Cory GROSHEK, Plaintiff-Appellant, v. TIME WARNER CABLE, INC., Defendant-Appellee. Cory Groshek, and all others similarly situated, Plaintiff-Appellant, v. Great Lakes Higher Education Corporation, Defendant-Appellee.
No. 16-3355, No. 16-3711
United States Court of Appeals, Seventh Circuit.
August 1, 2017
Argued February 22, 2017
AFFIRMED.
Joseph W. Ozmer, II, Attorney, KABAT CHAPMAN & OZMER, LLP, Abigail Stecker Romero, Attorney, Atlanta, GA, for Defendant-Appellee Time Warner Cable.
Kevin St. John, Attorney, Roisin H. Bell, Attorney, John N. Giftos, Attorney, BELL GIFTOS ST. JOHN LLC, Madison, WI, for Defendant-Appellee Great Lakes Higher Education Corporation.
Before BAUER and WILLIAMS, Circuit Judges, and DeGUILIO,* District Judge.
BAUER, Circuit Judge.
Over the course of a year and a half, Appellant Cory Groshek submitted 562 job applications to various employers, including Appellees Time Warner Cable, Inc. and Great Lakes Higher Education Corporation (collectively, “Appellees“).1 The job application, which Appellees provided to Groshek, included a disclosure and author-
Shortly thereafter, Groshek filed a class-action suit against Appellees under the Fair Credit Reporting Act,
In his complaint, Groshek alleged that Appellees violated
Appellees moved to dismiss for lack of subject matter jurisdiction, arguing that Groshek lacked Article III standing because he did not suffer a concrete injury; Groshek responded that he suffered concrete informational and privacy injuries. The district court granted Appellees’ motion. This appeal followed.
Article III of the Constitution limits our review to actual “Cases” and “Controversies” brought by litigants who demonstrate standing. The “irreducible constitutional minimum of standing” consists of three elements: injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff bears the burden of establishing each element. Id. at 561, 112 S.Ct. 2130. In order to survive a challenge to standing, a plaintiff must plead sufficient factual allegations, that “plausibly suggest” each of these elements. Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015).
To establish injury in fact, Groshek must show that he “suffered an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). To be “concrete,” an injury “must actually exist;” it must be “real,” not “abstract,” but not necessarily tangible. Id. at 1548-49. In determining whether an alleged intangible harm constitutes a concrete injury in fact, both history and Congress’ judgment are important. Id. at 1549.
In enacting the FCRA, Congress identified the need to “ensure fair and accurate credit reporting,” and “protect consumer privacy.” Safeco Ins. Co. v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). “Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk.” Spokeo, 136 S.Ct. at 1550. The stand-alone disclosure and authorization requirements are procedures closely tied to FCRA‘s overarching goals. Congress was concerned that employers’ authority to obtain consumer reports on job applicants “may create an improper invasion of privacy.” S. Rep. No. 104-185 at 35 (1995). Section 1681b(b)(2)(A)(i), the stand-alone disclosure requirement, is clearly designed to decrease the risk of a job applicant unknowingly providing consent to the dissemination of his or her private information. Section 1681b(b)(2)(A)(ii), the authorization requirement, further protects consumer privacy by providing the job applicant the ability to prevent a prospective employer from procuring a consumer report, i.e., by withholding consent. S. Rep. No. 104-185 at 35 (1995).
Here, Groshek did not allege that Appellees failed to provide him with a disclosure that informed him that a consumer report may be obtained for employment purposes. His complaint contained no allegation that any of the additional information caused him to not understand the consent he was giving; no allegation that he would not have provided consent but for the extraneous information on the form; no allegation that additional information caused him to be confused; and, no allegation that he was unaware that a consumer report would be procured. Instead, he simply alleged that Appellees’ disclosure form contained extraneous information. We conclude that Groshek has alleged a statutory violation completely removed from any concrete harm or appreciable risk of harm.
First, Groshek argues that he suffered a concrete informational injury as a result of Appellees’ failure to provide a disclosure compliant with
In both Akins and Public Citizen, the Supreme Court held generally that “a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.” Akins, 524 U.S. at 22, 118 S.Ct. 1777 (citing Pub. Citizen, 491 U.S. at 449, 109 S.Ct. 2558). In Public Citizen, the plaintiff specifically requested, and had been refused, information. 491 U.S. at 449,
Similarly, the plaintiffs in Akins, after a failed request for information, filed suit to compel the defendant to provide information that was required to be disclosed under the Federal Election Campaign Act of 1971. 524 U.S. at 19-20, 118 S.Ct. 1777. The Supreme Court held that the plaintiffs’ inability to procure information under FECA qualified as a concrete injury. Id. The Supreme Court noted that the plaintiffs’ harm was not simply the inability to obtain information, but also mentioned their inability to evaluate candidates for public office without such information—an informational injury “directly related to voting, the most basic of political rights....” Id. at 24-25, 118 S.Ct. 1777. The Supreme Court determined that FECA sought to protect the plaintiffs “from the kind of harm they say they have suffered....” Id. at 22, 118 S.Ct. 1777.
Groshek‘s reliance on Akins and Public Citizen is misplaced for two reasons. First, unlike the plaintiffs in Akins and Public Citizen, Groshek is not seeking to compel Appellees to provide him with information. Groshek has not alleged that, after realizing he was provided with a non-compliant disclosure, he requested that Appellees provide him with a compliant disclosure and was denied. Because Groshek has not “fail[ed]” to obtain information, he has not suffered an informational injury as illustrated in Akins and Public Citizen.
The second reason is that, unlike the statutes at issue in Akins and Public Citizen, the statute here does not seek to protect Groshek from the kind of harm he claims he has suffered, i.e., receipt of a non-compliant disclosure. See Akins, 524 U.S. at 21-25, 118 S.Ct. 1777.3 Congress did not enact
Next, Groshek contends that he suffered a privacy injury as a result of the violation of
Lastly, we briefly highlight the Ninth Circuit‘s opinion in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), which was decided after briefing but was a topic of discussion at oral argument and in supplemental briefing. There, the plaintiff alleged in his complaint that he discovered, within the previous two years, that the defendant obtained a consumer report for employment purposes based on an illegal disclosure and authorization form. Id. at 499. The court held that this allegation was sufficient to confer standing because it inferred that the plaintiff was “deprived of the right to information and the right to privacy” under
Syed is inapposite. The Ninth Circuit had factual allegations from which it could infer harm, whereas Groshek alleges none. Unlike the plaintiff in Syed, Groshek presents no factual allegations plausibly suggesting that he was confused by the disclosure form or the form‘s inclusion of a liability release, or that he would not have signed it had the disclosure complied with
We conclude that Groshek has not alleged facts demonstrating a real, concrete appreciable risk of harm. Because he has failed to demonstrate that he suffered a concrete injury, he lacks Article III standing. Accordingly, the judgments of the district courts are AFFIRMED.
BAUER
CIRCUIT JUDGE