Ria Schumacher v. SC Data Center, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 19-3266
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Ria Schumacher

Plaintiff - Appellee

v.

SC Data Center, Inc., doing business as Colony Brands, Inc.

Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: April 27, 2022
Filed: May 3, 2022
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Before KELLY, ERICKSON, and GRASZ, Circuit Judges.
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ERICKSON, Circuit Judge.

In February 2016, Ria Schumacher commenced this purported class action,
alleging SC Data Center, Inc. (“SC Data”) committed three violations of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681-1681x. In May 2016, the parties
reached a tentative settlement agreement. Four days later, the Supreme Court
decided Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), which led SC Data to move to
dismiss this action for lack of standing. Without deciding standing, the district court
approved the settlement. This Court vacated the district court’s approval of the
settlement agreement and remanded for a determination on whether Schumacher has
standing to pursue her claims. Schumacher v. SC Data Center, Inc., 912 F.3d 1104,
1105 (8th Cir. 2019). On remand, the district court determined that Schumacher has
standing as to all three claims. SC Data again appeals. Because Schumacher lacks
Article III standing to bring her FCRA claims, we vacate the district court’s orders
and remand to the district court with directions that the case be remanded to the state
court. See 28 U.S.C. § 1447(c).

I. BACKGROUND

In August 2015, Schumacher applied for employment with SC Data. As part
of the application process, she responded “no” to a question asking whether she had
ever been convicted of a felony. She added the following handwritten explanation:
“was once arrested in 1996 at age 17 and then found Not guilty.”1 Schumacher
signed a certification on the form attesting that the answers she provided to the
questions were true and correct and further authorized SC Data to contact, among
other entities, references, past or present employers, law enforcement agencies, and
“any other sources of information which may be relevant to [her] application for
employment.” SC Data reviewed Schumacher’s application and called her to let her
know that it would send her links to complete pre-employment tests. After
Schumacher completed the tests, she was offered a position to begin on October 21,
2015. SC Data sent Schumacher an orientation email and asked her to complete an
Authorization for Release of Information (“Authorization”) form.

The Authorization notified Schumacher that SC Data intended to use Sterling
Infosystems “to conduct a criminal background search.” It further stated that a
“search will only be conducted once an offer of employment has been made.”

1
According to public records and a book authored by Schumacher, in the late
1990s, Schumacher, among others, was implicated in a murder case involving a drug
deal. Although only 17 years old, she was tried as an adult, convicted, and sentenced
to a term of 25 years in state prison. She was released after serving 12 years.
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Schumacher was directed to read the form because it contained information
pertaining to the FCRA and her rights under the Act. The Authorization contained
five paragraphs of information, including:

• A statement advising Schumacher that the company may refuse or
terminate employment if she provides false or misleading information
on her application or during an interview.
• Authorization for Sterling Infosystems and its representatives “to
make an independent investigation of [her] criminal records
maintained by public and private organizations.” The form also
contained an additional statement applicable to those applying for
motor carrier positions.
• A statement that Schumacher would be provided with a copy of the
report and a written description of her rights under the FCRA prior to
the denial of an assignment, extension, reassignment, or promotion.
• A statement informing Schumacher that if she “disagree[d] with the
accuracy of any of the information in the report” then she had five
days from receipt of the report to notify the company. Upon a
challenge to information in the report, the company advised
Schumacher that it would not make a final decision until after she had
“a reasonable opportunity to address the information contained in the
report.”
• A release of liability from any claims or lawsuits regarding the
information obtained to verify her background, as well as
authorization and a release of liability if the company, upon request,
submits information regarding her employment to government
agencies or private organizations.

SC Data requested, and Sterling Infosystems prepared, a “Background
Screening Report” on Schumacher. After SC Data reviewed the report and one week
before Schumacher was scheduled to start, SC Data called Schumacher and informed
her that it was withdrawing the conditional offer of employment and that a
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confirmation letter would follow. Schumacher was afforded neither an opportunity
to correct nor to explain the results in the report before the employment offer was
withdrawn. Schumacher received a letter two weeks later—one week after her start
date had passed. The letter stated: “The report received as a result of [the
background] check contains information which, if accurate, would prevent us from
offering you employment at this time.” The letter went on to state: “If your intent is
to dispute the Criminal Background Report, it is required you inform us within seven
(7) days from receipt of this letter. A final hiring decision will not be made until
after you have had a reasonable opportunity to address the information contained in
the report.” Enclosed with the letter was the report and a description of her rights
available under the FCRA.

