FRESHTA Y. NAYAB, individually and on behalf of others similarly situated v. CAPITAL ONE BANK (USA), N.A.
No. 17-55944
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
October 31, 2019
D.C. No. 3:16-cv-03111-CAB-MDD
Appeal from the United States District Court for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted December 6, 2018
Pasadena, California
Filed October 31, 2019
Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit Judges, and Thomas O.
Opinion by Chief District Judge Rice;
Partial Concurrence and Partial Dissent by Judge Rawlinson
SUMMARY**
Fair Credit Reporting Act / Standing
The panel reversed the district court‘s dismissal of a Fair Credit Reporting Act claim for lack of standing and failure to state a claim and remanded the case to the district court.
Plaintiff alleged that Capital One Bank (USA), N.A., obtained her credit report for a purpose not authorized by the FCRA, in violation of
The panel held that plaintiff had Article III standing because a consumer suffers a concrete injury in fact when a third party obtains her credit report for an unauthorized purpose, regardless of whether the credit report is published or otherwise used by that third party.
The panel held that plaintiff stated a claim because a consumer-plaintiff need allege only that her credit report was obtained for a purpose not authorized by the statute to survive a motion to dismiss, and the defendant bears the burden of pleading it obtained the report for an authorized purpose. The plaintiff does not have the burden of pleading the actual purpose behind the defendant‘s procurement of her credit report, and she need allege only facts giving rise to a reasonable inference that the defendant obtained the credit report in violation of
Judge Rawlinson concurred in part and dissented in part. Judge Rawlinson agreed that plaintiff had standing to pursue her action under the FCRA but disagreed that she stated a plausible claim. Judge Rawlinson wrote that, under the Twombly/Iqbal standard and
COUNSEL
Alex Asil Mashiri (argued), Mashiri Law Firm, San Diego, California; Tamim Jami, The Jami Law Firm P.C., San Diego, California; for Plaintiff-Appellant.
Hunter R. Eley (argued), Lloyd Vu, and Chelsea L. Diaz, Doll Amir & Eley LLP, Los Angeles, California, for Defendant-Appellee.
OPINION
RICE, Chief District Judge:
Freshta Nayab appeals the district court‘s order which dismissed her Fair Credit Reporting Act (“FCRA“) claim with prejudice and without leave to amend for lack of standing and for failure to state a claim. We have jurisdiction pursuant to
This case presents two issues of first impression for this Circuit: (1) whether a consumer suffers a concrete Article III injury in fact when a third-party obtains her credit report for a purpose not authorized by the FCRA and (2) whether the consumer-plaintiff must plead the third-party‘s actual unauthorized purpose in obtaining the report to survive a motion to dismiss. We hold that a consumer suffers a concrete injury in fact when a third-party obtains her credit report for a purpose not authorized by the FCRA. We also hold that a consumer-plaintiff need allege only that her credit report was obtained for a purpose not authorized by the statute to survive a motion to dismiss; the defendant has the burden of pleading it obtained the report for an authorized purpose.
THE FAIR CREDIT REPORTING ACT
“Congress enacted the FCRA in 1970 in response to concerns about corporations’ increasingly sophisticated use of consumers’ personal information in making credit and other decisions.” Syed v. M-I, LLC, 853 F.3d 492, 496 (9th Cir.), cert. denied, 138 S. Ct. 447 (2017) (citation omitted); see Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540, 1550 (2016). “Specifically, Congress recognized the need to ‘ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.‘” Syed, 853 F.3d at 496 (quoting Safeco Ins. Co. v. Burr, 551 U.S. 47, 52 (2007)). In the context of the protections afforded under the FCRA, we recently observed that “[t]he modern information age has shined a spotlight on information privacy, and on the widespread use of consumer credit reports to collect information in violation of consumers’ privacy rights.” Id. at 495.
The FCRA defines a credit report as any written, oral, or other communication of information “bearing on a consumer‘s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living
A person shall not use or obtain a consumer report for any purpose unless—
- the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and
- the purpose is certified in accordance with section 1681e of this title by a prospective user of the report through a general or specific certification.
Subject to subsection (c), any consumer reporting agency may furnish a consumer report under the following circumstances and no other:
- In response to the order of a court ... or a subpoena issued in connection with proceedings before a Federal grand jury.
- In accordance with the written instructions of the consumer . . . .
