Osama Abdelfattah v. DHS , 787 F.3d 524 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2014 Decided May 15, 2015
No. 12-5322
OSAMA ABDELFATTAH,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01842)
Erica L. Ross, appointed by the court, argued the cause as
amicus curiae for appellant. With her on the briefs were
David W. DeBruin and Paul M. Smith, appointed by the court.
Osama Abdelfattah, pro se, filed the briefs on behalf of
appellant.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Wyneva Johnson, Assistant U.S. Attorney, entered
an appearance.
2
Before: BROWN and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Osama Abdelfattah filed a
complaint identifying twenty-one causes of action against the
United States Department of Homeland Security, several of
its divisions, unnamed federal officials, and unnamed private
individuals. Abdelfattah’s claims stem from the
Government’s collection, maintenance, and use of
information about him. The district court granted the federal
defendants’ motion to dismiss each of Abdelfattah’s claims—
some for lack of jurisdiction and some for failure to state a
claim on which relief may be granted. We affirm the district
court’s judgment as to all claims except those brought under
the Fair Credit Reporting Act.
I
A
When reviewing a motion to dismiss, we “treat the
complaint’s factual allegations as true” and “must grant [the
plaintiff] the benefit of all inferences that can be derived from
the facts alleged.” Atherton v. D.C. Office of Mayor, 567 F.3d
672, 677 (D.C. Cir. 2009). The facts set forth below are
compiled from the First Amended Complaint, Abdelfattah’s
Response in Opposition to the Motion to Dismiss or in the
Alternative Motion to Amend the Complaint, two affidavits
filed by Abdelfattah, and the exhibits attached thereto. We
may consider the affidavits and exhibits in this appeal because
they were filed by a pro se litigant and were intended to
clarify the allegations in the complaint. Id. (considering
3
affidavits and exhibits filed by a pro se litigant when
evaluating a motion to dismiss); see also Greenhill v.
Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007) (consideration
may be given to “supplemental materials filed by a pro se
litigant in order to clarify the precise claims being urged”).
The district court considered the affidavits and exhibits under
similar reasoning, Abdelfattah v. U.S. Dep’t. of Homeland
Sec., 893 F. Supp. 2d 75, 76 n.2 (D.D.C. 2012), and neither
the parties nor Amicus have raised an objection.
Mr. Abdelfattah, a Jordanian national, has lived in the
United States since 1996, when he arrived on a student visa to
attend the University of Bridgeport. While a student, he lived
in a shared apartment with several roommates. For a six-
month period in or around 1998, one of his roommates was a
man who later became a person of interest in the investigation
of the September 11, 2001 terrorist attacks. Abdelfattah did
not know this man prior to living with him and has had no
further communications with him, although he is aware that
the man was arrested for fraud and deported.
Abdelfattah graduated with a master’s degree in
computer engineering in 1998 and accepted a job with an
employer who sponsored his work visa. In December 2001,
he submitted an I-485 application to adjust his immigration
status to that of a permanent resident. He also submitted an I-
765 application for employment authorization, which was
approved for a one-year period expiring in January 2003. At
some point in 2002, Abdelfattah moved to New Jersey and
again filed an I-765 to renew his employment authorization.
When this application had not been approved by early 2003,
he phoned the United States Department of Homeland
Security’s (“the Department” or “DHS”) Citizenship and
4
Immigration Services’ (“USCIS”) Vermont Service Center.1
Abdelfattah was informed that he was the subject of a
“security background check” and that the amount of time
needed to process his I-765 application was therefore
“unknown.” First Amend. Compl. ¶ 123. He visited
immigration offices on multiple separate occasions attempting
without success to obtain an interim employment
authorization document. Each time he experienced a lengthy
wait, and once he got into an argument with an immigration
officer who threatened to call the police.
In September 2003, after a visit to an immigration office
where he was “detained for about 8 hours but let go,” id. ¶
129, Abdelfattah obtained an interim employment
authorization valid for eight months. In January 2004,
Abdelfattah accepted a software engineering job with a
company on Long Island, New York. In February 2004, DHS
granted a four-month extension on Abdelfattah’s employment
authorization but did not send him the corresponding card.
Abdelfattah’s employment authorization was again extended
in May 2004, this time for another eight months.
In June 2004, Abdelfattah moved to New York, and DHS
approved his I-485 application and instructed him to appear at
an immigration office in New York for Green Card
processing. On July 2, 2004, Abdelfattah went to the
immigration office and provided documentation, including his
notice to appear, interim employment authorization document,
and passport, to an immigration officer who fingerprinted him
and asked him to wait. While waiting with his wife and one-
1
USCIS is a unit of the Department. Abdelfattah has named the
Department and several of its divisions as defendants. We refer to
the Department and its various divisions collectively and
interchangeably as “the Department” or “DHS.”
5
year-old daughter in a room full of people, Abdelfattah was
approached by six immigration officers with two dogs. He
complied when asked to accompany one of the officers to a
separate room where he was searched, his wallet’s contents
were examined, and he was questioned about his immigration
status and employment.
Two Federal Bureau of Investigation (“FBI”) agents
arrived and questioned Abdelfattah about his former
roommate. The agents then asked a series of questions
including whether Abdelfattah had weapons training, where
he had traveled, if he prayed, whether he gave money to
charity, and what he thought about Americans. Finally, the
agents inquired about his willingness to work as an FBI
informant. He gave the agents the names of and contact
information for some of his family and friends. After the
interview ended, Abdelfattah proceeded to the Alien
Documentation, Identification, and Telecommunications
(“ADIT”) unit and demanded that an immigration officer
stamp his passport.2 The officer refused, stating his
application for permanent resident status had been approved
by mistake. The officer returned Abdelfattah’s passport, but
kept his notice to appear and interim employment
authorization document.
In September 2004, DHS visited both Abdelfattah’s
workplace and his home, inquiring about him at each location.
On September 10, 2004, Abdelfattah returned to the New
2
“[A]n ADIT stamp mark is placed in an alien’s passport at a port
of entry or at an [immigration] . . . district office; . . . this stamp
mark serves as temporary proof of lawful permanent residence in
the United States” and functions as “authorization for employment,
such that a passport with an ADIT stamp mark can be used as
identification to obtain a valid Social Security card.” United States
v. Polar, 369 F.3d 1248, 1250 n.1 (11th Cir. 2004).