The background report Sterling Infosystems provided to SC Data consisted of
the following components: county criminal records, an enhanced nationwide
criminal search with national sex offender, locator-county validator, and a national
sex offender search. The report stated that a Social Security trace/address locator
search was completed “to locate jurisdiction for purposes of expanding the scope of
the criminal background check.” It specifically explained that the applicant’s Social
Security number was not checked against Social Security Administration records.
The database searches uncovered Schumacher’s 1996 felony convictions for murder
and armed robbery. Handwritten at the top of the report was “offer rescinded - did
not disclose felony K.H.” Schumacher has never disputed the accuracy of the
information. Instead, her claim is premised on a right to contextualize and explain
negative information in her report.

Schumacher, individually and on behalf of others, commenced this action
alleging SC Data committed three violations of the FCRA: (1) taking adverse
employment action based on a consumer report without first providing the report to
the applicant, in violation of 15 U.S.C. § 1681b(b)(3)(A) (“adverse action claim”);
(2) obtaining a consumer report without providing a disclosure form that complied
with the FCRA, in violation of 15 U.S.C. § 1681b(b)(2)(A)(i) (“improper disclosure
claim”); and (3) exceeding the scope of the Authorization by obtaining more
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information than disclosed in the Authorization, in violation of 15 U.S.C.
§ 1681b(b)(2)(A)(ii) (“failure to authorize claim”).

SC Data moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and
12(h)(3) for lack of standing. The district court construed the motion as a factual
attack on jurisdiction. The court initially denied the motion as to the adverse action
claim and granted it as to the two remaining counts. On reconsideration, the district
court discovered that it overlooked evidence in the record regarding Schumacher’s
failure to authorize claim and reinstated count three. It also reinstated count two
after re-evaluating the evidence and the law, reasoning that SC Data’s failure to
provide a clear disclosure regarding the type of consumer report it was procuring
amounted to a de facto injury-in-fact resulting in harm that was not only akin to a
common law claim of invasion of privacy but also claims based on misrepresentation
and contract. SC Data appeals, contending Schumacher lacks standing to pursue any
of her FCRA claims.

II. ANALYSIS

It is well-established that a party invoking federal jurisdiction must establish
three elements to meet the “irreducible constitutional minimum” of standing: (1)
facts demonstrating “an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, 578 U.S. at 338 (citations omitted). The Supreme Court has
construed injury in fact as meaning “‘an invasion of a legally protected interest’ that
is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60
(1992)). Concreteness is determined by assessing “whether the asserted harm has a
‘close relationship’ to a harm traditionally recognized as providing a basis for a
lawsuit in American courts—such as physical harm, monetary harm, or various
intangible harms” such as reputational harm. TransUnion LLC v. Ramirez, 594 U.S.
__, 141 S. Ct. 2190, 2200 (2021).

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 The FCRA has two goals: “to promote ‘fair and accurate credit reporting’ and
to protect consumer privacy.” Id. (quoting 15 U.S.C. § 1681(a)). While the FCRA
grants a person a statutory right to sue to vindicate violations of the statute, “Article
III standing requires a concrete injury even in the context of a statutory violation.”
Spokeo, 578 U.S. at 341. In another words, “an injury in law is not an injury in fact.”
TransUnion, 141 S. Ct. at 2205. When courts are examining whether a plaintiff has
suffered a concrete harm, it is important to distinguish between those that suffered a
physical, monetary, or cognizable intangible harm from those seeking to collect
statutorily allowed damages as a way to ensure a defendant’s compliance with the
law. Id. at 2206. The first group has standing to pursue statutory violations while
the latter does not. With these principles in mind, we turn to each of Schumacher’s
FCRA claims.

A. Adverse Action Claim

Schumacher’s first count alleges SC Data took an adverse employment action
based on her consumer report without first showing her the report. SC Data
repeatedly disputes the characterization of the report it obtained, noting it only
procured a “limited consumer report” reflecting Schumacher’s criminal history.
App. Br. at 7. The FCRA defines “consumer report” as “any written, oral, or other
communication of any information by a consumer reporting agency bearing on a
consumer’s credit worthiness . . . character, general reputation, personal
characteristic, or mode of living . . . collected in whole or in part for the purpose of
serving as a factor in establishing the consumer’s eligibility for . . . employment
purposes.” 15 U.S.C. § 1681a(d)(1). SC Data obtained a type of consumer report
within the meaning of the statute.