- To a person which it has reason to believe—
- intends to use the information in connection with a credit transaction involving the consumer and involving the extension of credit to, or review or collection of an account of, the consumer; or
- intends to use the information for employment purposes; or
- intends to use the information in connection with the underwriting of insurance involving the consumer; or
- intends to use the information in connection with... a license or other benefit granted by a governmental instrumentality . . . ; or
- intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; or
- otherwise has a legitimate business need for the information—
- in connection with a business transaction that is initiated by the consumer; or
- to review an account to determine whether the consumer continues to meet the terms of the account.
- executive departments and agencies in connection with the issuance of government-sponsored individually-billed travel charge cards.
- In response to a request by the head of a State or local child support enforcement agency . . . .
- To an agency ... for use to set an initial or modified child support award.
- To the Federal Deposit Insurance Corporation or the National Credit Union Administration . . . .
Notably,
DISCUSSION
I. Standing
Does a consumer sustain a “concrete” injury when a third-party obtains her credit report for a purpose not authorized by the Fair Credit Reporting Act?
The judicial Power of the United States “extends only to ‘Cases’ and ‘Controversies[.]‘” Spokeo II, 136 S. Ct. at 1547 (
This case, like Spokeo II, “primarily concerns injury in fact, the ‘[f]irst and foremost’ of standing‘s three elements.” Id. (quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 (1998)) (brackets in original). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.‘” Id. (quoting Lujan, 504 U.S. at 560, n.1). “A ‘concrete’ injury must be ’de facto‘; that is, it must actually exist[,]” meaning “‘real,’ and not ‘abstract.‘” Id. (citations omitted). “‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to recognize.... intangible injuries can nevertheless be concrete.” Id. at 1549.
“In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles.” Id. “Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. (citing Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 775–777 (2000)). “In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” Id. “The ... injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.‘” Lujan, 504 U.S. at 578 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
The Supreme
We have also recognized a distinction between violations of a procedural right, at issue in Spokeo, and a substantive right. See Eichenberger, 876 F.3d at 982–83 (the “provision does not describe a procedure that [a person] must follow. Rather, it protects generally a consumer‘s substantive privacy interest in his or her [private information].“). A violation of a substantive right invariably “offends the interests that the statute protects.” Id. at 983.
For example, in Eichenberger, we held that a consumer had standing to sue under the Video Privacy Protection Act (VPPA) when his or her video-viewing history was disclosed in violation of
Nayab has standing to pursue her FCRA claim based on Capital One‘s alleged violation of
Second, we have previously found the invasion of the interest at issue—the right to privacy in one‘s consumer credit report—confers standing. See Syed, 853 F.3d at 499–500. In Syed, the plaintiff alleged his employer improperly obtained his credit report in violation of the FCRA. Id. at 498. Under the FCRA, a consumer report may be obtained for employment purposes if the prospective employer (1) provides a “document that consists solely of the disclosure” and (2) receives written authorization from the applicant.
Third, historical practice also supports a finding of standing. The harm attending a violation of
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Intrusion upon seclusion “does not depend upon any publicity given to the person whose interest is invaded or to his affairs.” Id. Rather, “[i]t consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.” Id. at cmt. a. For example, “[t]he invasion may be ... by some [] form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents.” Restatement (Second) of Torts § 652B. Importantly, “[t]he intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.” Id.
We have also recognized that “[v]iolations of the right to privacy have long been actionable at common law” and, referencing the tort of intrusion upon seclusion, “privacy torts do not always require additional consequences to be actionable.” Eichenberger, 876 F.3d at 983 (citing Braitberg v. Charter Comm., Inc., 836 F.3d 925, 930 (8th Cir. 2016) and Restatement (Second) of Torts § 652B cmt. b. (1977)). As well, the Supreme Court has long recognized that “both the common law and the literal understandings of privacy encompass the individual‘s control of information concerning his or her person.” U.S. Dep‘t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763–64 (1989).
The harm at issue here—the release of highly personal information in violation of
Finally, the judgment of Congress further supports a finding of standing. In passing the FCRA, Congress specifically recognized the “elaborate mechanism [] developed for investigating and evaluating credit worthiness, credit standing, credit capacity, character, and general reputation of consumers” and the “need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer‘s right to privacy.”
Nayab has standing to vindicate her right to privacy under the FCRA when a third-party obtains her credit report without a purpose authorized by the statute, regardless
whether the credit report is published or otherwise used by that third-party.
