Gabriel Moran v. the Screening Pros , 923 F.3d 1208 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL FELIX MORAN, No. 12-57246
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-05808-
SVW-AGR
THE SCREENING PROS, LLC, a
California corporation,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted August 23, 2018 *
Pasadena, California
Filed May 14, 2019
Before: ANDREW J. KLEINFELD, MILAN D. SMITH,
JR., and JACQUELINE H. NGUYEN, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by Judge Kleinfeld
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 MORAN V. THE SCREENING PROS
SUMMARY **
Consumer Reporting
The panel reversed the district court’s judgment in favor
of the defendant in an action under the federal Fair Credit
Reporting Act and California’s Investigative Consumer
Reporting Agencies Act and Unfair Competition Law.
After being denied housing due to disclosures appearing
in a tenant screening report, Gabriel Moran brought suit
against The Screening Pros, LLC. The district court
dismissed in part and granted summary judgment in part.
The district court held that the ICRAA, which regulates
“investigative consumer reports,” was unconstitutionally
vague as applied to tenant screening reports due to the
ICRAA’s overlap with California’s Consumer Credit
Reporting Agencies Act. The panel concluded that the
district court’s holding was foreclosed by Connor v. First
Student, Inc., 423 P.3d 953 (Cal. 2018), and The Screening
Pros’ new arguments in favor of dismissal of the ICRAA
claims were waived. The panel reversed and remanded to
the district court to consider the merits of the ICRAA claims
and to decide whether Moran stated a UCL claim predicated
on The Screening Pros’ alleged ICRAA violations.
Reversing as to the FCRA claims, the panel held that
15 U.S.C. § 1681c(a) permits consumer reporting of a
criminal charge for only seven years following the date of
entry of the charge, rather than the date of disposition.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MORAN V. THE SCREENING PROS 3
Further, the dismissal of a charge does not constitute an
adverse item and may not be reported after the reporting
window for the charge has ended. The panel concluded that
Moran sufficiently stated claims pursuant to the FCRA
because the tenant screening report’s inclusion of a 2000
charge fell outside of the permissible seven-year window.
The panel remanded for further proceedings.
Concurring in part and dissenting in part, Judge
Kleinfeld joined in Parts I and II of the analysis, addressing
the ICRAA and UCL claims. Dissenting from Part III,
addressing the FCRA claims, Judge Kleinfeld wrote that the
dismissal of the charge was reportable under the plain
language of the statute.
COUNSEL
Deepak Gupta and Peter Conti-Brown, Gupta Beck PLLC,
Washington D.C.; Meredith Desautels, Lawyers’ Committee
for Civil Rights of the San Francisco Bay Area, San
Francisco, California; Joshua E. Kim, A New Way of Life
Reentry Project, Los Angeles, California; Devin H. Fok,
Law Offices of Devin H. Fok, Alhambra, California; Craig
Davis, Law Offices of Craig Davis, San Francisco,
California; for Plaintiff-Appellant.
Michael J. Saltz, Colby A. Petersen, and Blair Schlecter,
Jacobson Russell Saltz Nassim & de la Torre LLP, Los
Angeles, California, for Defendant-Appellee.
Keith Bradley and Nandan M. Joshi, Attorneys; David M.
Gossett, Assistant General Counsel; To-Quyen Truong,
Deputy General Counsel; Meredith Fuchs, General Counsel;
Consumer Financial Protection Bureau, Washington, D.C.;
4 MORAN V. THE SCREENING PROS
Theodore (Jack) Metzler, Attorney; John F. Daly, Deputy
General Counsel for Litigation; Jonathan E. Neuchterlein,
General Counsel; Office of the General Counsel, Federal
Trade Commission, Washington, D.C.; for Amici Curiae
Consumer Financial Protection Bureau and Federal Trade
Commission.
Alison S. Hightower and Rod M. Fliegel, Littler Mendelson
P.C., San Francisco, California, for Amicus Curiae National
Multifamily Resident Information Council.
Karen K. McCay and Helene Simvoulakis-Panos, Pahl &
McCay APLC, San Jose, California, for Amicus Curiae
California Apartment Association.
Tanya Koshy, East Bay Community Law Center, Berkeley,
California, for Amici Curiae East Bay Community Law
Center; Asian Americans Advancing Justice - Asian Law
Caucus; American Civil Liberties Union of Southern
California; Bay Area Legal Aid; The California
Reinvestment Coalition; The Center for Employment
Opportunities; Drug Policy Alliance; Ella Baker Center; The
University of California Hastings Civil Justice Clinic;
Housing and Economic Rights Advocates; Legal Action
Center; Legal Services for Prisoners with Children; The
National Consumer Law Center; The National Employment
Law Project; The National Housing Law Project; Public
Good; Rubicon Programs; and Safer Foundation.
MORAN V. THE SCREENING PROS 5
OPINION
M. SMITH, Circuit Judge:
After being denied housing due to disclosures appearing
in a tenant screening report, Plaintiff-Appellant, Gabriel
Moran brought suit against Defendant-Appellee, The
Screening Pros (TSP), alleging violations of the federal Fair
Credit Reporting Act (FCRA), 15 U.S.C. § 1681,
California’s Investigative Consumer Reporting Agencies
Act (ICRAA), Cal. Civ. Code § 1786, and California’s
Unfair Competition Law (UCL), Cal. Bus. & Prof. Code
§ 17200.
The district court dismissed all but one cause of action
and granted summary judgment on the remaining FCRA
claim. We reverse the district court on all claims and remand
for further proceedings.
BACKGROUND
TSP provides tenant screening reports to property
owners who desire to know certain information about
potential tenants of their properties. The reports include both
general character and creditworthiness information. In
February 2010, Moran applied for housing with Maple
Square Apartments (Maple Square), an affordable housing
development. At Maple Square’s request, TSP prepared a
tenant screening report on Moran (Report), which disclosed
four criminal matters in his background: a May 16, 2000
misdemeanor charge for being under the influence of a
controlled substance (2000 Charge), dismissed on March 2,
2004; two June 2006 charges for burglary and forgery,
dismissed that same month; and a June 2006 conviction for
misdemeanor embezzlement from an elder dependent adult.
After reviewing the Report, Maple Square denied Moran’s
6 MORAN V. THE SCREENING PROS
rental application due to his 2006 embezzlement conviction
and, Moran alleges, the three dismissed charges.
In 2012, Moran instituted this action against TSP
alleging six claims pursuant to the ICRAA, 1 two claims
pursuant to the UCL, 2 and three claims pursuant to the
FCRA. 3 The Report’s inclusion of the 2000 Charge, later
dismissed in 2004, served as the predicate offense of most of
these claims.
TSP moved to dismiss ten of the eleven claims, but did
not seek dismissal of one claim pursuant to § 1681i of the
FCRA—failure to reinvestigate disputed consumer
information. The district court granted the motion for all
ICRAA claims because it determined that the ICRAA was
unconstitutionally vague as applied to tenant screening
1
(1) Reporting adverse information that antedates the report by
more than seven years in violation of California Civil Code
section 1786.18(a); (2) failing to maintain reasonable procedures
designed to avoid violations of section 1786.18 and assure maximum
accuracy in violation of section 1786.20; (3) failing reinvestigate
disputed consumer information in violation of § 1786.24; (4) failing to
obtain proper certification in violation of section 1786.12(e); (5) failing
to disclose the source from which the consumer information was
obtained, particularly the court, in violation of section 1786.28;
(6) failing to provide the requisite notices on the first page of its report
in violation of section 1786.29.