As to employers seeking to gather consumer information, the FCRA provides,
in relevant part:

In using a consumer report for employment purposes, before taking any
adverse action based in whole or in part on the report, the person

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 intending to take such adverse action shall provide to the consumer to
whom the report relates - -

(i) a copy of the report; and

(ii) a description in writing of the rights of the consumer under
this subchapter, as presented by the Bureau under section
1681g(c)(3) of this title.

15 U.S.C. § 1681b(b)(3)(A). The undisputed facts establish that Schumacher was
offered a job, given a start date, and that the job offer was rescinded before she was
given a chance to see or respond to the consumer report. SC Data relied on
information in the report when it took adverse employment action. Under the FCRA,
Schumacher had an unambiguous right to receive a copy of her consumer report
before the adverse action was taken. Nonetheless, there are competing views on
whether an employer’s failure to comply with the FCRA by providing a copy of the
consumer report prior to taking adverse employment action is a bare procedural
violation or conduct that causes an intangible harm sufficient to meet minimum
Article III requirements for standing.

The debate over what qualifies as an “injury in fact” in the realm of consumer
protection laws stems from competing interpretations of the Supreme Court’s
decision in Spokeo, 578 U.S. 330. While describing Spokeo’s instruction as
“Delphic,” one judge noted the immense amount of ink that has been spilled trying
to decipher the difference between intangible harm sufficient for Article III standing
and “a bare procedural violation.” Thornley v. Clearview AI, Inc., 984 F.3d 1241,
1250 (7th Cir. 2021) (Hamilton, J., concurring). Given the rather amorphous
guidance, courts have reached different results.

On the one side, the Third Circuit has concluded that “taking an adverse
employment action without providing the required consumer report is ‘the very harm
that Congress sought to prevent, arising from prototypical conduct proscribed’ by
the FCRA.” Long v. Southeastern Penn. Transp. Auth., 903 F.3d 312, 324 (3d Cir.
2018) (quoting Susinno v. Work Out World Inc., 862 F.3d 346, 348 (3d Cir. 2017)).
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Similarly, the Seventh Circuit determined that a plaintiff had standing to pursue her
adverse action claim, finding that an informational injury can be concrete when the
plaintiff is entitled to receive and review substantive information because
“[p]roviding context may be more valuable than contesting accuracy” since
“information that seems damning at first glance might not be so bad in context.”
Robertson v. Allied Sols., LLC, 902 F.3d 690, 697 (7th Cir. 2018).

On the other side, the Ninth Circuit has found Article III standing wanting
when the plaintiff failed to show “actual harm or a material risk of harm.” Dutta v.
State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1176 (9th Cir. 2018). The Dutta
court reasoned that none of the inaccuracies or explanations the plaintiff would have
provided to the prospective employer would have changed the employer’s decision
to deny admission into its hiring program. Id.