6
York immigration office with his counsel to request the ADIT
passport stamp. After Abdelfattah waited in the office for six
hours, an immigration officer then marked his passport with a
stamp valid for 60 days. The officer advised him that the
ADIT unit would be investigating the names he had used and
his former addresses. In December 2004, an FBI agent
contacted Abdelfattah via telephone and threatened him with
deportation if he did not agree to work as an FBI informant.
In May 2005, Abdelfattah sought another stamp for his
passport at the New York immigration office. Officials
refused. He filed suit against the federal government in the
Eastern District of New York and reached a settlement under
the terms of which Abdelfattah agreed to drop the lawsuit in
exchange for an ADIT stamp valid for one year. While
Abdelfattah did not immediately receive a physical Green
Card, he does claim to currently possess one. Decl. of
Abdelfattah ¶ 2 (Mar. 18, 2012).
Mr. Abdelfattah submitted a Freedom of Information Act
(“FOIA”) request for records pertaining to his I-485
application. After filing a FOIA lawsuit in the Eastern
District of New York, he received 337 pages of information in
March 2005. The FOIA response included a Significant
Incident Report outlining the events of July 2, 2004. The
report stated Abdelfattah was an “exact match on a terrorism
lookout,” Mtn. to Amend Compl. Ex. A, and that a TECS
record indicated Abdelfattah may be associated with an
individual, whose name is redacted, who was arrested in
December 2001 for document fraud.
TECS, which is no longer an acronym but once stood for
“Treasury Enforcement Communication System,” is a federal
government database containing “temporary and permanent
enforcement, inspection and intelligence records relevant to
the anti-terrorism and law enforcement mission of U.S.
7
Customs and Border Protection and numerous other federal
agencies that it supports.”3 Privacy Act of 1974; U.S.
Customs and Border Protection – 011 TECS System of
Records Notice, 73 Fed. Reg. 77,778, 77,779 (Dec. 19, 2008).
TECS records are retained for 75 years “from the date of
collection of the information or for the life of the law
enforcement matter to support that activity and other
enforcement activities that may become related.” Id. at
77,782.
The response to his FOIA request also contained a
Memorandum of Investigation dated September 24, 2004
stating Abdelfattah had been referred for investigation based
on a possible match in TECS and that he “may be linked to
terrorist/National Security activities” according to a record in
TECS. Mtn. to Amend Compl. Ex. B. The report concludes
that after further investigation, the “trace hit” for Abdelfattah
was “negative” and that the “[c]ase is closed for IBIS hit
purposes.” Id. The FOIA response documents included
another Memorandum of Investigation discussing DHS’s visit
to Abdelfattah’s place of work and home, several redacted
TECS database entries regarding Abdelfattah, a list of
Abdelfattah’s previous addresses, and a computer screen shot
of data entry fields filled with Abdelfattah’s driver’s license
numbers, credit card number, and notation of the type and
issuer of the credit card. In September 2007, Abdelfattah
wrote to several DHS divisions requesting the TECS records
be expunged. He did not receive a response.
Abdelfattah suffers a malady common to exiles—the
longing to go home. His sense of being a stranger in a strange
land is exacerbated by his belief that he has been subjected to
3
U.S. Customs and Border Protection is a division of the
Department.
8
years of unjustified scrutiny and harassment. Abdelfattah’s
experiences with DHS have left him depressed. He is
reluctant to travel outside the United States, because he fears
he will not be permitted to reenter or that he may be tortured
or killed by a foreign government. As of March 2012,
Abdelfattah had not seen his siblings for ten years. He has
expended significant resources on attorney’s fees in fifteen
lawsuits he has filed against the United States government.
B
Abdelfattah filed this suit pro se on October 11, 2007.
His amended complaint identifies twenty-one causes of
action. Abdelfattah claims unidentified companies and their
employees provided—and DHS received—Abdelfattah’s
address history, driver’s license number, and credit card
number in violation of the Privacy Act of 1974, 5 U.S.C. §
552a, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.,
and the Right to Financial Privacy Act, 12 U.S.C. § 3401 et
seq. Abdelfattah further asserts that DHS’s creation and
maintenance of the TECS records violates the Fifth
Amendment to the Constitution. As relief, Abdelfattah seeks
monetary awards for the alleged statutory violations, and
expungement of the TECS records for the alleged
constitutional violations.
In addition to these claims, Abdelfattah raised, and the
district court dismissed, Fifth Amendment equal protection
claims, along with claims brought under the Declaratory
Judgment Act, 28 U.S.C. § 2201(a), the Gramm Leach Bliley
Act, 15 U.S.C. §§ 6801 et seq., and 42 U.S.C. § 1983.
However, since neither Abdelfattah nor court-appointed
Amicus pursue these claims on appeal, they are forfeited. See
American Wildlands v. Kempthorne, 530 F.3d 991, 1001
(D.C. Cir. 2008) (stating issues not argued in the opening
9
brief are forfeited on appeal). Abdelfattah also asserted a
Fourth Amendment claim, a Due Process reputation-plus
claim, and an Administrative Procedure Act, 5 U.S.C. §
706(2)(A), claim below but did not pursue them on appeal,
and Amicus’s references to these claims constitute “cursory
arguments made only in [] footnote[s]” which we need not
consider and deem forfeited. Hutchins v. Dist. of Columbia,
188 F.3d 531, 539–40 n.3 (D.C. Cir. 1999); see also CTS
Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote
is no place to make a substantive legal argument on appeal;
hiding an argument there and then articulating it only in a
conclusory fashion results in forfeiture.”).
In September 2012, the district court dismissed
Abdelfattah’s claims. Abdelfattah, 893 F. Supp. 2d at 76.
The district court first found TECS exempt from any relevant
Privacy Act requirements and accordingly dismissed
Abdelfattah’s Privacy Act claims for lack of jurisdiction. Id.
at 81. The district court next dismissed the constitutional
claims, related to the Department’s failure to amend or delete
its TECS records, for failure to state a claim upon which relief
could be granted. The court explained these claims were
“‘encompassed within the remedial scheme of the Privacy
Act’ and so cannot be brought separately when Privacy Act
claims are available.” Id. at 81–82 (quoting Chung v. U.S.
Dep’t of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003)). In the
alternative, the district court found Abdelfattah’s factual
allegations insufficient to state any plausible claim.
