United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2008 Decided February 29, 2008
No. 07-7053
DEREK T. WILSON,
APPELLANT
v.
CARCO GROUP, INCORPORATED,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv02313)
Kevin L. Chapple argued the cause and filed the briefs for
appellant.
James P. Steele argued the cause for appellee. With him on
the brief was Mariana D. Bravo. William J. Carter entered an
appearance.
Before: TATEL, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Derek T. Wilson appeals the district
court’s order granting summary judgment in favor of CARCO
2
Group, Inc. We conclude the Fair Credit Reporting Act does not
always require a plaintiff alleging a violation of 15 U.S.C.
§ 1681e(b) to present expert testimony on the issue of whether
the defendant’s procedures were reasonable. Thus, we reverse
the district court’s order.
I
Viewed in the light most favorable to Wilson, the facts are
as follows. In 2002, Prudential Insurance offered Wilson a job,
contingent upon the satisfactory completion of a background
check. Wilson accepted, and was scheduled to begin on August
12. Around August 1, Prudential retained CARCO to complete
Wilson’s criminal background check in Oklahoma. CARCO
subcontracted with Search & Find to conduct the background
check, and Search & Find retained an outside researcher to
undertake the task.
By August 9, the researcher’s scattershot approach yielded
thirteen “hits,” each apparently corresponding to an individual.
Four days later, Search & Find sent CARCO thirteen “I.D.
pages” with a note saying it was “at a loss.” Prudential then told
Wilson he had criminal charges in Oklahoma—an allegation
Wilson denied. Almost three weeks after being retained, Search
& Find faxed CARCO information on thirteen individuals, six
of whom couldn’t have been Wilson, because their names,
birthdates, and/or races differed from his.
On September 3, Prudential withdrew Wilson’s job offer
because it had “not received a complete and satisfactory
background verification in a reasonable amount of time.” Along
with its withdrawal letter, Prudential enclosed a copy of a
CARCO report which stated, “A criminal record search for
convictions and arrests, where prosecution is pending, was
[initiated] . . . on the subject as follows.” Below this statement,
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a chart listed “Pending” next to the Oklahoma entry for “Wilson,
Derek.”
On the day Prudential withdrew its offer, Wilson began his
own investigation. He contacted the Oklahoma State Bureau of
Investigation and the Oklahoma State Courts Network, both of
which concluded he had no criminal history in the state. Wilson
sent CARCO a letter detailing the results of his investigation.
On September 6, CARCO finally concluded Wilson had no
criminal history in Oklahoma, but Prudential never hired
Wilson. By the time the dust settled, CARCO had taken 36 days
to complete its task. In contrast, Wilson’s own investigation
took ten minutes, spread across 2-3 days.
Wilson sued CARCO in federal court for negligent violation
of the Fair Credit Reporting Act. The district court held a
plaintiff in a 15 U.S.C. § 1681e(b) case always must present
expert testimony; therefore, it granted CARCO’s summary
judgment motion. Wilson appealed.
II
We review summary judgment decisions de novo. See
Czekalski v. Peters, 475 F.3d 360, 362 (D.C. Cir. 2007).
Summary judgment is only proper if “there is no genuine issue
as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c). We “view the
evidence in the light most favorable to [Wilson and] draw all
reasonable inferences in [his] favor.” Czekalski, 475 F.3d at
363.
Under the Fair Credit Reporting Act (“FCRA”),
“[w]henever a consumer reporting agency prepares a consumer
report it shall follow reasonable procedures to assure maximum
possible accuracy of the information concerning the individual
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about whom the report relates.” 15 U.S.C. § 1681e(b) (emphasis
added).1 The standard for judging the reasonableness of
procedures “is what a reasonably prudent person would do under
the circumstances.” Stewart v. Credit Bureau, Inc., 734 F.2d 47,
51 (D.C. Cir. 1984) (per curiam). Applying this standard
“involves weighing the potential harm from inaccuracy against
the burden of safeguarding such accuracy.” Id. Where the
potential harm is great and the burden small, a consumer
reporting agency’s duty to clarify inaccurate or incomplete
information is at its apogee. See Koropoulos v. Credit Bureau,
Inc., 734 F.2d 37, 42 (D.C. Cir. 1984). Congress explicitly
established a private cause of action for negligent FCRA
violations in 15 U.S.C. § 1681o(a). Wilson sued under § 1681o,
alleging CARCO negligently failed to use reasonable procedures
as required by § 1681e(b).