The harm present in the cases where courts found standing for a violation of
15 U.S.C. § 1681b(b)(3)(A)(i) was premised on a prospective employee’s right to
discuss with an employer the information in the consumer report prior to the
employer taking an adverse action. However, the right to pre-action explanation to
the employer is not unambiguously stated in the text of the statute. To find such a
right, we would have to infer that Congress, by requiring an employer to provide a
prospective employee a copy of the consumer report before the employer takes an
adverse action, also intended to afford an opportunity for job applicants or
employees to explain to the employer any information, both accurate and inaccurate,
contained in the report. At least one court examining this issue has concluded that
while the FCRA provides a right to dispute inaccurate information in a consumer
report, there is no right mandating an employer provide a prospective or current
employee an opportunity to dispute or explain the contents of the report directly with
the employer. Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1092 (9th Cir. 2020). In
Walker, the court concluded there was no provision of the FCRA that establishes a
right to dispute a report with an employer directly, as opposed to with the consumer
reporting agency, and noted the lack of authority to suggest the right to dispute is
broader than what is set forth in the plain language of the statute. Id. at 1093.
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 The legislative history comports with the Walker court’s interpretation. When
Congress amended the FCRA in 1996, the “driving force behind the changes was
the significant amount of inaccurate information that was being reported by
consumer reporting agencies and the difficulties that consumers faced getting such
errors corrected.” S. Rep. No. 108-166, at 5-6 (2003). In addressing this issue, the
Committee expressed concerns regarding employers’ use of consumer reports
because they “may create an improper invasion of privacy.” S. Rep. No. 104-185,
at 35 (1995). The Committee was also concerned about the “unreasonable harm”
current and prospective employees may endure “if there are errors in their reports.”
Id. The Committee bill, therefore, required employers, before taking an adverse
action based on a consumer report, to give the current or prospective employee “a
copy of the report, a description of the individual’s rights under the FCRA, and a
reasonable opportunity to respond to any information that is disputed by the
consumer.” Id.; see also H.R. Rep. No. 103-486 (1994) (documenting under
“Explanation of Legislation Title I – Amendments to Fair Credit Reporting Act –
Sec. 103. Furnishing Consumer Reports; Use for Employment Purposes” that
employers “must also provide the consumer with a reasonable period to respond to
any information in the report that the consumer disputes and with written notice of
the opportunity and time period to respond”). The legislative history does not evince
a right afforded to an employee or prospective employee to provide context as to
negative information in a consumer report nor otherwise discuss directly with the
employer accurate information in the report.

Neither the text of the FCRA nor the legislative history provide support for
Schumacher’s claim that she has a right under the FCRA to not only receive a copy
of her consumer report, but also discuss directly with the employer accurate but
negative information within the report prior to the employer taking adverse action.
While it is true that Schumacher did not receive a copy of her report prior to
rescindment of the job offer, she has not claimed the report was inaccurate. SC Data
wrote on the report the reason for the job offer withdrawal—the undisclosed felony
convictions. Schumacher may have demonstrated an injury in law, but not an injury
in fact. One of the primary goals of the FCRA is to protect consumers and employees
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from the dissemination of inaccurate information. We decline Schumacher’s request
to create an additional right under the FCRA—that is, the right to explain to a
prospective employer negative but accurate information in a consumer report prior
to the employer taking an adverse employment action. Schumacher’s adverse action
claim is not redressable under the plain language of the statute.

B. Improper Disclosure Claim

Schumacher next asserts that SC Data obtained her consumer report without
first providing her with a disclosure form that complied with the FCRA.
Specifically, Schumacher contends the disclosure was not clear and conspicuous
because most of the text in the Authorization was no larger than six-point font,
constituting “eye-straining text” within “a host of non-disclosure language.” App.
Br. at 23. She also contends the Authorization was non-conforming because it did
not use the words “consumer report” and did not tell her that a consumer report may
be procured for employment purposes, although it did expressly inform her that a
criminal background search would be conducted only after an offer of employment
was made. Another alleged non-conforming defect was that the Authorization
violated the “solely” mandate by including extraneous information, such as a
statement regarding the consequences for failing to provide accurate or complete
information, information applicable only to those applying for motor carrier
positions, release of liability provisions, and information about what to do if the
report contains disputed information.

When a consumer report is procured for employment purposes, the FCRA
requires an employer to provide to the applicant “a clear and conspicuous” written
disclosure “in a document that consists solely of the disclosure.” 15
U.S.C. § 1681b(b)(2)(A)(i). Even so, “Congress did not enact § 1681b(b)(2)(A)(i)
to protect job applicants from disclosures that do not satisfy the requirements of that
section; it did so to decrease the risk that a job applicant would unknowingly consent
to allowing a prospective employer to procure a consumer report.” Groshek v. Time
Warner Cable, Inc., 865 F.3d 884, 888 (7th Cir. 2017).
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 This Court has held that, without something more, a technical violation under
§ 1681b(b)(2)(A) is insufficient to confer standing. See Auer v. Trans Union, LLC,
902 F.3d 873, 877 (8th Cir. 2018) (even if there are technical violations of the statute,
a plaintiff who consents to the procurement of her consumer information for
employment purposes must specifically plead facts of an intangible injury sufficient
to show she suffered a concrete injury); see also Groshek, 865 F.3d at 887 (finding
no concrete privacy injury in light of employee’s admission that he signed the
disclosure and authorization form and made no allegation that he was confused by
it). The “something more” may encompass facts indicating the additional
information caused confusion as to the consent being given; that the employee would
not have provided consent but for the extraneous information; or that the disclosure
was so lacking in clarity that the employee was unaware that a consumer report
would be procured. Groshek, 865 F.3d at 887. Absent specific facts describing the
harm, a plaintiff has alleged nothing more than a statutory violation “completely
removed from any concrete harm or appreciable risk of harm.” Id.