Abdelfattah, 893 F. Supp. 2d at 82. The district court then
found Abdelfattah failed to state a Fair Credit Reporting Act
claim, because collection of information such as an
individual’s name, address history, and credit card number is
not prohibited by the Act. Id. at 82–83. Finally, the court
found Abdelfattah failed to plead sufficient factual allegations
to state a Right to Financial Privacy Act claim. Id. at 83.
 10
This appeal followed. After receiving supplemental
briefing, a special panel of this court denied the Appellees’
Motion for Summary Affirmance and appointed amicus to
represent Abdelfattah. Order, Abdelfattah v. Dep’t of
Homeland Security, No. 12-5322 (D.C. Cir. Feb. 8, 2014).
The district court exercised jurisdiction over this case
pursuant to 28 U.S.C. § 1331, and we have jurisdiction to
review its final order under 28 U.S.C. § 1291.
We review the district court’s “dismissal of claims for
want of subject matter jurisdiction under Rule 12(b)(1) or for
failure to state a claim under Rule 12(b)(6)” de novo. El Paso
Natural Gas Co. v. United States, 750 F.3d 863, 874 (D.C.
Cir. 2014) (citing Kim v. United States, 632 F.3d 713, 715
(D.C. Cir. 2011)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. “A document filed pro se is to be liberally
construed, . . . and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (internal quotation marks omitted). Even still, a
pro se complaint “must plead factual matter that permits the
court to infer more than the mere possibility of misconduct.”
Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal
quotation marks omitted).
11
II
Under the Privacy Act, an agency may “maintain in its
records only such information about an individual as is
relevant and necessary to accomplish a purpose of the agency
required to be accomplished by statute or by executive order
of the President” and is required to “collect information to the
greatest extent practicable directly from the subject individual
when the information may result in adverse determinations
about an individual’s rights, benefits, and privileges under
Federal programs.” 5 U.S.C. § 552a(e)(1), (2). Under some
circumstances, however, an agency may “exempt certain of
[its] systems of records from many of the obligations [the
Privacy Act] imposes.” Skinner v. U.S. Dep’t of Justice, 584
F.3d 1093, 1096 (D.C. Cir. 2009) (citing 5 U.S.C. § 552a(j)).
Invoking this provision, the Department of Treasury
exempted TECS from certain Privacy Act provisions. See 31
C.F.R. § 1.36(c)(1)(iv), (2) (exempting TECS from 5 U.S.C.
§§ 552a(d)(1)–(4), 552a(e)(1)–(3), (5), 552a(g)). The district
court found TECS is exempt “from all of the Privacy Act
requirements that Mr. Abdelfattah would enforce in this suit,
as well as the jurisdictional provision that would allow him to
bring it.” Abdelfattah, 893 F. Supp. 2d at 81. The district
court therefore dismissed the Privacy Act claims against the
Department, and Abdelfattah does not challenge this
determination on appeal. 4
4
Abdelfattah also raised Privacy Act claims against unnamed
private corporations and DHS officials. The district court properly
dismissed these claims sua sponte, as the Privacy Act creates a
cause of action against only federal government agencies and not
private corporations or individual officials. See Martinez v. Bureau
of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (stating no cause of
action against individual employees exists under the Privacy Act);
12
Abdelfattah does argue—and we agree—the district court
erred in holding that constitutional claims related to DHS’s
collection and maintenance of the TECS records are barred by
the Privacy Act. In Chung, this court noted the Privacy Act
provided a comprehensive remedial scheme—one of the
factors the Supreme Court has held militates against a court-
erected course of action for money damages—and we
therefore declined to recognize a Bivens cause of action for
the plaintiff’s constitutional claims. 333 F.3d at 273. It
follows that Abdelfattah cannot pursue a Bivens action for
DHS’s collection and maintenance of his information.
Further, to the extent he seeks a Bivens remedy from the
Department itself, Bivens claims are not available against
federal agencies. FDIC v. Meyer, 510 U.S. 471, 484–85
(1994).
Our precedent does not foreclose, however, the equitable
relief of expungement of government records for violations of
the Constitution. We have repeatedly recognized a plaintiff
may request expungement of agency records for both
violations of the Privacy Act and the Constitution. See Doe v.
U.S. Air Force, 812 F.2d 738, 741 (D.C. Cir. 1987); Smith v.
Nixon, 807 F.2d 197, 204 (D.C. Cir. 1986); Hobson v. Wilson,
737 F.2d 1, 65 (D.C. Cir. 1984) (overruled in part on other
grounds by Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163 (1993)).
Williams v. ALFA Ins. Agency, 349 F. App’x 375, 376 (11th Cir.
2009) (per curiam) (explaining the Privacy Act does not apply to
private corporations). Therefore, it is “patently obvious,”
Abdelfattah’s Privacy Act claims against private corporations and
individual officials cannot prevail, and the district court could
dismiss them pursuant to Rule 12(b)(6) without notice. Rollings v.
Wackenhut Services, Inc., 703 F.3d 122, 127 (D.C. Cir. 2012)
(quoting Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 727
(D.C. Cir. 1990)).
13
Such recognition is consistent with our conclusion in
Spagnola v. Mathis, 859 F.2d 223, 229–230 (D.C. Cir. 1988)
(per curiam). There we held the availability of a
comprehensive remedial scheme in the Civil Service Reform
Act (“CRSA”) counseled against extending a Bivens cause of
action for damages to compensate federal employees and job
applicants for constitutional claims. Id. at 229. We
nevertheless made clear that the CRSA did not preclude
judicial review of such constitutional claims altogether. Civil
servants and job applicants could still “seek equitable relief
against their supervisors, and the agency itself, in vindication
of their constitutional rights.” Id. at 230. Abdelfattah seeks
equitable relief for the Department’s alleged violations of the
Constitution, and Congress’s provision of specific Privacy
Act remedies does not bar his claims.
III
A
Because Abdelfattah’s claims “stem[] from [his]
difficulty finding work and obtaining Lawful Permanent
Resident [‘LPR’] status and a Green Card reflecting” that
status, the Government makes a tepid argument that his
constitutional claims are moot because he is working as a
software engineer and has obtained both LPR status and a
Green Card. Appellees’ Br. at 10 (citing First Amend.