2
Engaging in (1) unlawful and (2) unfair business acts or practices
in violation of California Business and Professions Code section 17200.
3
(1) Reporting adverse information that antedates the report by
more than seven years in violation of 15 U.S.C. § 1681c(a); (2) failing to
maintain reasonable procedures designed to avoid violations of § 1681c
and to assure maximum accuracy of the information in violation of
§ 1681e; and (3) failing to reinvestigate disputed consumer information
in violation of § 1681i.
MORAN V. THE SCREENING PROS 7
reports. The district court also granted dismissal of the UCL
claims because it concluded that injunctive and
restitutionary relief were not available to Moran. The court
initially granted in part and denied in part the motion to
dismiss the FCRA claims. Specifically, the court denied the
motion for Moran’s claim that TSP violated the FCRA by
including Moran’s 2000 Charge because more than seven
years had passed since the charge was entered. On
reconsideration, the district court reversed itself, and
dismissed all of the challenged FCRA claims because it
determined that the reporting period for a criminal charge
begins on the “date of disposition” instead of the date of
entry. The district court granted summary judgment on the
remaining FCRA claim given its ruling that the Report “did
not contain any obsolete information in violation of
[§] 1681c.” Moran timely appealed.
This case first came before us in 2012. After oral
argument and submission of the case, we stayed proceedings
pending the California Supreme Court’s decision in Connor
v. First Student Inc., 423 P.3d 953 (Cal. 2018), because
Connor addressed the question of whether the ICRAA is
unconstitutionally vague due to a partial overlap with the
Consumer Credit Reporting Agencies Act (CCRAA), Cal.
Civ. Code § 178. Once the state proceedings concluded, the
parties filed supplemental briefs discussing Connor. Upon
receipt of the supplemental briefing, we again took this case
under submission.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s dismissal for failure to state
a claim. Dougherty v. City of Covina, 654 F.3d 892, 897 (9th
Cir. 2011). We also review de novo issues of statutory
construction. Ileto v. Glock, Inc., 565 F.3d 1126, 1131 (9th
8 MORAN V. THE SCREENING PROS
Cir. 2009). When California law is at issue, “[o]ur duty as a
federal court . . . ‘is to ascertain and apply the existing
California law.’” Munson v. Del Taco, Inc., 522 F.3d 997,
1002 (9th Cir. 2008) (quoting Mangold v. Cal. Pub. Utils.
Comm’n, 67 F.3d 1470, 1479 (9th Cir. 1995)). “We are
bound by pronouncements of the California Supreme Court
on applicable state law.” Carvalho v. Equifax Info. Servs.,
LLC, 629 F.3d 876, 889 (9th Cir. 2010) (citing Munson,
522 F.3d at 1002).
ANALYSIS
I. ICRAA Claims
In 1975, California enacted two statutory schemes: the
CCRAA and the ICRAA. Cal. Civ. Code §§ 1785, 1786.
The California legislature passed these statutes (which are
modeled after the FCRA) to ensure that reporting agencies
“exercise their grave responsibilities with fairness,
impartiality, and a respect for the consumer’s right to
privacy.” Cal. Civ. Code §§ 1785.1(c), 1786(b). The
CCRAA regulates “consumer credit reports,” defined as
“any written, oral or other communication of any
information by a consumer credit reporting agency bearing
on a consumer’s credit worthiness, credit standing, or credit
capacity.” Cal. Civ. Code § 1785.3(c). The ICRAA
regulates “investigative consumer reports,” originally
defined as “a consumer report in which information on a
consumer’s character, general reputation, personal
characteristics, or mode of living is obtained through
personal interviews.” Cal. Civ. Code § 1786.2(c) (1975).
The statutes were intended to cover separate information: the
CCRAA governed creditworthiness, while the ICRAA
governed character information. Cal. Civ. Code
§§ 1785.3(c) (1975), 1786.2(c) (1975).
MORAN V. THE SCREENING PROS 9
In 1998, the California legislature broadened the
definition of investigative consumer reports to include
consumer reports “obtained through any means,” not just
through personal interviews. Cal. Civ. Code § 1786.2(c).
This expanded the reach of the ICRAA, and some consumer
reports, including tenant screening reports, now qualified as
both “consumer credit reports” and “investigative consumer
reports.”
Against this statutory backdrop, TSP argued that the
ICRAA is unconstitutionally vague as applied to tenant
screening reports due to the ICRAA’s overlap with the
CCRAA. Relying on California Court of Appeal decisions
Ortiz v. Lyon Mgmt. Grp., Inc., 69 Cal. Rptr. 3d 66, 75 (Ct.
App. 2007) and Trujillo v. First Am. Registry, Inc., 68 Cal.
Rptr. 3d 732, 740 (Ct. App. 2007), TSP argued before the
district court that it was not clear whether the ICRAA or the
CCRAA governed tenant screening reports, which contained
both creditworthiness and character information. Without
the benefit of Connor, the district court agreed with TSP, and
held that this lack of clarity rendered the ICRAA
unconstitutionally vague as applied to tenant screening
reports.
The California Supreme Court authoritatively foreclosed
this argument in Connor. Connor recognized the overlap
between the ICRAA and CCRAA but held that “[a]ny partial
overlap between the statutes does not render one superfluous
or unconstitutionally vague. They can coexist because both
acts are sufficiently clear . . . .” 423 P.3d at 959 (citing
United States v. Batchelder, 442 U.S. 114, 123 (1979)).
While Connor analyzed this issue as applied to employer
background checks, we find that it has equal force in the
context of tenant screening reports. The California Supreme
Court specifically disapproved Ortiz—a case that held that
10 MORAN V. THE SCREENING PROS
the ICRAA was unconstitutionally vague as applied to tenant
screening reports—finding that it failed to give meaning to
the 1998 ICRAA amendment and instead “relied on the
history of [the ICRAA and the CCRAA] as originally
enacted.” Id at 958. Connor’s analysis and disapproval of
Ortiz compels a similar outcome for tenant screening
reports.
In its supplemental brief, TSP raises two arguments for
the first time to support the district court’s dismissal of the
ICRAA claims. First, TSP asserts that Moran’s ICRAA
claims are preempted by the FCRA, 15 U.S.C § 1681t(b).
Second, TSP argues that the ICRAA, Cal. Civ. Code
§ 1786.52(a), prohibits lawsuits for the same act or omission
addressed in pending claims pursuant to the FCRA.
“Generally, an appellee waives any argument it fails to
raise in its answering brief.” United States v. Dreyer,
804 F.3d 1266, 1277 (9th Cir. 2015) (en banc); see Clem v.
Lomeli, 566 F.3d 1177, 1182 (9th Cir.2009). Yet, we have
“discretion to make an exception to waiver under three
circumstances: (1) ‘in the “exceptional” case in which
review is necessary to prevent a miscarriage of justice or to
preserve the integrity of the judicial process,’ (2) ‘when a
new issue arises while appeal is pending because of a change
in the law,’ and, (3) ‘when the issue presented is purely one
of law and either does not depend on the factual record
developed below, or the pertinent record has been fully
developed.’” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318,
1322 (9th Cir. 2012) (citing Bolker v. Comm’r, 760 F.2d
1039, 1042 (9th Cir. 1985)).
TSP creatively contends that we should exercise our
discretion under the second exception to consider these new
arguments because they were only possible post-Connor.