Schumacher’s improper disclosure claim consists of a panoply of alleged
defects in the Authorization along with an allegation that SC Data acted in willful
disregard of the Federal Trade Commission’s guidance and the unambiguous
language of the statute. Notably absent is any claim of harm, neither tangible nor
intangible. Schumacher has not established that she suffered a concrete injury due
to the improper disclosure. She lacks standing to pursue her improper disclosure
claim. See TransUnion, 141 S. Ct. at 2206 (explaining persons not seeking to
remedy any harm to themselves but instead are simply seeking to ensure a
defendant’s compliance with the law lack Article III standing).

C. Failure to Authorize Claim

Schumacher’s last claim is that she did not authorize SC Data to obtain a
consumer report. She did, however, explicitly authorize Sterling Infosystems to
conduct a criminal background search and “make an independent investigation of
[her] criminal records maintained by public and private organizations.”
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 The document prepared by Sterling Infosystems was titled “Background
Screening Report.” While the report contained information about Schumacher’s
criminal history, it did not contain any information about Schumacher’s credit
history or worthiness, personal characteristics, or other information that is typically
included in a comprehensive consumer report. Nonetheless, the Authorization (and
report obtained by SC Data), though not employing the term “consumer report,” fits
within the FCRA’s broad definition of consumer report set forth in 15 U.S.C.
§ 1681a(d)(1).

The FCRA precludes an employer from obtaining a consumer report unless
the employee “has authorized in writing . . . the procurement of the report.” 15
U.S.C. § 1681b(b)(2)(A)(ii). It is indisputable that Schumacher authorized SC Data
to obtain a type of consumer report documenting her criminal history. Sterling
Infosystems utilized several databases to conduct an expansive criminal background
check. The only arguable search that was “non-criminal” pertained to the database
search listed as “National Sex Offender.”

As noted by SC Data, there is a public National Sex Offender Website that
enables anyone to search for the identify and location of convicted sex offenders.
https://www.fbi.gov/scams-and-safety/sex-offender-registry (last visited Feb. 24,
2022). The public website, coordinated by the United States Department of Justice,
allows an individual to search for the latest information on known sex offenders from
all 50 states, the District of Columbia, Puerto Rico, Guam, and numerous Indian
tribes. In contrast, the National Sex Offender Registry is a database available only
to law enforcement that is maintained by the Federal Bureau of Investigation’s
Criminal Justice Information Services Division. Schumacher does not suggest nor
is there evidence to indicate the database used by Sterling Infosystems went beyond
the information available in the public database. By definition, a person would only
be included in the database if he or she had a qualifying criminal conviction for a
sex offense. The sex offender database has a relationship to a person’s criminal
background. Because Schumacher consented to a criminal background check, which
a search of a sex offender registry is not so unrelated to criminal history so as to
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plainly fall outside the scope of the Authorization, Schumacher has failed to plead
an intangible injury to her privacy that is sufficient to confer Article III standing.
See Auer, 902 F.3d at 877 (finding no intangible injury sufficient to confer standing
when a plaintiff’s consents to the invasion of a protected interest).

Assuming arguendo that conducting a search in the national sex offender
database went beyond the scope of Schumacher’s authorization because it is “non-
criminal” in nature, the only possible harm noted by the district court was invasion
of privacy. Schumacher, however, has not pleaded any facts demonstrating a
concrete harm—a prerequisite for Article III standing. See Sofka v. Thal, 662
S.W.2d 502, 509-10 (Mo. 1983) (en banc) (noting “invasion of privacy” is a general
term used to describe four different torts, each with distinct elements and a separate
interest that can be invaded); see also Auer, 902 F.3d at 878 (explaining speculative
harm, a “naked assertion” of harm devoid of further factual development, and even
general factual allegations of injury fall short of plausibly establishing injury
sufficient for Article III standing). Schumacher lacks standing to pursue her failure
to authorize claim.