Compl. ¶ 39; Decl. of Abdelfattah ¶ 2 (Mar. 18, 2012). Under
the mootness doctrine that derives from Article III of the
Constitution, federal courts “may only adjudicate actual,
ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317
(1988). Judicial review is precluded where “events have so
transpired that [a judicial] decision will neither presently
affect the parties’ rights nor have a more-than-speculative
chance of affecting them in the future.” Clarke v. United
14
States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc) (internal
quotation marks omitted). If Abdelfattah were somehow
seeking a declaration of entitlement to LPR status or a
physical Green Card, we agree both claims would be moot.
However, Abdelfattah requests expungement of the TECS
records to remedy DHS’s continued maintenance and use of
those records. He argues the threat remains that the
maintenance and use of the TECS records will lead to future
deprivation of his rights. The Government argues Abdelfattah
is not entitled to the remedy of expungement and that his
allegations of future harm are mere speculation. This is a live
controversy, and our decision will affect the respective rights
of the parties. See, e.g., Hedgepath ex rel. Hedgepath v.
Washington Metro. Area Transit Auth., 386 F.3d 1148, 1152–
52 (D.C. Cir. 2004) (Fourth and Fifth Amendment claims not
mooted by a change in policy where plaintiff sought
expungement of arrest record as a remedy); Doe v. U.S. Air
Force, 812 F.2d 738, 740–41 (D.C. Cir. 1987) (claims not
moot where seized documents were returned because an issue
remained as to whether expungement of copies retained
would be an appropriate remedy should Fourth Amendment
violation be found). Abdelfattah’s constitutional claims are
therefore not moot, and we have jurisdiction to consider
whether he has stated a claim or claims upon which relief may
be granted.
B
Amicus argues our ruling in Chastain v. Kelley
recognized a right to expungement or amendment5 of
government records if a plaintiff is “adversely affected” by
information contained in them that is “prejudicial without
5
For brevity’s sake, we will refer to both expungement and
amendment of government records as “expungement.”
15
serving any proper [governmental] purpose.”6 510 F.2d 1232,
1236 (D.C. Cir. 1975). In Chastain, the FBI accused one of
its special agents of, inter alia, misusing his credentials when,
in an attempt to help a female friend, he displayed his badge
to and questioned her neighbor about a string of obscene
phone calls. Id. at 1234. The agent was suspended without
pay and notified of his proposed dismissal. Id. The agent
sued the FBI in federal court seeking restoration to active
service, claiming, among other things, he was not afforded
due process and the reasons for his suspension and proposed
dismissal were “improper or unsubstantiated.” Id. at 1235–
36. While the case was pending, the FBI changed positions,
cancelling both the suspension and proposed dismissal. Id. at
1235. Accordingly, the Government requested the agent’s
claims be dismissed as moot. Id. The agent, however, moved
for an order requiring all records related to the incident to be
expunged, which the district court granted after the
Government failed to timely oppose the motion. Id. In an
untimely filing, the Government opposed expunction,
6
The Government argues Abdelfattah waived this argument—
raised here by Amicus—by not raising it in the proceedings before
the district court. Abdelfattah’s pro se pleadings must be liberally
construed. Erickson, 551 U.S. at 94. He did claim below that the
TECS records should be expunged, stating the records associate
him with terrorism, that he is being adversely affected as a result,
and that the Department has no need for maintaining the records.
Mtn. to Amend Compl. at 2, 6 (citing Chastain, 510 F.2d at 1235).
This is sufficient for a pro se litigant to preserve the argument that
he possesses a legally cognizable right to the expungement of
prejudicial records that do not serve a proper governmental
purpose. Amicus refined the argument, but “[i]t is precisely
because an untrained pro se party may be unable to identify and
articulate the potentially meritorious arguments in his case that we
sometimes exercise our discretion to appoint amici.” Bowie v.
Maddox, 642 F.3d 1122, 1135 n.6 (D.C. Cir. 2011).
16
explaining its decision not to terminate the agent did not mean
he had been “absolved of any wrongdoing.” Id. at 1237. To
the contrary, the Government maintained the agent had in fact
“misuse[d] his credentials and . . . unnecessarily involve[d]
the FBI in a matter over which it had no jurisdiction.” Id.
Further, the agent himself did not entirely deny wrongdoing
and recognized he was guilty of “questionable judgment.” Id.
at 1238.
After unsuccessfully requesting reconsideration, the
Government appealed. We began by noting “federal courts
are empowered to order the expungement of Government
records where necessary to vindicate rights secured by the
Constitution or statute.” Id. at 1235. This power is an
“instance of the general power of the federal courts to fashion
appropriate remedies to protect important legal rights.” Id.
While the equitable remedy of expungement is a “versatile
tool,” it is one that “must be applied with close attention to
the peculiar facts of each case.” Id. at 1236. The district
court appeared to have issued the expungement order because
the motion was not opposed within the appropriate time
period and not because the court found expungement
warranted after consideration of the merits. Id. at 1238.
While the district court’s order was understandable due to the
Government’s failure to make a timely filing, we thought the
consequences of the Government’s errors should not fall on
other FBI agents who could potentially be unfairly passed up
for promotions or other job benefits in favor of the accused
agent once his records were expunged of all mention of his
“serious want of sound judgment . . . in the exercise of his
official authority.”7 Id.
7
The Government argues the relevant language in Chastain is
dicta, as the “core holding of Chastain was reversal of the district
court’s order of expungement.” Appellee’s Br. at 13. To the
17
Consequently, we vacated the order of expungement and
instructed the district court not to reissue it “prior to a hearing
on the extent to which the information in the [FBI’s] files
violates [Chastain’s] rights without serving any legitimate
needs of the [FBI].” Id. at 1237. Assuming the FBI had
violated the agent’s rights, those rights had largely been
vindicated when he was reinstated to active duty. Id. at 1238.
However, we noted in language that now forms the basis of
Amicus’s argument, “There may remain a right not to be
adversely affected by the information in the future. Such a
right may exist if the information (1) is inaccurate, (2) was
acquired by fatally flawed procedures, or (3) . . . is prejudicial
without serving any proper purpose of the [FBI].” Id. at 1236.
While we expressed skepticism that any of these conditions
existed in the case at hand, we left the determination to be
made by the district court after a hearing on the merits. Id.