According to TSP, Connor “expressly confirms that [the]
MORAN V. THE SCREENING PROS 11
ICRAA was amended in 1998” after Congress expanded the
FCRA and added a preemption provision which applies here.
Connor also “mak[es] [the] ICRAA applicable for the first
time since this case was filed.” We find both arguments
meritless, and TSP’s new arguments waived.
Connor was not needed to prove that the California
legislature amended the ICRAA in 1998. A cursory review
of the statute’s legislative history clearly shows the adoption
of the 1998 amendment, which TSP itself cited in its
answering brief. Thus, TSP was clearly aware of all facts
and law needed to make its federal preemption argument at
the time of initial briefing, and it should have done so if it
wished to argue that point.
Alternatively, TSP claims that the ICRAA was not
applicable after Ortiz and Trujillo, 4 so it did not think it
necessary to present other statutory arguments. Prior to
Connor, no California Supreme Court decision bound a
federal court to find the ICRAA unconstitutionally vague.
“In the absence of such a decision, a federal court must
predict how the highest state court would decide the issue
using intermediate appellate court decisions, decisions from
other jurisdictions, statutes, treatises, and restatements as
guidance.” In re Kirkland, 915 F.2d 1236, 1239 (9th Cir.
1990). We were obligated to conduct an independent
analysis framed by the doctrine of “constitutional doubt” that
requires a “statute [] be construed, if fairly possible, so as to
avoid . . . the conclusion that it is unconstitutional.”
Almendarez-Torres v. United States, 523 U.S. 224, 237
(1998) (quoting United States v. Jin. Fuey Moy, 241 U.S.
4
Trujillo, a California appellate court decision, was a companion
case to Ortiz finding the ICRAA unconstitutional as applied to tenant
screening reports. 68 Cal. Rptr. 3d at 740.
12 MORAN V. THE SCREENING PROS
394, 401 (1916)). The ICRAA, then, remained potentially
applicable in federal court, even as applied to tenant
screening reports, and TSP should have raised alternate
statutory arguments at the time of initial briefing.
Since the district court’s holding is now foreclosed by
Connor, and TSP’s new arguments are waived, we reverse
and remand to the district court to consider the merits of
Moran’s ICRAA claims.
II. UCL Claims
The UCL regulates competition by prohibiting “any
unlawful, unfair or fraudulent business act or practice.” Cal.
Bus. & Prof. Code § 17200. Even though “the scope of
conduct covered by the UCL is broad, the remedies are
limited” to injunctive and restitutionary relief. Theme
Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1008
(9th Cir. 2008) (citing Korea Supply Co. v. Lockheed Martin
Corp., 63 P.3d 937, 943 (Cal. 2003)). Moran sought both
forms of relief. The district court dismissed Moran’s claim
for injunctive relief holding that the FCRA preempts this
remedy for a UCL claim predicated on an FCRA violation.
The district court also dismissed his claim for restitutionary
relief because disgorgement of profits is not an authorized
remedy under the UCL.
While Moran does not appeal these conclusions, he
argues instead that the UCL claims were also predicated on
TSP’s alleged ICRAA violations. The district court did not
address these arguments, and instead, only analyzed
Moran’s UCL claims after concluding that the ICRAA was
unconstitutionally vague. Since we hold that the ICRAA is
not unconstitutionally vague, we remand for the district
court to decide in the first instance whether Moran has stated
a UCL claim.
MORAN V. THE SCREENING PROS 13
III. FCRA Claims
Moran appeals the district court’s dismissal of his FCRA
claims based upon the Report’s inclusion of Moran’s 2000
Charge. While both parties agree that the 2000 Charge is
classified as an “adverse item of information” and thus falls
under § 1681c(a)(5), they disagree on which date triggers the
seven-year reporting window—the date of entry of charge or
the date of dismissal of charge—and thus, whether inclusion
of the 2000 Charge was proper. The district court
recognized that this was an issue of first impression and
while initially holding that the date of entry triggered the
window, the court later found the “date of disposition” or
date of dismissal to be the appropriate trigger. We disagree,
and hold that the district court’s initial holding was correct:
the date of entry triggers the seven-year window for a
criminal charge. Thus, we find that TSP improperly
included the 2000 Charge in its Report since more than seven
years had passed since its date of entry, but we make no
finding as to willful noncompliance. 5
A. Background of the FCRA
Congress enacted the FCRA with the express purpose of
ensuring that consumer reporting agencies (CRAs) provide
5
TSP alternatively argues that we should affirm the district court’s
dismissal of FCRA claims because Moran has not suffered an actual
injury from alleged improper reporting since Maple Square relied upon
Moran’s properly included 2006 conviction when denying his
application. However, the statute explicitly permits recovery without
proof of actual damages. See 15 U.S.C. § 1681n(a)(1)(A) (allowing an
award of “any actual damages sustained by the consumer . . . or damages
of not less than $100 and not more than $1,000” if one willfully fails to
comply with the statute) (emphasis added). Accordingly, we cannot
affirm on this ground.
14 MORAN V. THE SCREENING PROS
information “in a manner which is fair and equitable to the
consumer, with regard to the confidentiality, accuracy,
relevancy, and proper utilization of such information.” 15
U.S.C. § 1681(b). The FCRA seeks to protect consumers by
limiting the type of information a CRA may disclose about
an individual. See Guimond v. Trans Union Credit Info. Co.,
45 F.3d 1329, 1333 (9th Cir. 1995) (“The legislative history
of the FCRA reveals that it was crafted to protect consumers
from the transmission of inaccurate information about them
. . . .”).
The relevant portion of the original 1970 statute
provided:
[N]o consumer reporting agency may make
any consumer report containing any of the
following items of information:
...
(2) Suits and judgments which, from date of
entry, antedate the report by more than seven
years or until the governing statute of
limitations has expired, whichever is the
longer period.
...
(5) Records of arrest, indictment, or
conviction of crime which, from date of
disposition, release, or parole, antedate the
report by more than seven years.
MORAN V. THE SCREENING PROS 15
(6) Any other adverse item of information
which antedates the report by more than
seven years.
15 U.S.C. § 1681c(a) (1970) (emphasis added). Section
1681c(a)(5) originally included a clear trigger date for
indictment records: the date of disposition. In 1990, the
Federal Trade Commission (FTC), the agency responsible
for enforcing the FCRA, released a report providing its
guidance and interpretations of the FCRA. See FTC,
Commentary on the Fair Credit Reporting Act, 55 Fed. Reg.
18, 804 (May 4, 1990) (1990 Commentary). The 1990
Commentary confirmed, “if charges are dismissed at or
before trial, or the consumer is acquitted, the date of such
dismissal or acquittal is the date of disposition.” Id.
However, Congress substantially altered § 1681c when
it amended the FCRA in the Consumer Reporting
Employment Clarification Act of 1998, Pub. L. No. 105-347,
112 Stat. 3208, 3211. As amended, the relevant portions of
the statute provide:
[N]o consumer reporting agency may make
any consumer report containing any of the
following items of information:
...
(2) Civil suits, civil judgments, and records
of arrest that, from date of entry, antedate the
report by more than seven years or until the
governing statute of limitations has expired,
whichever is the longer period.
...
16 MORAN V. THE SCREENING PROS
(5) Any other adverse item of information,
other than records of convictions of crimes
which antedates the report by more than
seven years.
