supp. 2d 689, 699-700 (S.D. Ohio 2010). 18 of any actual damages that would be compensated for in the case of negligent noncompliance. See Docket No. 1. JRK has moved this case for summary judgment on the issue. The Agreed Class Scheduling Order in reserved discovery on "whether Defendant's alleged violations of the FCRA were 'willful'" for Phase II discovery, which has yet to begin. Docket No. 26 at 2. Thus, any decision on the issue of JRK's willfulness would be premature at this point. FCRA willfulness is a fact-driven inquiry that cannot be decided without proper discovery by the parties. Additionally, even at this time, it appears that there is a genuine dispute of material fact on the issue of willfulness. Therefore, JRK's motion for summary judgment as to § 1668b(b)(2)(A) willfulness is denied. III. Availability of a Private Right of Action under § 1681b(b)(3) JRK argues any private that right the 2003 amendments of action to to the recover after FCRA eliminated a failure provide notice of an adverse action under §1681b{b) (3). says JRK, entitles it to "Adverse Action" class claims. summary judgment on to That, Milbourne's For the reasons set forth below, JRK's motion for summary judgment on that issue will be denied. 19 A. Parties' (i) "In Positions JRK's Arguments 2003, Congress amended the FCRA with the Fair and Accurate Credit Transactions Act [FACTA]...As part of the FACTA amendments, U.S.C. Congress eliminated private 16. JRK 15 enforcement argues §1681b(b)(3) added that warrant of § § 1681m." similarities extending 1681ra(h)(8),® Docket between the § that No. 48 1681m elimination of at and private enforcement of § 1681m to private enforcement of § 1681b(b)(3). Section 1681m requires "users of consumer reports" who are "taking adverse consumer notice reports... [to] of the § 1681m(a). requirement for actions adverse on basis action information oral, provide of written, to the contained or consumer." in electronic 15 U.S.C. JRK argues that this is similar to § 1681b(b) (3)'s that employment those "furnishing purposes... for and adverse using actions" consumer must reports provide "a copy of the report and a description in writing of the rights of the consumer... before taking any adverse or in part on the report." this similarity, JRK argues 15 U.S.C. that action based in whole § 1681b(b){3). "Congress's intent Because of to [amend ® "(8) Enforcement (A) No civil actions: Sections 1681m and I68I0 of this title shall not apply to any failure by any person to comply with this section; (B) Administrative enforcement: This section shall be enforced exclusively under section 1681s of this title by the Federal agencies and officials identified in that section." 20 § 1681b(b)(3)]...can be inferred from its elimination of [the right of private action]... for the nearly identical requirements imposed by § 1681ra(a) - there is no reason Congress would have eliminated this form of enforcement for one violation, the other." most Docket No. 48 at 17. but not This argument fails for the fundamental of reasons. To begin, courts "must presume that a legislature says in a statute what there." it means Bourdelais v. (E.D. Va. 2011), at *8. look to passed the in plain 2003, and means J.P. a statute Morgan Chase Bank, Thus, language both in what it says 2011 WL 1306311 the first task of the court it to of the §1681m and statute. When §1681b(b)(3) through a private right of action. were FACTA was enforceable However, Congress only saw fit to explicitly remove the private right of action only in § 1681m. When Congress said in § 1681m(h)(8) that "this section" was enforceable only through agency action and that "no civil action" was available, it did so in a provision applied only to the causes of action in § 1681m. There was no reference to the private cause of action in § 1681b(b)(3). read in such a reference actually said and would instead to be to opine on ignore what that what it To Congress might have "meant." It is well-established interpreting a statute is the that "the starting point for language of the statute itself. 21 Absent a clearly contrary, that conclusive." Sylvania, is no expressed language must intention ordinarily be to the regarded as Consumer Product Safety Commissions et al. v. GTE Inc. et al., "clearly 1681(b)(3) legislative what 447 U.S. 102, 108 expressed the argument must fail. legislature did Because there intent" legislative (1980). to in § do in 1681m(h)(8), § JRK's It is not the province of the Court to do what Congress could have done but did not do. IV. JRK's § 1681b(b)(3) Willfulness The last whether issue that Milbourne has JRK moves for sufficiently summary shown alleged violations under § 1681b(b)(3). judgment willfulness on for is the This is a premature motion because discovery on willfulness was reserved for later. And, in any event, there are genuine disputes of material fact that preclude summary judgment on the issue of willfulness. CONCLUSION For the foregoing reasons, SUMMARY JUDGMENT (Docket No. It is the DEFENDANT'S MOTION 47) will be denied. so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: March //? , 2015 22 FOR
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