This passage does not recognize a standalone right to
expungement of government records that are inaccurate, were
acquired by flawed procedures, or are prejudicial and do not
serve any proper governmental purpose. We clearly stated in
Chastain that expungement is a remedy that may be available
to vindicate statutory or constitutional rights. See id. at 1235
(expungement may be ordered “where necessary to vindicate
rights secured by the Constitution or by statute”); id.
(authority to order records expunged is part of courts’ power
“to fashion appropriate remedies to protect important legal
rights”); id. at 1236 (describing expungement as an “equitable
remedy”). A court does not fashion equitable remedies
without first finding a violation of an established legal right
contrary, our “core holding” in Chastain was that the order of
expungement was premature. Our identification of the factors the
district court must consider before reissuing the order of
expungement was essential to the decision and therefore part of our
holding.
18
has occurred or is imminent. See, e.g., BLACK’S LAW
DICTIONARY (10th ed. 2014) (defining a remedy as “[t]he
means of enforcing a right or preventing or redressing a
wrong”). In Chastain, it was not clear the agent’s rights had
been violated. We therefore ordered the district court to
conduct a hearing to determine the extent to which his rights
were violated. Chastain, 510 F.2d at 1237. We further
instructed that even if the agent’s rights were violated, the
remedy of expungement would only be appropriate if at least
one of the enumerated conditions were present. Id. at 1236.
In other words, if the agent’s suspension and proposed
termination were illegal, the district court must then
separately determine whether he should be protected from any
adverse consequences that might arise from the information
about the incident remaining in his records. This
determination would involve careful weighing of the litigants’
respective interests.
Admittedly, our use of the word “right” in describing the
conditions under which the remedy of expungement would be
appropriate could be a source of confusion. But Amicus’s
reading requires finding the proverbial elephant in the mouse
hole. There is no indication in Chastain that we were
recognizing a distinct legal right to expungement of
government records. None of the substantive analysis
prerequisite to recognizing a right enforceable in federal court
is present. The source of the right to expungement is not
identified, although Amicus focuses on substantive due
process. Amicus’s Rep. Br. at 7–8 n.7. Nor does the court
grapple with separation of powers concerns that would arise
from the judiciary assuming authority over routine
maintenance of executive branch records. See Sealed
Appellant v. Sealed Appellee, 130 F.3d 695, 699 (5th Cir.
1997) (“The President, not the district court, runs the
executive branch—and it is he who decides how that branch
19
will function. There is no specific exception to this general
constitutional rule for expungement.”). A court intending to
identify a substantive constitutional right to compel
expungement of material “not serving any proper purpose”
would surely have wrestled with the difficult questions
inherent in every word of that phrase. Finally, the Chastain
court made no attempt to distinguish conflicting precedent.
See Finley v. Hampton, 473 F.2d 180, 185 (D.C. Cir. 1972)
(holding a federal employee had no legally cognizable right to
expungement of “adverse and perhaps untrue” information in
his personnel file “in absence of a real threat of injury”).
Therefore, reading Chastain both for what it says and
what it does not say, the case establishes a modest
proposition: expungement of government records is an
equitable remedy that may be available under certain
circumstances to vindicate constitutional and statutory rights.
The subsequent treatment of Chastain—in cases cited by
Amicus—further supports this reading. Orders of
expungement have typically been contemplated for well-
defined constitutional claims. In Doe v. U.S. Air Force, we
relied on Chastain to explain expungement of the copies of
records seized from the plaintiff’s Air Force barracks may be
an “available as a remedy if it be determined that the retained
copies and information were unconstitutionally obtained.”
812 F.2d 738, 740–41 (D.C. Cir. 1987) (emphasis added). In
Hobson v. Wilson, we cited Chastain when explaining
“expungement of records is, in proper circumstances, a proper
remedy in an action brought directly under the Constitution.”
737 F.2d at 65 (emphasis added). The actions brought
directly under the Constitution in that case were claims that
federal officials had interfered with the plaintiffs’ “exercise of
their First Amendment rights.” Id. at 13.
 20
As a thorough reading of the opinion and our subsequent
case law demonstrate, we did not in Chastain—nor do we
today—recognize a nebulous right to expungement of
government records that are inaccurate, were illegally
obtained, or are “prejudicial without serving any proper
purpose;” instead expungement is a potentially available
remedy for legally cognizable injuries.8 Abdelfattah fails to
state a claim under Amicus’s Chastain theory, because
identifying a remedy is not stating a claim. See Sealed
Appellant, 130 F.3d at 700 (“We should not elevate a mere
remedy to the status of a right. The fashioning of a remedy
should be based on something else. A petitioner cannot come
into court to ask for an injunction and have the harm the
injunction is based on be the fact that the government officers
would not enjoin themselves. Something is missing. That
something is injury to a legally protected interest.”).
C
We next consider Abdelfattah’s procedural due process
claim. “A procedural due process violation occurs when an
official deprives an individual of a liberty or property interest
without providing appropriate procedural protections.”
8
We note that even if Chastain did recognize a distinct right to, or
liberty interest in, expungement of prejudicial records that do not
serve any proper governmental purpose, Abdelfattah’s claims
arguably fail. It would be difficult for a court to find the
government has no “proper purpose” in retaining information about
Abdelfattah’s association—albeit attenuated—with his former
roommate and DHS’s investigation into that association. We can
readily perceive that DHS could have a legitimate purpose in
retaining information that “connects the dots” in an investigation
into a terrorist attack—both to avoid duplicating work in the future
and because records of the identities of a suspect’s known
acquaintances may prove useful.
21
Atherton, 567 F.3d at 689.9 While Abdelfattah’s First
Amended Complaint and Motion to Amend the Complaint
repeatedly state his “right to work” and “right to travel” have
been stymied, entitlement to relief requires more than putting
forth “labels and conclusions.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Abdelfattah must allege
sufficient facts to state a plausible claim for relief. Id. We
accept, as we must, that the facts he pleaded are true, but we
“are not bound to accept as true a legal conclusion couched as
a factual allegation.” Twombly, 550 U.S. at 555.
Amicus cites Greene v. McElroy for the proposition that
“the right to hold specific private employment and to follow a
chosen profession free from unreasonable governmental
interference comes within the ‘liberty’ and ‘property’”
interests protected by the Fifth Amendment. 360 U.S. 474,
492 (1959). Greene and its related line of cases recognize a
constitutional “right to follow a chosen trade or profession,”
Kartseva v. Dep’t of State, 37 F.3d 1524, 1529 (D.C. Cir.