15 U.S.C. § 1681c(a) (2010) (emphasis added). 6 The statute
no longer separately lists indictment records, and instead
relegates them to § 1681c(a)(5)’s “adverse item” catchall
category. Records of arrest moved to a different section,
(a)(2), and the statute no longer imposes reporting
restrictions for criminal convictions. Notably, the
amendment also removed any reference to “date of
disposition” in § 1681c(a). Instead, the statute now names
“date of entry” as the triggering date for civil suits, civil
judgments, and records of arrest, and remains silent about
“adverse items.”
B. FCRA’s seven-year window
Which date triggers the reporting window under
§ 1681c(a) is a matter of statutory interpretation, and we
begin with the plain language of the statute. Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or
ambiguity of statutory language is determined by reference
6
We note that there is a simple scrivener’s error in § 1681c(a)(5).
A comma should be included to separate the exclusionary clause as
follows, “Any other adverse item of information, other than records of
convictions of crimes[,] which antedates the report by more than seven
years.” The statute’s plain meaning and structure intended to restrict
reporting of adverse information with the exception of convictions. See
also FTC Staff Report, 40 Years of Experience with the Fair Credit
Reporting Act at 57 (July 2011), (2011 Report) (“A CRA is not permitted
to report criminal records other than convictions beyond seven years
. . . .”), https://www.ftc.gov/sites/default/files/documents/reports/40-
years-experience-fair-credit-reporting-act-ftc-staff-report-summary-
interpretations/110720fcrareport.pdf.
MORAN V. THE SCREENING PROS 17
to the language itself, the specific context in which that
language is used, and the broader context of the statute as a
whole.”). If the language is ambiguous, we look to “canons
of construction, legislative history, and the statute’s overall
purpose to illuminate Congress’s intent.” Jonah R. v.
Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006).
As stated above, § 1681c(a)(5) prohibits reporting “[a]ny
other adverse item of information . . . which antedates the
report by more than seven years.” 15 U.S.C. § 1681c(a)(5).
The parties agree that a criminal charge is an adverse
event—its disclosure could have an unfavorable bearing on
a consumer’s ability to lease housing. While § 1681c(a)(5)
does not specifically state the date that triggers the reporting
window, the plain language of the statute suggests that for a
criminal charge, the date of entry begins the seven-year
window. The statute’s use of “antedates” connects the
seven-year window directly to the adverse event itself. A
charge is an adverse event upon entry so it follows that the
date of entry begins the reporting window.
We find further support of this construction in the FTC’s
interpretation of the statute. In 2011, the FTC issued a new
staff report rescinding the 1990 Commentary. The 2011
Report includes a new comment for § 1681c(a)(5) that
governs adverse information: “[t]he seven year reporting
period for criminal record information ‘other than
convictions of crimes’ runs from the date of the reported
event.” 2011 Report at 57. A criminal charge is indisputably
criminal record information. This comment explains that the
date of the reported event, here, the date the criminal charge
is entered, triggers the seven-year window.
TSP counters that the dismissal of a charge is also an
adverse event and that it would be nonsensical to bar CRAs
from reporting criminal charge information seven years after
18 MORAN V. THE SCREENING PROS
the date of entry, but to allow reporting dismissal
information if it came within seven years from the date of
disposition. We disagree, and find that the dismissal of a
charge is not per se an adverse item. A dismissal indicates
that the consumer no longer faces an indictment, an overall
positive—but at least neutral—development. A dismissal is
only adverse insofar as it discloses the previous adverse
event, i.e., the charge. Even though non-adverse information
is typically not subject to reporting windows, a dismissal is
different. A dismissal necessarily references the existence
of the adverse event, to which the reporting window still
applies. See 2011 Report at 55 (“Even if no specific adverse
item is reported, a [CRA] may not furnish a consumer report
referencing the existence of adverse information that
predates the times set forth in [§ 1681c(a)].”). Both events
must be considered as part of the same criminal record and
neither may be reported after seven years from the “adverse
item,” the charge. Reporting the dismissal alone would
reveal the existence of the charge, which after seven years,
constitutes outdated criminal history information. A related
later event should not trigger or reopen the window, as the
adverse event already occurred. To hold otherwise, thereby
allowing this information to be reported through disclosure
of a dismissal, would circumvent Congress’s intent to
confine adverse criminal information to a seven-year
window. 7
7
We recognize that some lower court decisions reached the same
result under different reasoning. In Haley v. TalentWise, Inc., 9 F. Supp.
3d 1188, 1192 (W.D. Wash. 2014), the district court held that a dismissed
charge is an “adverse item,” as its disclosure may bear unfavorably on
the consumer. Id. While we clarify today that a dismissal is not a
separate adverse item—the charge is the adverse item, which the
dismissal necessarily discloses—the dismissal in Haley was still
improperly included because the charge was entered over seven years
MORAN V. THE SCREENING PROS 19
The FCRA’s legislative history, with a focus on the 1998
amendment, also supports our reading of § 1681c(a)’s text.
The “date of disposition” language no longer remains in the
relevant section of the statute. Congress’s removal of “date
of disposition” altogether suggests an intent to keep records
current by starting reporting windows sooner. However,
Congress used a “date of entry” for civil suits, civil
judgments, and records of arrest, but failed to do so for
adverse items. “[W]here Congress includes particular
language in one section of a statute but omits it in another
. . . , it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
Keene Corp. v. United States, 508 U.S. 200, 208 (1993)
(alteration in original) (quoting Russello v. United States,
464 U.S. 16, 23 (1983)). While this maxim generally guides
our statutory analysis, we find it inappropriate to do so here.
Courts must presume that Congress intends statutory
changes “to have real and substantial effect,” Stone v. INS,
514 U.S. 386, 397 (1995). If we were to find the failure to
specify “date of entry” in § 1681c(a)(5) as indicative of a
“date of disposition” trigger date, this would effectuate no
change for an indictment record despite a significantly
altered statute. Instead, we heed the Court’s admonition that
“[n]ot every silence is pregnant,” and Congress’s silence
may merely reflect its belief that the plain language suffices.
Burns v. United States, 501 U.S. 129, 136 (1991) (alteration
in original) (quoting State of Illinois Dep’t. of Pub. Aid v.
Schweiker, 707 F.2d 273, 277 (7th Cir. 1983)), abrogated on
other grounds by United States v. Booker, 543 U.S. 220
before the report. See also Dunford v. Am. DataBank, LLC, 64 F. Supp.
3d 1378, 1392–93 (N.D. Cal. 2014) (similarly finding that a dismissed
charge is an adverse item and was improperly included in a consumer
report).
20 MORAN V. THE SCREENING PROS
(2005). The plain language of “adverse item” suggests that
Congress intended the trigger date to begin on the date the
adverse event occurred or the date of entry.
The only statutory support for the dissent’s claim that
Congress intended to broaden the reporting windows is that
convictions may be reported indefinitely following the 1998
amendment. While technically true, the amendment
simultaneously limited the reporting windows for civil suits,
civil judgments, and records of arrest, and removed the date
of disposition language for adverse items, all of which
strongly suggests a Congressional intention to narrow
reporting windows. The unique nature of convictions further
undermines the dissent’s argument. A conviction indicates
that the government met its burden to prove beyond a
reasonable doubt that the consumer committed a crime. In
contrast, records of arrest or criminal charges do not prove
that the consumer engaged in criminal activity. As a result,
when one considers such records in the context of the FCRA,
she cannot properly impute the same Congressional intent to
reports not involving criminal convictions.