II. Failure to State a Claim
Must the consumer-plaintiff plead the third-party‘s actual unauthorized purpose in obtaining the credit report to survive a motion to dismiss?
The district court erred in holding that Nayab, as the plaintiff, has the burden of pleading the actual purpose behind Capital One‘s procurement of her credit report. A plaintiff need allege only facts giving rise to a reasonable inference that the defendant obtained his or her credit report in violation of
As discussed below, because Nayab did not have the burden of pleading Capital One‘s actual unauthorized purpose, and because she has alleged facts sufficient to give rise to a reasonable inference that Capital One obtained her credit report in violation of
1. Nayab is not required to plead Capital One‘s actual unauthorized purpose
The District Court erred by placing the burden of pleading Defendant‘s actual unauthorized purpose on Plaintiff.
For context, it is important to note that the burden of pleading (i.e. who bears the burden of pleading a fact)—not the ultimate burden of production or persuasion—is at issue. However, who bears the ultimate burden of proof and/or persuasion is indicative of who bears the initial burden of pleading, so we will rely on case law discussing the former. See 2 McCormick On Evid. § 337 (7th ed.) (“In most cases, the party who has the burden of pleading a fact will have the burdens of producing evidence and of persuading the jury of its existence as well[,]” so “[t]he pleadings [] provide the common guide for apportioning the burdens of proof.“)
“Among other considerations, allocations of burdens of production and persuasion may depend on which party—plaintiff or defendant, petitioner or respondent—has made the ‘affirmative allegation’ or ‘presumably has peculiar means of knowledge.‘” Alaska Dep‘t of Envtl. Conservation v. E.P.A., 540 U.S. 461, 494, n.17 (2004). Relatedly, courts have shifted the burden of “establish[ing] a negative” to the defendant where holding otherwise “would impose upon the plaintiffs a difficult, if not an impossible, task” of requiring them to produce evidence that a fact is not the case, though evidence to the contrary “could be readily produced by the defendant.” United States v. Denver & Rio Grande R.R. Co., 191 U.S. 84, 91–92 (1903). Indeed, “[i]t is a general rule of evidence ... that ‘where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.‘” Denver, 191 U.S. at 92. The rationale is simple:
when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or, upon his failure to do so, we must presume it does not exist, which of itself establishes a negative.
Id. at 92-93 (citations omitted) (finding “error in requiring plaintiffs to assume the burden of showing that the timber was not cut for purposes of construction or repair . . . .“).
Similarly, “the burden of persuasion as to certain elements of a plaintiff‘s claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions.” Schaffer, 546 U.S. at 57 (citing Fed. Trade Comm‘n v. Morton Salt Co., 334 U.S. 37, 44–45 (1948)). Indeed, “the general rule of statutory construction [is] that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.” Id. Stated another way, “[t]he general rule of law is, that a proviso carves special exceptions only out
As such, the plaintiff need not “negative[]” the exception to the statute. Id. “[I]f the defendant wishe[s] to rely upon [the] proviso, the burden [is] upon it to bring itself within the exception.” Schlemmer, 205 U.S. at 10. This is especially true where the “exemptions [are] laid out apart from the prohibitions[.]” Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 91 (2008) (with the “exemptions laid out apart from the prohibitions[,] it is no surprise that the” exemptions are “spoken of” as “affirmative defenses ... After looking at the statutory text, most lawyers would accept that characterization as a matter of course, thanks to the familiar principle that ‘[w]hen a proviso carves an exception out of the body of a statute or contract those who set up such exception must prove it.‘” (quoting Javierre v. Cent. Altagracia, 217 U.S. 502, 508 (1910) (citing Schlemmer, 205 U.S. at 10))). This “longstanding convention is part of the backdrop against which the Congress writes laws, and we respect it unless we have compelling reasons to think that Congress meant to put the burden of persuasion on the other side.” Id. at 91–92 (citing Schaffer, 546 U.S. at 57–58).
Capital One, as the defendant, has the burden of pleading it had an authorized purpose to acquire Nayab‘s credit report. First, the FCRA generally prohibits obtaining a credit report,
plaintiff would be unfair, as it would require the plaintiff to plead a negative fact that would generally be peculiarly within the knowledge of the defendant.3 See id. (because the “proof of the facts is inaccessible or not persuasive, it is [] fairer to act as if the exceptional situation did not exist and therefore to place the burden of proof and persuasion on the party claiming its existence.“). Holding otherwise would effectively bar meritorious claims from ever coming to light and frustrate Congress’ attempt to protect consumers’ privacy.