1994) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886,
895–96 (1961)). Thus, when the government formally debars
an individual from certain work or implements broadly
preclusive criteria that prevent pursuit of a chosen career,
there is a cognizable “deprivation of liberty that triggers the
procedural guarantees of the Due Process Clause.” Trifax
Corp. v. Dist. of Columbia, 314 F.3d 641, 643–44 (D.C. Cir.
2003).
Abdelfattah has not alleged facts suggesting his liberty or
property interest in pursuing his chosen profession has been
9
Abdelfattah, a lawful permanent resident physically present in the
United States, is a “person” within the meaning of the Fifth
Amendment and is entitled to its protections. See Kwong Hai Chew
v. Colding, 344 U.S. 590, 596 (1953).
22
implicated. He is a software engineer and has made no
allegations to suggest that any action on the part of DHS has
precluded him from working in that field. To the contrary, at
the time he filed his First Amended Complaint, he claimed to
still be working as a software engineer. First Amend. Compl.
¶ 39. Abdelfattah alleges the government interfered with his
right to work by visiting his workplace and speaking with his
employer and that he could have lost his job as a result. But
even if he had, the loss of “one position in [the] profession” is
insufficient to implicate a Fifth Amendment liberty interest in
following one’s chosen trade or profession. Kartseva, 37 F.3d
at 1529. Rather an individual must suffer a binding
disqualification from work or broad preclusion from his or her
chosen field. Id. at 1528–29.
Abdelfattah further asserts DHS deprived him of his
“right” to travel internationally. The Due Process Clause of
the Fifth Amendment protects a liberty interest in
international travel. See, e.g., Califano v. Aznavorian, 439
U.S. 170, 176 (1978). However, Abdelfattah has not alleged
any facts suggesting that his freedom to travel internationally
has been infringed or adversely affected. His passport has not
been confiscated, and he makes no claim of being denied
access—even temporarily—to any means of transportation
exiting or entering the United States; nor does he claim to
have been subjected to heightened searches or questioning
while traveling. He is therefore unlike the plaintiffs in the
cases cited by Amicus. See Shachtman v. Dulles, 225 F.2d
938 (D.C. Cir. 1955) (Secretary of State denied U.S. citizen’s
application for a passport); Mohamed v. Holder, 995 F. Supp.
2d 520 (E.D. Va. 2014) (plaintiff told he was on the No Fly
List and denied boarding on a flight to United States); Latif v.
Holder, 969 F. Supp. 2d 1293, 1296 (D. Or. 2013) (plaintiffs
“not allowed to board flights to or from the United States or
over United States air space”). Instead Abdelfattah alleges he
23
is concerned that because of the TECS records, if he leaves
the United States he will not be permitted to return or that he
may be tortured or killed by a foreign government. His fears
are largely based on anecdotal evidence of others being
subjected to such treatment. First Amend. Compl. ¶¶ 199–
204; 205–211. Abdelfattah’s allegations are too speculative
and intangible to state a claim of deprivation of liberty.
Our discussion thus far has been limited to the liberty
interests in work and travel protected under the Fifth
Amendment’s Due Process Clause. Abdelfattah seems to
argue, however, that his status as a LPR creates concomitant
rights to proper documentation of that status. To the extent
we can understand their arguments, Abdelfattah and Amicus
both seem to suggest that these rights form the basis of liberty
or property interests protected by due process. If they are
making such an argument, we are unable to evaluate it. First,
neither Abdelfattah nor Amicus cites the statutes or
regulations conferring these rights on LPRs. Next, they failed
to put forth any argument or citation to authority supporting
the proposition that the statutory or regulatory rights of LPRs
create Fifth Amendment liberty or property interests. Further,
they did not discuss the parameters of these asserted interests.
Therefore, whether Abdelfattah has stated a claim on these
grounds is not a question properly before us, and we decline
to reach it. See FED. R. APP. P. 28(a)(9)(A) (requiring parties
to provide “citations to the authorities . . . on which [they]
rel[y]” to support their arguments). We do “not consider
‘asserted but unanalyzed arguments’ because ‘appellate courts
do not sit as self-directed boards of legal inquiry and research,
but essentially as arbiters of legal questions presented and
argued by the parties before them.’” Anna Jacques Hosp. v.
Sebelius, 583 F.3d 1, 7 (D.C. Cir. 2009) (quoting Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).
24
D
Abdelfattah, with the help of Amicus, argues he has
stated claims of violations of his substantive due process
rights. “The touchstone of due process is protection of the
individual against arbitrary action of government.” Wolff v.
McDonnell, 418 U.S. 539, 558 (1974). This is so “whether
the fault lies in a denial of fundamental procedural fairness . .
. or in the exercise of power without any reasonable
justification in the service of a legitimate governmental
objective.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845–
46 (1998). However, the Constitution is not a “font of tort
law,” and the need to protect the “constitutional proportions
of constitutional claims” is particularly acute “in a due
process challenge to executive action.” Id. at 847 n.8.
Balancing these principles, the Supreme Court has recognized
that some executive actions may be “arbitrary in the
constitutional sense.” Id. at 846. However, only
“deprivations of liberty caused by ‘the most egregious official
conduct,’ . . . may violate the Due Process Clause.” Chavez v.
Martinez, 538 U.S. 760, 774 (2003) (plurality opinion)
(quoting Lewis, 523 U.S. at 846). “Thus, in a due process
challenge to executive action, the threshold question is
whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.” Lewis, 523 U.S. at 847 n.8.
Amicus argues Abdelfattah stated a substantive due
process claim that DHS deprived him of his liberty interests in
working and in travelling internationally in a manner that was
“arbitrary, or conscience shocking, in the constitutional
sense.” Id. at 849. But these arguments fail for the same
reason as the procedural due process claims discussed above:
Abdelfattah has not alleged facts suggesting he has been
deprived—arbitrarily or otherwise—of a cognizable liberty or
25
property interest. See George Washington Univ. v. Dist. of
Columbia, 318 F.3d 203, 206 (D.C. Cir. 2003) (stating the
“doctrine [of substantive due process] normally imposes only
very slight burdens on the government to justify its actions, it
imposes none at all in the absence of a liberty or property
interest”); Yates v. Dist. of Columbia, 324 F.3d 724, 725–26
(D.C. Cir. 2003) (asking first whether plaintiff possessed a
property interest before evaluating whether the official
conduct he complained of was egregious).