TSP argues that the date of disposition remains valid
because the 2011 Report indicates that the 1990
Commentary is only “partially obsolete.” 2011 Report at 7.
The 2011 Report specifically states that it “incorporates
material from the following sources: Interpretations from the
1990 Commentary on sections of the FCRA that have not
been amended, which staff continues to believe are timely,
accurate, and helpful.” Id. It also notes, “Even though the
1990 comments listed in the endnotes are not precisely
duplicated in the 2011 [Report], staff believes the references
will assist readers where a 1990 comment is a source for an
interpretation here.” Id. at 16 n.60. TSP argues that because
the 2011 Report folds in much of the 1990 Commentary, the
MORAN V. THE SCREENING PROS 21
date of disposition should remain the triggering date. The
district court agreed with TSP and placed heavy reliance on
endnote 194 following the 2011 Report’s comment that
“[t]he seven year reporting period for criminal record
information . . . runs from the date of the reported event.”
Id. at 57. The endnote cites “1990 comment 605(a)(5)-2,”
which states: “[t]he seven year reporting period runs from
the date of disposition, release or parole, as applicable. For
example, if charges are dismissed at or before trial, or the
consumer is acquitted, the date of such dismissal or acquittal
is the date of disposition.” 16 C.F.R. app. pt. 600 cmt.
605(a)(5)(2) (2010). We disagree with TSP’s and the district
court’s reliance on the 1990 Commentary.
It is counterintuitive to place authoritative weight on
rescinded commentary over the plain language of both the
statute and the 2011 Report. The 2011 Report relies on
interpretations from the 1990 Commentary only “on sections
of the FCRA that have not been amended” and in 1998,
Congress amended this section. 2011 Report at 7 (emphasis
added). The 1998 amendment of the FCRA specifically
removed the “date of disposition” language. Furthermore,
the 2011 Report comment states that the trigger date is “the
date of the reported event” or the date of the entry. The
statute and the 2011 Report support our conclusion that the
date of entry triggers the reporting window. An endnote
citation to a directly conflicting provision in the rescinded
1990 Commentary does not compel a different outcome.
It is informative that the Consumer Financial Protection
Bureau (CFPB) and the FTC agree that the date of entry
should be the triggering date. See Brief for CFPB & FTC as
Amici Curiae Supporting Appellant, 11. They stipulate that
“[t]o the extent there is any ambiguity, the [FTC] now
clarifies that the [2011 Report] referred to 1990 Comment
22 MORAN V. THE SCREENING PROS
605(a)(5)-2 merely to flag the previous interpretation for an
interested reader, not to suggest that Comment 605(a)(5)-2
articulated the governing standard notwithstanding the
change in the statute.” Id. at 22. This explanation, while not
binding, provides context for the endnote primarily relied
upon by the district court.
Lastly, the purpose of the FCRA warrants an
interpretation that favors the consumer. Guimond, 45 F.3d
at 1333 (“[The statute’s] consumer oriented objectives
support a liberal construction of the FCRA.”). The FCRA
aims to protect consumer information by limiting reporting
periods for certain types of information to ensure only
current and relevant information is disclosed. For a criminal
charge, starting the permissible seven-year reporting period
at the date of entry is congruent with the objectives of the
FCRA.
For the cited reasons, we hold that the seven-year
reporting window for a criminal charge begins on the date of
entry. We additionally hold that the dismissal of a charge
does not constitute an adverse item and may not be reported
after the reporting window for the charge has ended.
CONCLUSION
The district court erred by concluding that the ICRAA is
unconstitutionally vague as applied to tenant screening
applications. We are bound by the California Supreme
Court’s holding in Connor that the ICRAA overlaps with the
CCRAA, which forecloses TSP’s argument that the statutory
scheme is unconstitutionally vague. Accordingly, we
reverse and remand to the district court to consider the merits
of Moran’s ICRAA claims. We further remand to the district
court to analyze whether Moran stated a claim pursuant to
the UCL predicated on TSP’s alleged violations of the
MORAN V. THE SCREENING PROS 23
ICRAA. Finally, we hold that the FCRA permits consumer
reporting of a criminal charge for only seven years following
the date of entry of the charge. The Report’s inclusion of the
2000 Charge fell outside of the permissible seven-year
window, and thus, Moran sufficiently stated claims pursuant
to the FCRA.
Accordingly, we REVERSE the district court and
REMAND for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
KLEINFELD, Senior Circuit Judge, concurring in part and
dissenting in part:
I join in Parts I and II of the analysis. I respectfully
dissent from Part III. We should affirm the district court’s
judgment regarding the Fair Credit Reporting Act.
Moran alleges in his complaint that he applied for
housing at Maple Square, and was rejected because of his
credit report. The credit report disclosed a substantial
criminal history, including a conviction for embezzlement
and theft from an older or dependent adult, and charges of
forgery, burglary, and for being “under the influence of a
controlled substance.” The conviction and charges of the
more serious crimes were all reportable, and the credit
report’s disclosures of them are not at issue (as to the federal
claim). The crime report that is at issue is the March 2004
dismissal of a charge for being “under the influence of a
controlled substance,” filed in May of 2000. The filing date
for the charge was more than seven years before the credit
report, but the dismissal four years later was within the seven
24 MORAN V. THE SCREENING PROS
year limit. The majority opinion holds that the credit
reporting agency violated the federal statute by reporting that
dismissal, despite its being within the seven year window,
because its disclosure would necessarily imply the existence
of the charge, filed four years earlier. The words of the
statute, though, plainly make the dismissal reportable.
Moran is not entitled to keep it secret from prospective
landlords, employers, and creditors just because it stemmed
from a criminal charge four years earlier.
I. THE WORDS OF THE STATUTE
As the majority concedes, we are required to start our
analysis with the language of the statute. The statute says
that no consumer reporting agency may make a consumer
report containing various items of information, including
bankruptcies more than ten years old, civil suits and
judgments and records of arrest more than seven years old,
tax liens and accounts placed for collection more than seven
years old, and “any other adverse item of information, other
than records of convictions[,]” more than seven years old.
Here is the exact language bearing on criminal cases:
(2) Civil suits, civil judgments, and records
of arrest that, from date of entry, antedate the
report by more than seven years . . . .
(5) Any other adverse item of information,
other than records of convictions of crimes[,]
which antedates the report by more than
seven years. 1
The only judicial determinations needed are whether a
dismissal of a criminal charge falls within the statutory
1
15 U.S.C. § 1681c(a) (2010).
MORAN V. THE SCREENING PROS 25
category, “any other adverse item of information other than
records of convictions of crimes,” and whether the record of
dismissal “antedates the report by more than seven years.”
The dismissal in this case is an adverse item of information,
because it reveals prior contact with the criminal justice
system, and did not antedate the report by more than seven
years, so it was permissibly reported.
That should be the end of the matter. Today’s majority,
though, takes a path without support in the text of the statute,
and without support from any of our sister circuits,
mistakenly holding that even if a dismissal is an adverse item
of information within seven years, it may not be reported if
it arises from a charge more than seven years old. The
closest statutory categories are records of arrest, that cannot
be reported more than seven years later, and records of
convictions, that can be reported forever. A dismissal is
neither one.
II. THE NATURE OF DISMISSALS
Readers unfamiliar with the details of the criminal
process, especially at the misdemeanor level, may be
surprised that the possession charge was not dismissed until
almost four years after it was filed. An explication of how
dismissals come about may be helpful.
Perhaps the most common use of a dismissal is to relieve
an individual of some collateral consequences of conviction
after successful completion of probation, jail time, or both.