Federal law governs whether the FCRA requires a plaintiff
alleging a violation of § 1681e(b) to present expert testimony as
to the reasonableness of the defendant’s procedures. This court
has previously applied federal law to describe an FCRA
plaintiff’s burden at summary judgment, and we do so again
today. See, e.g., Stewart, 734 F.2d at 51–56 (establishing a
plaintiff’s burden in a § 1681e(b) case without relying on state
law); cf. Koropoulos, 734 F.2d at 42–45 (holding, as a matter of
federal law, that § 1681e(b) at least sometimes “covers . . .
1
The FCRA sometimes requires “strict procedures” in the
employment context. See 15 U.S.C. § 1681k(a). However, we need
not address this issue, because Wilson did not raise a “strict
procedures” claim in the district court. See Holcomb v. Powell, 433
F.3d 889, 903 (D.C. Cir. 2006) (noting we “normally do[] not give
consideration to issues that were neither raised nor decided below”
(quotation marks omitted)).
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incomplete information” as well as technically inaccurate
information).2
Our analysis begins—and ends—with Stewart, which
established “the showing a plaintiff must make for his claim to
survive summary judgment on the issue of the reasonableness of
[defendant’s] procedures.” Stewart, 734 F.2d at 49. Stewart
held an FCRA plaintiff must only “minimally present some
evidence from which a trier of fact can infer that the consumer
reporting agency failed to follow reasonable procedures in
preparing a credit report.” Id. at 51 (emphasis added). In fact,
“a plaintiff need not introduce direct evidence of
unreasonableness of procedures: [i]n certain instances,
inaccurate credit reports by themselves can fairly be read as
evidencing unreasonable procedures, and [an absence of] direct
evidence will not be fatal.” Id. at 52. Applying this precedent,
we conclude the FCRA does not always require a plaintiff
alleging a violation of § 1681e(b) to present expert testimony on
the issue of whether the defendant’s procedures were
reasonable. Stewart is the standard a plaintiff in a § 1681e(b)
case must satisfy at the summary judgment stage; there is not an
additional expert testimony requirement. Expert testimony will
undoubtedly prove helpful in some § 1681e(b) cases. Indeed, as
a practical matter, expert testimony might sometimes be
2
CARCO’s summary judgment motion, Wilson’s opposition
motion, and the district court’s opinion treated Wilson’s claim as an
FCRA claim—not a common law negligence claim. Indeed, the
FCRA expressly preempts state-law negligence claims brought against
“consumer reporting agenc[ies] . . . based on information disclosed by
a user of a consumer report to or for a consumer against whom the
user has taken adverse action” unless the agency acted “with malice
or willful intent to injure [the] consumer.” See 15 U.S.C. § 1681h(e).
Thus, the district court’s citation of a diversity jurisdiction case to
support its conclusion that District of Columbia law applies was
simply incorrect.
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necessary to satisfy Stewart. But it is certainly not required in
all § 1681e(b) cases. Holding otherwise would flatly contradict
Stewart’s conclusion that direct evidence of unreasonableness is
not always required.
The district court granted CARCO’s summary judgment
motion because it held a plaintiff in a § 1681e(b) case always
must present expert testimony; we reverse, because that holding
was erroneous. The issue of whether Wilson carried his burden
under Stewart is not before us. But if CARCO moves for
summary judgment on that ground, the district court should
consider that Wilson must “minimally present some evidence
from which a trier of fact can infer [a] fail[ure] to follow
reasonable procedures,” see Stewart, 734 F.2d at 51 (emphasis
added), and all “reasonable inferences” must be resolved in
Wilson’s favor, Czekalski, 475 F.3d at 363.
III
We reverse the district court’s order granting CARCO’s
summary judgment motion and remand for further proceedings
consistent with this opinion.
So ordered.