Amicus next argues, alternatively, that Chastain creates a
cognizable liberty interest in the expungement of prejudicial
government records that do not serve a proper purpose. As
discussed above, expungement is an equitable remedy that
may be warranted to vindicate violations of constitutional or
statutory rights. As there is no right to expungement, it
follows there is no liberty interest in expungement. See
Roberts v. United States, 741 F.3d 152, 161 (D.C. Cir. 2014)
(explaining to constitute a cognizable liberty interest, plaintiff
must have a “legitimate claim of entitlement” to the
government conduct in question). At its base, Amicus’s
argument is that Abdelfattah has stated a substantive due
process claim simply because he has alleged DHS treated him
arbitrarily. However, “[m]erely labeling a governmental
action as arbitrary and capricious, in the absence of a
deprivation of life, liberty, or property, will not support a
substantive due process claim.” Singleton v. Cecil, 176 F.3d
419, 424 (8th Cir. 1999) (en banc); see also Nunez v. City of
Los Angeles, 147 F.3d 867, 873–74 (9th Cir. 1998)
(explaining “[t]here is no general liberty interest in being free
from capricious government action. . . . Otherwise, as then-
Judge Stevens explained, ‘every time a citizen [i]s affected by
government action, he would have a federal right to judicial
review.’”) (quoting Jeffries v. Turkey Run Consol. Sch. Dist.,
492 F.2d 1, 4 n.8 (7th Cir. 1974)); but see Willowbrook v.
26
Olech, 528 U.S. 562, 564 (2000) (noting the Court’s
recognition of “successful equal protection claims brought by
a ‘class of one,’ where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
treatment”).
Abdelfattah alleges DHS violated his substantive due
process rights by detaining him. “Where a particular
Amendment provides an explicit textual source of
constitutional protection against a particular sort of
government behavior, that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the
guide for analyzing” a claim. Albright v. Oliver, 510 U.S.
266, 273 (1994) (plurality opinion) (internal quotation marks
omitted). Abdelfattah’s claim of illegal seizure is cognizable
under the Fourth Amendment and therefore cannot proceed
under the doctrine of substantive due process. Id.
He next argues the FBI and DHS’s repeated questioning,
requests that he become an informant, threats of deportation,
delays in processing his applications for immigration benefits,
and refusals to provide proper documentation constitute
substantive due process violations. He alleges DHS will
continue to subject him to similar treatment so long as the
TECS records remain. But neither Abdelfattah nor Amicus
offers an argument or citation to authority to establish that
these alleged acts implicate a liberty interest cognizable under
the Due Process Clause. Cf. Mudric v. Attorney General of
United States, 469 F.3d 94, 99 (3d Cir. 2006) (“No
constitutional injury occurred from the INS delays in this case
because [the plaintiff] simply had no due process entitlement
to the wholly discretionary benefits of which he and his
mother were allegedly deprived, much less a constitutional
right to have them doled out as quickly as he desired.”);
27
Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991) (“Fear or
emotional injury which results solely from verbal harassment
or idle threats is generally not sufficient to constitute an
invasion of an identified liberty interest.”) (citations omitted)
(abrogated in part on other grounds by Martinez v. Cui, 608
F.3d 54, 64–65 (1st Cir. 2010)). We therefore do not evaluate
whether he has stated a substantive due process claim based
on harassment, threats of deportation, or administrative delays
he has been or will be subjected to by DHS. See FED. R. APP.
P. 28(a)(9)(A), Anna Jacques Hosp., 583 F.3d at 7.
Even if Abdelfattah had alleged a cognizable deprivation
of a liberty or property interest, a question would remain: do
his pleadings state plausible allegations of conduct that “may
fairly be said to shock the contemporary conscience”? Lewis,
523 U.S. at 847 n.8; cf. Vogrin v. Swartswelder, No. 04-5052,
2004 WL 2905328 (D.C. Cir. Apr. 5, 2004) (per curiam)
(finding at the motions to dismiss stage plaintiffs had not
stated a claim of “abuse of government power that shocks the
conscience”). While the precise threshold for alleging an
executive action violates substantive due process rights is
“unclear,” Am. Fed’n of Gov’t Emps., AFL-CIO, Local 466 v.
Nicholson, 475 F.3d 341, 344 (D.C. Cir. 2007) (stating “a
mere violation of law does not give rise to a due process
claim”); see also Lewis, 523 U.S. at 847 (“While the measure
of what is conscience shocking is no calibrated yard stick, it
does, as Judge Friendly put it, ‘poin[t] the way.’” (quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)
(alteration in original))), the bar is high. Accepting the facts
as true, Abdelfattah has gone through an ordeal that surely has
been frustrating, distressing, and, at intervals, infuriating, but
the exasperation engendered by bureaucratic obduracy is
probably not enough. While we need not and do not make
that determination here, we remain skeptical.
28
IV
Abdelfattah asserts claims under the Fair Credit
Reporting Act and the Right to Financial Privacy Act against
the Department, unnamed federal officials, and unnamed
corporate defendants. Abdelfattah learned the Department is
in possession of his previous addresses and phone numbers,
his social security number, his driver’s license numbers, and
his credit card number when he reviewed information he
received in response to a FOIA request. He also alleges this
information was obtained without his consent and not
pursuant to a court order. Finally, Abdelfattah says that after
conducting research he has concluded the “only place” the
Department could have obtained this information is his “credit
report header info.” First Amend. Compl. ¶ 59.
A
The Right to Financial Privacy Act (“RFPA”) “bars
financial institutions from ‘provid[ing] to any Government
authority access to . . . the financial records of any customer’
without complying with certain procedures.” Stein v. Bank of
America Corp., 540 F. App’x 10, 10 (D.C. Cir. 2013) (per
curiam) (quoting 12 U.S.C. § 3403(a)). These procedures
include receiving the customer’s authorization to release the
record or obtaining a valid subpoena or warrant. 12 U.S.C. §
3402. “Customers aggrieved by the improper disclosure of
their records have a private right of action against the
governmental authority that obtained the records and the
financial institution that disclosed the records.” Tucker v.