Such a dismissal means that the defendant behaved himself
after sentencing, and not that he was found innocent or
“cleared.” In many localities, the criminal bar’s shorthand
for this is “SIS,” meaning “suspended imposition of
sentence,” often obtained in exchange for a guilty plea. For
example, in California, the Penal Code provides that the
26 MORAN V. THE SCREENING PROS
court “in the order granting probation, may suspend the
imposing or the execution of the sentence” subject to
satisfaction of conditions it may set. 2 As a condition of
probation, the court “may imprison the defendant in a county
jail” up to the maximum for the crime. 3 If the defendant has
done his time and fulfilled the other conditions of probation,
the court may allow him to withdraw his guilty plea. The
court must then dismiss the charge, releasing the defendant
from many but not all the penalties and disabilities resulting
from the offense of conviction. 4 “A dismissal under
[California Penal Code] section 1203.4 . . . is in no way
equivalent to a finding of factual innocence. Section 1203.4
simply authorizes a court to grant relief to individuals who
successfully complete the terms of probation by mitigating
some of the consequences of conviction.” 5
There is nothing obscure about “SIS” followed by
probation, sometimes jail, and then dismissal. It is typical of
California’s sentencing scheme as well as those of other
states. 6 And it is the routine object of defense counsel
“pleading out” a client’s misdemeanor. Bargaining with the
assistant district attorney often turns on whether the
2
Cal. Penal Code § 1203.1(a) (2012).
3
Id.
4
Id. § 1203.4(a)(1).
5
Baranchik v. Fizulich, 217 Cal. Rptr. 3d 423, 435 (Cal. Ct. App.
2017), review denied (July 12, 2017).
6
See Alaska Stat. § 12.55.085; Ariz. Rev. Stat. Ann. § 13-907; Haw.
Rev. Stat.§§ 712-1255, 712-1256, 853-1, 853-4; Idaho Code Ann.
§§ 19-2601. 19-2604(1), (2); Mont. Code Ann. §§ 46-18-201, 46-18-
204; Nev. Rev. Stat. Ann. §§ 458.300, 458.330; Or. Rev. Stat. § 137.225;
Wash. Rev. Code §§ 3.66.067, 9.95.200.
MORAN V. THE SCREENING PROS 27
defendant will get a suspended sentence, where the
conviction will stand, or suspended imposition of sentence,
where the charge will be dismissed following compliance
over a period of time after the guilty plea with various
conditions.
Dismissals also occur where assistant district attorneys
and police officers fail to show up in court at the scheduled
times for trial. This almost never happens in well disciplined
jurisdictions, but occurs with some frequency in poorly
disciplined locales. Where there is no prosecutor to
prosecute, and no police officer to provide testimony (many
misdemeanors, such as speeding and reckless driving, do not
need other witnesses), the defendant and defense counsel can
sit on their hands, while the judge, for lack of anyone to
prosecute and prove the case, dismisses it.
Another less common but more serious dismissal comes
when the prosecution is missing a critical witness. In a gang
shooting case, for example, the prosecutor may lack a
witness to establish that the defendant, as opposed to another
gang member, was the shooter. The prosecutor may then be
compelled to dismiss the case before a jury is empaneled (to
avoid a double jeopardy bar). In the most serious cases,
charges may be dismissed because the witnesses are scared
to testify, or are dead. In these cases, the government is free
to bring charges again if witnesses can be found, because
such dismissals are usually without prejudice.
Yet another frequent cause of dismissal occurs when a
defendant is convicted of crimes generating enough jail or
prison time so that the prosecutor sees no need to prove
more. When a defendant pleads guilty to a crime and agrees
to a sentence deemed adequate, the prosecutor will
ordinarily dismiss other, less serious charges. Often a
defendant pleads guilty to one or more counts of an
28 MORAN V. THE SCREENING PROS
indictment and the other guilty counts are dismissed. The
prosecutor dismisses the lesser charges because they would
likely lead to in-custody time concurrent with and less than
the prison time already assured. Far from “clearing” the
defendant, the dismissal means that the defendant pleaded
guilty to other crimes generating an adequate sentence. Plea
agreements in federal court also frequently stipulate to a
sentence increased by the dismissed charges as “relevant
conduct,” so that the defendant can be punished for them
without the need for the prosecutor to prove them beyond a
reasonable doubt. 7
Occasionally, but not often, a dismissal is evidence of
innocence. In every criminal defense lawyer’s career there
comes a time, or perhaps a few times, when a prosecutor is
persuaded that the person charged did not commit the crime
and did not commit some lesser crime to which the charge
might be reduced. After such a dismissal, the defense
lawyer’s office likely will be disrupted by loud shouts of joy
on this rare and wonderful occasion. But this does not
happen very often.
Though the occasional dismissal does mean that the
prosecutor was indeed satisfied that the person accused was
innocent, most follow an adjudication of guilt. Quite a few,
such as the ones that follow a suspended imposition of
sentence or various kinds of probation, are more like
convictions. 8 They typically establish that the defendant
7
See also United States v. Watts, 519 U.S. 148, 157 (1997) (“[A]
jury’s verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as that
conduct has been proved by a preponderance of the evidence.”).
8
See also Aldaco v. RentGrow, Inc., — F.3d —, —, No. 18-1932,
2019 WL 1615295, at *1 (7th Cir. Apr. 16, 2019) (holding record of
MORAN V. THE SCREENING PROS 29
pleaded guilty or was convicted at trial, and then satisfied
post-conviction conditions.
Do dismissals then fall within the statutory category of
“any other adverse item of information”? As the above
explanation shows, dismissals are by their nature not the
same as arrests, charges, or convictions. Arrests and charges
amount to mere accusations subject to a presumption of
innocence, 9 but dismissals are typically more like
convictions, and follow guilty pleas.
Dismissals are “adverse items of information” because
they establish contact with the criminal justice system.10
The only way to read “any other adverse item of
information” is to mean “any” item of information that is
“adverse.” “Adverse” in this context means information that
would make a potential lender, landlord, or employer, less
likely to lend to, rent to, or employ, the individual or would
at least lead to further inquiry. Someone considering
whether to employ an individual, rent an apartment to him,
or lend him money, will want to know whether the individual
guilty plea and sentence for battery was a “conviction” for purposes of
the Fair Credit Reporting Act even after dismissal of the charge
following compliance with the conditions of supervision).
9
See Manual of Model Criminal Jury Instructions for the Ninth
Circuit, § 1.2 The Charge - Presumption of Innocence (2010) (explaining
an indictment “simply describes the charge[s]” and “is not evidence and
does not prove anything”).
10
Equifax Inc. v. FTC., 678 F.2d 1047, 1050 (11th Cir. 1982) (“As
defined by the [Federal Trade] Commission[,] adverse information
means[] information which may have, or may reasonably be expected to
have, an unfavorable bearing on a consumer’s eligibility or qualifications
for . . . benefit[s].” (citation omitted)).
30 MORAN V. THE SCREENING PROS
has had contact with the criminal justice system. Although
not as “adverse” as convictions, dismissals, by conveying
that the individual has had contact with the criminal justice
system, may negatively impact the individual’s ability to
obtain various benefits. The statute balances the interests of
landlords, lenders, and employers with those of consumers,
by allowing for the reporting of such information, but not
after seven years.