III. CONCLUSION

For the foregoing reasons, we vacate the district court’s orders. When a case
is in federal court because it has been removed there by the defendant and it turns
out the district court lacks subject matter jurisdiction to decide the claims, “the case
shall be remanded.” 28 U.S.C. § 1447(c); see Wallace v. ConAgra Foods, Inc., 747
F.3d 1025, 1033 (8th Cir. 2014) (noting that if a case has been removed to federal
court and the plaintiff lacks Article III standing to confer federal jurisdiction, “the
federal court must remand the case to the state court from whence it came”). We
remand to the district court with instructions to return this case to the state court.

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KELLY, Circuit Judge, concurring.

I agree that Schumacher has failed to allege an injury in fact and therefore
lacks standing to pursue her claims under the FCRA. I write separately to clarify
my reasoning and my understanding of the scope of the court’s ruling.

I agree that SC Data obtained a credit report, as defined by the FCRA, and
took an adverse action as to Schumacher before providing her with a copy of that
report, in violation of the statute. In light of the Supreme Court’s decision in Spokeo,
Inc. v. Robins, the question then is whether Schumacher has alleged a “concrete
injury” or only “a bare procedural violation, divorced from any concrete harm.” 578
U.S. 330, 341 (2016). Here, Schumacher has not alleged any harm that arose from
SC Data’s failure to provide a copy of the report before informing her of the adverse
employment action. She was ultimately provided with a copy of the report, and she
has not suggested there was anything in that report she would have disputed if not
for the fact that SC Data withdrew her offer of employment before providing the
copy. Therefore, Schumacher has not pleaded an essential element of constitutional
standing—a concrete injury.

Second, I agree that the legislative history highlighted in the court’s opinion
suggests that Congress’s focus was on “disputed” information in a consumer report.
This is relevant because in Spokeo the Supreme Court noted that Congress plays a
role in “identifying and elevating intangible harms” when it legislates and that
Congress’s judgment is “instructive and important,” though not definitive, in
identifying intangible harms for purposes of constitutional standing. Id. To the
extent the court relies on the legislative history of the FCRA to conclude that
Congress identified and elevated only intangible harms that involve disputed
information, I agree that a “dispute” is necessary for a plaintiff to have standing. 2

2
I also note that the term “disputed” used in the statute’s legislative history is
not an exact synonym for “inaccurate.” One can imagine factual scenarios in which
a consumer genuinely “disputes” information contained in a report without it being
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 I do not understand our opinion as going further, as that would inappropriately
collapse the non-jurisdictional issues of statutory standing or the scope of a cause of
action into the jurisdictional question of constitutional standing. As I read the
opinion, it does not create a heightened burden for standing in the context of the
FCRA or rule out standing in any case where there is an alleged dispute over the
information contained in the report and the report is not properly disclosed. In
Walker v. Fred Meyer, Inc., the Ninth Circuit reviewed a dismissal for failure to state
a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), not a motion
challenging the court’s jurisdiction pursuant to Rule 12(b)(1), see 953 F.3d 1080,
1086 n.2 (9th Cir. 2020), but the citation is relevant to the extent it informs an
analysis of the type of harm Congress identified for standing purposes. See
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021) (“For standing purposes,
therefore, an important difference exists between (i) a plaintiff’s statutory cause of
action to sue a defendant over the defendant’s violation of federal law, and (ii) a
plaintiff’s suffering concrete harm because of the defendant’s violation of federal
law.”); Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) (“[I]t may be said that
jurisdiction is a question of whether a federal court has the power, under the
Constitution or laws of the United States, to hear a case; . . . cause of action is a
question of whether a particular plaintiff is a member of the class of litigants that
may, as a matter of law, appropriately invoke the power of the court.” (citations
omitted) (emphasis in original)). The scope of a plaintiff’s right under the FCRA is
a merits question not before this court: the parties in this case entered a settlement
agreement as to the merits of Schumacher’s claims. The only remaining question is
whether the district court has jurisdiction to approve that settlement. I agree that it
does not.

One final note as to Schumacher’s failure-to-authorize claim. In my view, it
is not necessary to speculate whether the “national sex offender” search included in
Schumacher’s credit report was coextensive with publicly available information on

categorically “inaccurate.” That is not the situation alleged here, however, and so
further exploration of the distinction is not necessary.
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the National Sex Offender Website. The fact that Schumacher has not alleged SC
Data obtained any information beyond the scope of the authorized search is
dispositive of the third claim.
______________________________

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