Waddell, 83 F.3d 688, 692 (4th Cir. 1996) (citing 12 U.S.C. §
3417(a)). However, “[t]he most salient feature of the Act is
the narrow scope of entitlements it creates. Thus it carefully
limits the kinds of customers to whom it applies . . . and the
types of records they may seek to protect.” SEC v. Jerry T.
29
O’Brien, 467 U.S. 735, 745 (1984). Under the RFPA,
“financial records” are “information known to have been
derived from, any record held by a financial institution
pertaining to a customer’s relationship with the financial
institution.” 12 U.S.C. § 3401(2). A “customer” is “any
person or authorized representative of that person who
utilized or is utilizing any service of a financial institution, or
for whom a financial institution is acting or has acted as a
fiduciary, in relation to an account maintained in the person’s
name.” Id. § 3401(5). Finally, a “financial institution” is
“any office of a bank, savings bank, card issuer, . . . industrial
loan company, trust company, savings association, building
and loan, or homestead association (including cooperative
banks), credit union, or consumer finance institution.” Id. §
3401(1).10
Abdelfattah has not alleged facts sufficient to show a
violation of the RFPA’s narrow provisions. He has not
identified the source of the alleged disclosure to the
government, and he failed to allege that entity is a “financial
institution” within the meaning of the Act. He has not alleged
he was a “customer” of the offending entity. Finally, he
alleged on information and belief that the record that was
disclosed was his credit report header. He does not explain
how that record pertains to his relationship with the financial
institution that made the alleged disclosure or why he believes
the credit report header was disclosed by a financial
institution as opposed to a credit reporting agency not
10
RFPA contains an exception allowing access to financial records
to a “Government authority authorized to conduct investigations of,
or intelligence or counterintelligence analyses related to,
international terrorism for the purpose of conducting such
investigations or analyses.” 12 U.S.C. § 3414(a)(1)(c). The
Government expressly waived reliance on this provision at oral
argument. Oral Arg. Tr. at 40:2–10.
30
regulated by the RFPA. Even liberally construing
Abdelfattah’s pro se complaint, he has not “plead[ed] factual
matter that permits [us] to infer more than the mere possibility
of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir.
2011) (internal quotation marks omitted).
B
“Congress enacted the [Fair Credit Reporting Act
(“FCRA”)] in 1970 to ensure fair and accurate credit
reporting, promote efficiency in the banking system, and
protect consumer privacy.” Safeco Ins. Co. of America v.
Burr, 551 U.S. 47 (2007). FCRA regulates the dissemination
and use of “consumer reports.” To qualify as a consumer
report under FCRA, information must satisfy two elements.
First, it must be a “written, oral, or other communication of
any information by a consumer reporting agency bearing on a
consumer’s credit worthiness, credit standing, credit capacity,
character, general reputation, personal characteristics, or
mode of living.” 15 U.S.C. § 1681a(d)(1). Second, the
information must be “used or expected to be used or collected
in whole or in part for” one of several purposes identified in
the Act. Id. The Act prohibits consumer reporting agencies
from “furnish[ing] a consumer report” except under specified
conditions, and it forbids any person from “us[ing] or
obtaining” a consumer report unless it is obtained for certain
permissible purposes identified in the statute. Id. § 1681b(a),
(f). The Act’s definition of “person” includes any
“government or governmental subdivision or agency.” Id. §
1681a(b). Under FCRA, a governmental agency may obtain
basic identifying information about a consumer from a credit
reporting agency. Id. § 1681f. This identifying information is
limited to the consumer’s name, address, former address,
places of employment, or former places of employment. Id.
If a governmental agency desires more detailed information, it
31
must generally seek a court order or subpoena. Id. §
1681b(a)(1). 11 FCRA provides a private cause of action
against “[a]ny person” who willfully or negligently fails to
comply with its requirements. Id. §§ 1681n; 1681o. The
Government argues, and the district court found, that the
information Abdelfattah alleges was illegally furnished to the
Department does not constitute a “consumer report” within
the meaning of the Act because it does not bear on
Abdelfattah’s “credit worthiness, credit standing, credit
capacity, character, general reputation, personal
characteristics, or mode of living.” 15 U.S.C. § 1681a(d)(1).
The district court therefore dismissed the claims. Abdelfattah,
893 F. Supp. 2d at 82–83. Amicus contests this holding only
in regards to Abdelfattah’s credit card number. Amicus first
argues credit card numbers are subject to FCRA’s
requirements because section 1681c(g) requires the truncation
of credit card numbers contained in receipts. This provision
is irrelevant, however, as Abdelfattah has made no allegation
that the document containing his credit card number is a
receipt for a business transaction or that it was “provided . . .
at the point of the sale or transaction.” 15 U.S.C. §
1681a(d)(1).
11
FCRA contains an exception under which a consumer reporting
agency “shall furnish a consumer report of a consumer and all other
information in a consumer’s file to a government agency authorized
to conduct investigations of, or intelligence or counterintelligence
activities or analysis related to, international terrorism when
presented with a written certification by such government agency
that such information is necessary for the agency’s conduct or such
investigation, activity or analysis.” 15 U.S.C. § 1681v. This
provision became effective March 9, 2006. The Government
expressly waived reliance on this counterterrorism exception to
FCRA at oral argument. Oral Arg. Tr. at 40:2–10.
32
Amicus next argues a credit card number is a “consumer
report.” The Government responds that the definition of
“consumer report” cannot be read so broadly as to include the
mere fact that an individual possesses a credit card. This case
does not call for us to address whether information merely
confirming the existence of a credit card bears on one of the
seven enumerated factors because Abdelfattah alleged DHS is
in possession of his full and specific credit card number,
along with information regarding the type and issuer of the
card. That Abdelfattah possesses a major credit card of a
specific type and number bears on his mode of living. Cf.
Trans Union Corp. v. FTC, 81 F.3d 228, 231 (D.C. Cir. 1996)
(finding the fact that individuals established two tradelines
bore “at least on [their] mode of living”). We therefore
reverse the district court’s ruling that the FCRA claims failed
on the first prong of the definition of “consumer report” and
remand for further proceedings.
V
The judgment of the district court should be affirmed as
to all aspects except the dismissal of the FCRA claims.
So ordered.