Moran’s 2004 dismissal, almost four years after the
charge, suggests that Moran, in all likelihood, behaved
himself and conformed to the conditions of release for four
years after a guilty plea. 11 Because the dismissal puts Moran
in a bad light, it was adverse, so reportable only within the
seven years window, as it was.
III. LEGISLATIVE HISTORY
We have significant legislative history in this case, that
is, changes adopted by Congress, as opposed to this or that
individual Congressman or staff person expressing a view.
The 1970 version of the statute had the same language that
the now applicable 1998 version has about “any other
adverse item of information . . . which antedates the report
by more than seven years.” 12 But there were two major
changes. In the ellipsis above for adverse items of
information, the 1998 version of the statute introduced an
exception for convictions. It was amended to say “any other
adverse item of information, other than records of
11
Moran argued below that this the dismissal at issue did not fall
under California Penal Code § 1203.4.
12
The “catchall” provision has been maintained in later iterations of
the statute.
MORAN V. THE SCREENING PROS 31
convictions of crimes[,] which antedates the report by more
than seven years.” 13 The statute used to prohibit reports of
“convictions of crime which, from date of disposition release
or parole, antedate the report by more than seven years.”14
Thus, Congress used to require old convictions to be omitted
from reports after seven years. Now they are reportable
forever. The other change is that the old version of the
statute said that records of arrest or indictment, not just
convictions, “which from the date of disposition, release or
parole, antedate the report by more than seven years,” are not
reportable. The statute still says that stale records of arrest,
those antedating the report by more than seven years, are
unreportable. 15 But it no longer separately addresses
indictments. As with dismissals, indictments either fall
within the category of “any other adverse item of
information,” which become unreportable after seven years,
or they are not adverse items of information, in which case
they can be reported forever.
These changes open up reporting of convictions from
seven years, to forever. For old arrests, and “any” other
adverse items of information, including indictments, the
seven year window applies. Nothing in the statute starts the
seven year window, for arrests, indictments, or any other
adverse information, at any earlier time than the item of
13
15 U.S.C. § 1681c(a)(5) (1998) (emphasis added).
14
15 U.S.C. § 1681c(a)(6) (1970).
15
That the seven-year limit for records of arrest now runs from “date
of entry” as opposed to “date of disposition” does not support the
majority’s view that Congress intended to narrow reporting. For records
of arrest, the “date of entry” and “date of disposition” are one and the
same—the date the arrest was entered into police records.
32 MORAN V. THE SCREENING PROS
information itself. They all, of course, would not exist but
for the earlier crime or suspicion of crime.
The majority opinion somehow infers from these
statutory changes that Congress sought to protect people
more than it had before from having their criminal history
reported. That is an illogical inference. Convictions used to
become stale in seven years, but now they stay alive forever.
That expands allowable reporting rather than limiting it. As
the majority concedes, indictments are also indeed adverse
information, so that even though the new version of the
statute does not mention them, they still become
unreportable after seven years as “any other adverse item of
information.” One adverse item of information, convictions,
are no longer shielded by the seven year limit, and the rest
stay the same. The change was in the opposite direction,
exempting convictions from the seven year reporting limit.
The change shows that Congress concluded that lenders,
landlords, and employers needed to know more about
convictions. Those who find legislative history helpful
should look to the remark in the Congressional Record that
the legislation exempted convictions from the seven year
reporting limit because “this information may be of critical
value to prospective employers, especially in the areas of
child or elderly care, school bus driving and household
services.” 16 Although the legislative history says that “[t]he
primary issue addressed by the bill relates to problems
encountered by a limited number of firms that provide
employment screening for national trucking companies,” 17
16
144 Cong. Rec. H10218-02, 1998 WL 716421 (Oct. 8, 1998).
17
Id.
MORAN V. THE SCREENING PROS 33
this Congressional liberalization applies equally to rental
determinations.
IV. ADMINISTRATIVE INTERPRETATION
In their amicus brief, the Consumer Financial Protection
Bureau (the “Bureau”) and the Federal Trade Commission
(the “Commission”) urge us to overturn their previous
interpretation of the statute. The majority opinion accepts
their invitation, not even mentioning that credit reporting
agencies, lenders, landlords, and employers have long relied
on the established Commission practice.
As we have explained, neither the new nor old version of
the statute speaks expressly to dismissals. The older version,
set out verbatim above in the majority opinion, had two
subsections bearing on staleness of criminal matters for
purposes of credit reporting. Subsection 5 made records of
“arrest, indictment, or conviction of a crime” stale seven
years from disposition, release, or parole. Subsection 6
made “any other adverse item of information” stale in seven
years. The new version, set out verbatim above, eliminates
Subsection 5, addressing records of “arrest, indictment, or
conviction.” 18 The “any other adverse item of information”
subsection is identical to the previous version of the statute,
except that it makes an exception for records of convictions.
They are never stale and may be reported forever.
In 1990, the Commission issued commentary, though no
regulations, interpreting the old version. They are found in
the appendix to Part 600 of the Code of Federal Regulations.
18
Only records of arrest were expressly maintained in another
subsection.
34 MORAN V. THE SCREENING PROS
The commentary says expressly what is implied by the
statute, that “the act imposes no time restriction on reporting
of information that is not adverse.” 19 That means that if
dismissals are not adverse items of information, they can be
reported forever. The commentary assumes, though, that
dismissals are indeed adverse, stating that charges become
stale and unreportable seven years from the dismissals,
rather than, as the majority would have it, seven years from
the entry of charges. “The seven year reporting period runs
from the date of disposition, release, or parole, as applicable.
For example, if charges are dismissed at or before trial, or
the consumer is acquitted, the date of such dismissal or
acquittal is the date of disposition.” 20 Because the seven
year limit for charges are expressly tied to their
“dispositions,” dismissals must also be considered “adverse”
for any reporting limit to be effective. It is also worth noting
that the commentary sensibly assumes that even an acquittal
is an adverse item of information. Both an acquittal and a
dismissal evidence a contact with the criminal justice
system, so recipients of credit reports may regard them as
adverse.
In 2011, as interpretative authority was being handed
over from the Commission to the newly created Bureau, the
Commission issued a “staff report.” 21 Though noting the
19
Federal Trade Commission, Statements of General Policy or
Interpretation: Commentary on the Fair Credit Reporting Act, 55 Fed.
Reg. 18,804-01 (May 4, 1990).
20
Id.
21
Federal Trade Commission, 40 Years of Experience with the Fair
Credit Reporting Act: An FTC Staff Report with Summary of
Interpretations (July 2011).
MORAN V. THE SCREENING PROS 35
partial obsolescence of the 1990 commentary because of the
passage of time and adoption of various amendments, the
Commission thought its “compendium of interpretations . . .
w[ould] be of use to the [Bureau] staff, [and] the businesses
subject to the Commission’s jurisdiction” under the statute.
As for interpretations of unamended sections, like the
staleness of “any other adverse item of information,” the
report incorporated interpretations from the 1990
commentary that the “staff continue[d] to believe [we]re
timely, accurate, and helpful.” 22
The 2011 staff report, which like the previous guidance,
did not have the force of regulations, made no change
regarding when a dismissal becomes stale, and was clear that
“the seven-year reporting period applies only to adverse
information that casts the consumer in a negative or
unfavorable light.” 23 That the report may not have
incorporated the old “disposition” time period comment
from the 1990 commentary makes no difference in the
reporting of dismissals. For criminal record information
other than convictions of crimes, the report says that the
seven years “runs from the date of the reported event”—that
is, for dismissals, the date the dismissal was filed.