2. Nayab‘s Complaint states a plausible claim for relief
“To survive a motion to dismiss, a complaint must contain sufficient
Nayab has pleaded facts sufficient to give rise to a reasonable inference that Capital One obtained her credit report for an unauthorized purpose. Nayab pleaded that she did not have a credit relationship with Capital One of the kind specified in
- Plaintiff did not initiate any credit transaction with Defendant as provided in
15 U.S.C. § 1681b(a)(3)(A) . - Plaintiff was not involved in any credit transaction with Defendant involving the extension of credit to, or review or collection of an account of, the consumer as provided in
15 U.S.C. § 1681b(a)(3)(A) . - Plaintiff is not aware of any collection accounts, including any accounts that were purchased or acquired by Defendant that would permit Defendant to obtain Plaintiff‘s credit report as provided in
15 U.S.C. § 1681b(a)(3)(A) . - Plaintiff does not have any existing credit accounts that were subject to collection efforts by Defendant as provided in
15 U.S.C. § 1681b(a)(3)(A) . - Plaintiff did not engage Defendant for any employment relationship as provided in
15 U.S.C. § 1681b(a)(3)(B) . - Plaintiff did not engage Defendant for any insurance as provided in
15 U.S.C. § 1681b(a)(3)(C) . - Plaintiff did not apply for a license or other benefit granted by a governmental instrumentality as provided in
15 U.S.C. § 1681b(a)(3)(D) . - Plaintiff did not have an existing credit obligation that would permit Defendant to obtain her credit report as provided in
15 U.S.C. § 1681b(a)(3)(E) . - Plaintiff did not conduct any business transaction nor incur any additional financial obligations to Defendant as provided in
15 U.S.C. § 1681b(a)(3)(F) . - Defendant‘s inquiry for Plaintiff‘s consumer report information falls outside the scope of any permissible use or access included in
15 U.S.C. section 1681b .
Id. ¶¶ 24-35. These are factual allegations that, when taken as true, rule out many of the potential authorized purposes for obtaining
By contrast, in Twombly the Court determined that the plaintiff had not adequately pleaded an antitrust claim where he alleged parallel conduct by the defendants but did not include facts tending to exclude the possibility they acted independently. Twombly, 550 U.S. at 554-55. The Court decided a claim for restraint of trade under the Sherman Act,
Similarly, the Court in Iqbal held the plaintiff failed to state a Bivens claim for purposeful and unlawful discrimination for an alleged policy of holding post-September 11th detainees in the ADMAX SHU facility once they were categorized as of “high interest.” Iqbal, 556 U.S. at 682. The Court determined that a showing the defendants’ adopted the policies “for the purpose of discriminating” was a necessary factor in stating the Bivens claim alleged. Id. at 676-77. The Court concluded the plaintiff must, in his complaint, allege facts sufficient to show the defendants purposefully adopted and implemented the policy of classifying detainees as “high interest“, so that defendants could then house detainees in the ADMAX SHU, because of the detainees’ race, religion, or national origin. Id.
The plaintiff‘s only factual allegations to support his contention were that many Arab Muslim men had been arrested and held at the ADMAX SHU with defendants’ approval. Id. at 681. The Court decided that because there were more likely explanations for the “disparate, incidental impact” of defendants’ activity on Arab Muslims than a discriminatory motive, the plaintiff had not shown, and a court could not infer, that the defendants had acted with a discriminatory state of mind. Id. at 683. Further, the Court concluded, because showing the defendants acted “for the purpose of discriminating” was a necessary factor in stating the Bivens claim the plaintiff alleged, and the plaintiff had not done so, the plaintiff failed to state a claim. Id. at 676-77.
Neither Twombly nor Iqbal dealt with a plaintiff who had stated a prima facie case in the complaint but had failed to also negative each possible affirmative defense. Here, Nayab asserts a claim under the FCRA, which generally prohibits any person from using or obtaining a consumer‘s credit report unless for an authorized purpose provided under section 1681b(a).
In Van Patten, the court affirmed a district court‘s grant of summary judgment in favor of defendants on a claim for violation of the Telephone Consumer Protection Act (“TCPA“),
The court compared § 1692k(a)(2)(B) with another provision of the FDCPA, section § 1692b(3). Tourgeman, 900 F.3d at 1110. Section 1692b(3) prohibits a debt collector from contacting a third party “more than once unless requested to do so by the third party. Id. (emphasis added) (citing Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 362 (3d Cir. 2015)). In Evankavitch, the Third Circuit reasoned that use of “unless” in § 1692b(3), was “telltale language . . . indicative of an affirmative defense.” Evankavitch, 793 F.3d at 362. The Third Circuit affirmed a jury verdict for the plaintiff, deciding the plaintiff did not have the burden of disproving an exception in its case-in-chief, but rather the “party seeking shelter in an exception-[the defendant]-has the burden to prove it.” Id. at 360, 363. The Tourgeman court reasoned that if Congress intended to make net worth an affirmative defense or exemption to a rule, like the affirmative defenses in § 1692b(3), it could have used the same telltale language and “limited liability to $500,000 unless the defendant could establish that one percent of its net
Here, the FCRA § 1681b(f), like the TCPA § 227(b)(1) and FDCPA § 1692b(3), uses the “telltale language” of prohibiting defendant from engaging in conduct “unless” an affirmative defense or exception applies. As with the other provisions, the exceptions to the general prohibition in § 1681b(f) are not elements of Nayab‘s prima facie case which she must negative to state a claim, rather they are affirmative defenses for which Capital One bears the burden. Van Patten, 847 F.3d at 1044; see Tourgeman, 900 F.3d at 1109. By alleging facts giving rise to a reasonable inference that Capital One obtained her credit report for a purpose not authorized by statute, Nayab has asserted a plausible claim for relief under the FCRA. See Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 49 (2d Cir. 1997) (“Although Northrop‘s complaint does not allege the purpose for which defendants obtained her [credit] report, we believe it would be premature, in light of the liberal pleading principles of
REVERSED and REMANDED.
RAWLINSON, Circuit Judge, concurring in part and dissenting in part:
Although I agree that Plaintiff Freshta Nayab (Nayab) had standing to pursue her action under the Fair Credit Reporting Act, I decidedly disagree that Nayab stated a plausible claim.
As an initial matter, I take issue with the characterization of the pleading standard as an issue of first impression. See Majority Opinion, p.4. Rather, this is a routine pleading question that has been definitively addressed in Supreme Court precedent.
The majority rests its analysis on the language of
In Twombly, 550 U.S. at 550, the plaintiffs filed an antitrust action against local exchange telephone and wireless carriers. The complaint alleged:
In the absence of any meaningful competition between the [carriers] in one another‘s markets, and in light of the parallel course of conduct that each engaged in to prevent competition from [carriers] within their respective local telephone and/or high speed internet services markets and the other facts and market circumstances alleged above, plaintiffs allege upon information and belief that [the carriers] have entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another.
Id. at 551 (citation and footnote reference omitted).
The district court dismissed the complaint for failure to state a claim, but the Second Circuit reversed. The Supreme
The Supreme Court proceeded to clarify the pleading standards under
The Supreme Court reiterated this analysis in Iqbal. In that case, a pretrial detainee asserted various constitutional violations against the former Attorney General (AG) and the Director of the Federal Bureau of Investigation (FBI). The complaint alleged that the AG and FBI Director “adopted an unconstitutional policy that subjected [the detainee] to harsh conditions of confinement on account of his race, religion or national origin.” Iqbal, 556 U.S. at 666. The defendants moved to dismiss the complaint for failure to state a claim, and the district court denied the motion. See id. at 669. While appeal was pending before the Second Circuit, the Supreme Court decided Twombly. Applying Twombly, the Second Circuit agreed with the district court that the pleading was adequate to state a claim. See id. at 669-70. However, the Supreme Court reversed, holding that the pre-trial detainee did not sufficiently “plead factual matter that, if taken as true, states a claim that [defendants] deprived him of his clearly established constitutional rights.” Id. at 666, 670.
As in Twombly, the Supreme Court again acknowledged that
The Supreme Court left no doubt that a complaint must contain allegations of some substance. The Supreme Court emphasized that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Against this analytical backdrop, the Supreme Court concluded that the allegations of Iqbal‘s complaint did not state a plausible claim. See id. at 680.