There has been no new regulation, commentary,
guidance memorandum, or published interpretation of any
kind opining on the reporting of dismissals. Thus, there is
nothing for the majority to defer to except the new litigation
position taken by the Bureau, which argues in its brief that a
dismissal becomes stale seven years from the charge. And
it is unclear how the Bureau’s new position should be
22
Id. at 7.
23
Id. at 55.
36 MORAN V. THE SCREENING PROS
applied, since there are typically multiple charges over a
period of months or even years in a criminal case. After the
filing of an initial criminal complaint, there may be an
amended complaint, an indictment or information, and
frequently an amended indictment. Which charge would
start the seven years?
Nor, of course, does the Bureau’s brief have the force of
law as a regulation would, or even the utility to the
commercial world and consumers of published guidance.
No Chevron deference applies to “a convenient litigation
position” taken in a brief. 24 In our en banc decision in Price
v. Stevedoring Services of America, we held that our
previous rule requiring Chevron deference to reasonable
litigating positions of the Director of the Office of Workers’
Compensation Program in interpreting the Longshore and
Harbor Workers’ Compensation Act could not be reconciled
with Supreme Court precedent. 25 Distinguishing between an
agency’s litigating position as to its governing statute as
opposed to that of its own regulations, 26 we held that the
Director’s “litigating position . . . does not merit Chevron
deference” in the interpretation of the Longshore Act in the
absence of, inter alia, formal regulations and Congressional
intent to imbue litigating positions the force of law. 27 Nor
does a litigating position even merit Skidmore deference
24
See Presidio Historical Ass’n v. Presidio Tr., 811 F.3d 1154, 1166
(9th Cir. 2016); Indep. Training & Apprenticeship Program v. California
Dep’t of Indus. Relations, 730 F.3d 1024, 1034 (9th Cir. 2013).
25
697 F.3d 820, 826 (9th Cir. 2012) (en banc).
26
Id. at 828.
27
Id. at 827–31.
 MORAN V. THE SCREENING PROS 37
where it is not persuasive. 28 In the case before us, there is
no ambiguity in the statute that even opens the door to
deference. 29 There is nothing but a litigating position. And
the Bureau’s litigating position is unpersuasive because of
its lack of support in the text of the statute and its disregard
of reliance on the Commission’s long established position to
the contrary.
We owe some deference to long established commercial
norms, in the absence of any change of applicable laws or
regulations. As one of the amici points out, “the [statute] has
been interpreted for decades to permit [credit reporting
agencies] to report the dismissal of an indictment when the
dismissal occurred within seven years of the report.” 30 In
the absence of new law or regulation to the contrary, we
should not defer at all to the Bureau’s litigating position that
unfairly subjects issuers of credit reports to statutory
damages and attorney’s fees awards for doing what has been
done with approval of federal regulatory authorities for
decades. It is unfair in the extreme to enable a regulatory
agency to overturn decades of reliance on an established
procedure in amicus briefs that no one outside the agency
can comment on before they are issued, and that in all
likelihood will be undiscovered by anyone outside the
28
Id. at 832; see also Presidio, 811 F.3d at 1166 n.7 (“Our approach
to Skidmore deference vis-a-vis an agency’s litigating position has varied
depending on the factual circumstances.”).
29
Because there is no regulation in this case, there is also no agency
interpretation of its own regulation that may be entitled to Auer
deference. See Auer v. Robbins, 519 U.S. 452, 461 (1997).
30
Brief of National Multifamily Resident Information Council as
Amici Curiae Supporting Affirmance, 3.
38 MORAN V. THE SCREENING PROS
litigation. “A longstanding administrative interpretation
upon which private actors have relied aids in construction of
a statute precisely because private parties have long relied
upon it.” 31
There is also no statutory support or logical consistency
to prohibiting reporting of dismissals but allowing reporting
of other adverse information, where the other adverse
information also stems from the same occurrence.
Everything has a history. All later developments in a
criminal case, not just dismissals, necessarily imply the
existence of preceding developments. An indictment, for
example, usually implies an earlier arrest. A conviction
usually implies a record of arrest and of a charge. The only
adverse item of information that does not imply an earlier
incident in the criminal process is the commission of the
crime, if there was one. Similarly, in the civil context, if
someone signs a note and a 30-year mortgage in 2005 but
quits making monthly payments in year 10, it should be
obvious enough that a credit report in 2015 would properly
disclose the default. Yet under the majority’s logic (not
Congress’s), the default should be unreportable because it
necessarily implies the existence of the note and mortgage
which were signed more than seven years earlier. The
statute plainly allows for reporting of “any” adverse item of
information, with no exception for adverse items that would
not exist but for some earlier event.
31
Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co.,
747 F.3d 673, 686 (9th Cir. 2014) (citing 2B Norman J. Singer & J.D.
Shambie Singer, Sutherland Statutes and Statutory Construction § 49:3
(7th ed. 2012)).
MORAN V. THE SCREENING PROS 39
The practical consequences of the majority’s view
illuminate why Congress did not go the majority’s way. As
explained earlier, the 1998 amendments were designed, in
part, to provide more “information [that] may be of critical
value to prospective employers, especially in the areas of
child or elderly care, school bus driving and household
services.” 32 These concerns about public safety led to the
exception from the seven year bar for convictions. Though
convictions are reportable forever, dismissals are by
themselves, even without reference to the charges, sufficient
to put on notice a prospective landlord, employer, or creditor
of a person’s involvement with the criminal justice system.
If a charge of some sort of sex crime were dismissed
pursuant to a plea bargain, a couple of years after the charges
were filed (a common enough occurrence), a daycare facility
might still want to be careful about employing the individual
on account of the dangers sex criminals might pose to the
children in its care. Likewise, a landlord, exercising
reasonable care to protect its tenants from harm, would want
to know about dismissals of drug charges of a prospective
renter.
CONCLUSION
In this case, a landlord ordered the credit report. A
landlord gets a credit report not only to gain assurance that
the rent will be paid, but also to protect other tenants and the
real estate itself from harm. Some of us have been
acquainted with people who were killed, or had to flee from
their apartments, because bullets were flying through the
walls or floors on account of criminals in other apartments.
And some of us have been acquainted with landlords whose
property was ruined by the lingering smell of a
32
144 Cong. Rec. H10218-02, 1998 WL 716421 (Oct. 8, 1998).
40 MORAN V. THE SCREENING PROS
methamphetamine lab. In Dunford v. American Databank,
the adverse material included multiple convictions and
dismissals of numerous charges that made the plaintiff
undesirable to the academic nursing program to which she
sought admission, no doubt because of the risk of harm or
death she might have posed to patients. 33 Many criminals
are dangerous, in one way or another, and dismissals of
charges on one or another occasion do not establish that they
did not commit the crimes.
The district court got it right, as have several other
district courts. 34 We should affirm.
33
64 F. Supp. 3d 1378, 1381–82 (N.D. Cal. 2014).
34
See, e.g., Dunford, 64 F. Supp. 3d at 1394; Haley v. TalentWise,
Inc., 9 F. Supp. 3d 1188, 1192 (W.D. Wash. 2014); Tom Chen v. Vertical
Screen, Inc., No. C17-0938, 2017 WL 3704836, at *3 (W.D. Wash. Aug.
28, 2017); see also Landry v. Time Warner Cable, Inc., No. 16-CV-507,
2017 WL 3444825, at *2 (D.N.H. Aug. 9, 2017).