The Supreme Court identified the following allegations as insufficient under
- That the defendants “knew of, condoned and willfully and maliciously agreed to subject” Iqbal to harsh conditions of confinement;
- That the defendant‘s actions were taken “as a matter of policy, solely on account of [Iqbal‘s] religion, race and/or national origin“;
- That the actions were not based on any “legitimate penological interest“;
-
That the AG was the “principal architect of [the] invidious policy“; and - That the FBI Director was “instrumental in adopting and executing” the policy.
Id. at 680-81 (citations and internal quotation marks omitted).
The Supreme Court described these allegations as “bare assertions, much like the pleading of conspiracy in Twombly, amount[ing] to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim.” Id. at 681 (citation and internal quotation marks omitted). The Court further observed that “the allegations [were] conclusory and not entitled to be assumed true.” Id. (citation omitted).
Measuring the allegations in this case against the Twombly/Iqbal standard reveals a patent lack of adequate pleading. The majority deems it sufficient that Nayab alleged that the defendant “obtained [her credit report] for a purpose not authorized by the statute.” Majority Opinion, p.4. Indeed, the majority goes so far as to conclude, without citation to any authority, that Nayab had no obligation to plead the unauthorized purpose for which the credit report was obtained. See Majority Opinion, p.16. However, not only is that conclusion inconsistent with Twombly and Iqbal, it diverges from the specific allegations in cases that have been litigated under the Fair Credit Reporting Act. For example, in Syed v. M-I, LLC, 853 F.3d 492, 498 (9th Cir. 2017) the plaintiff “[s]pecifically . . . allege[d]” that the Disclosure Release provided by a prospective employer violated the Fair Credit Reporting Act by including a liability waiver in addition to the disclosure, when the statute required “that the disclosure document consist ‘solely’ of the disclosure.” Id. (citing
The majority delineates allegations from the complaint purporting to “negative each permissible purpose for which Capital One could have obtained her credit report and for which Nayab could possibly have personal knowledge.” Majority Opinion, p.22 (second emphasis in the original). However, as discussed, these speculative allegations fall short of the specific allegations reflected in our precedent. See e.g., Syed, 853 F.3d at 498; Guimond, 45 F.3d at 1331-32. And under the precepts of Twombly/Iqbal, no fair inference of liability follows from these speculative assertions. See Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level . . . [and] the pleading must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action . . .“) (citations, alterations, footnote reference, and internal quotation marks omitted) (emphasis added); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent with a defendant‘s liability, it stops short of the line between possibility and plausibility of entitlement to relief.“) (citation and internal quotation marks omitted). At best, the assertions highlighted by the majority “are merely consistent with [the] defendant‘s liability.” Id. (citation and internal quotation marks omitted). Tellingly, the majority characterizes plaintiff‘s claim in terms of “possibility.” Majority Opinion, p.22. However, Iqbal clearly held that a mere possibility of liability does not plead a plausible claim. See Iqbal, 556 U.S. at 678.
The majority seeks to distinguish Twombly and Iqbal on the basis that they did not deal “with a plaintiff who had stated a prima facie case in the complaint but had failed to also negative each possible affirmative defense.” Majority Opinion, p.25. But this attempt to distinguish Twombly and Iqbal simply begs the question by presupposing that a prima facie case has been stated. This presupposition blithely ignores the requirements set forth in Twombly and Iqbal to state a plausible claim. See Iqbal, 556 U.S. at 678 (noting that no plausible claim is made if the complaint “tenders naked assertions devoid of further factual enhancement“). This language is fatal to Nayab‘s so-called prima facie case because her allegations contain only “naked assertions” parroting the language of the statute in a “formulaic recitation of the elements of a cause of action.” Id.
The majority‘s reliance on Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1044 (9th Cir. 2017) and Tourgeman v. Nelson & Kennard, 900 F.3d 1105, 1110 (9th Cir. 2018), is similarly unavailing because neither case involved pleading standards under
Finally, and without citation to any authority, the majority states that “the defendant [Capital One] has the burden of pleading it had an authorized purpose to acquire Nayab‘s credit report,” because the authorized purposes under the statute must be pled as defenses. Majority Opinion, p.20. However, the Supreme Court has expressly placed the burden of pleading a plausible claim squarely on the plaintiff rather than on the defendant. See Twombly, 550 U.S. at 554-55.
In sum, although Nayab had standing to assert her claim, I respectfully, but emphatically, disagree with the conclusion that she stated a plausible claim. I would affirm the district court‘s ruling on this issue.