The opinion filed on January 20, 2017 is hereby amended, and an amended opinion is filed concurrently with this order.
With that amendment, the panel has unanimously voted to deny the petition for panel rehearing. Judges Wardlaw and Owens have voted to deny the petition for rehearing en banc, and Judge Schroeder has so recommended.
The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
Accordingly, the petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc will be entertained. The mandate shall issue forthwith.
IT IS SO ORDERED.
The 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. This case presents a question of first impression in the federal courts of appeals: whether a prospective employer may satisfy the Fair Credit Reporting Act’s (“FCRA”) disclosure requirements by providing a job applicant with a disclosure that “a consumer report may be obtained for employment purposes” which simultaneously serves as a liability waiver for the prospective employer and others. 1 See 15 U.S.C. § 1681b(b)(2)(A). We hold that a prospective employer violates Section 1681b(b)(2)(A) when it procures a job applicant’s consumer report after including a liability waiver in the same document as the statutorily mandated disclosure. We also hold that, in light of the clear statutory language that the disclosure document must consist “solely” of the disclosure, a prospective employer’s violation of the FCRA is “willful” when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.
I.
A. 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. Fair Credit Reporting Act. of 1970, Pub. L. 91-508, § 602, 84 Stat. 1114, 1128. Specifically, Congress recognized the need to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.”
Safeco Ins. Co. v. Burr,
any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under [the statute].
15 U.S.C. § 1681a(d).
Congress amended the FCRA in 1996. Consumer Credit Reporting Reform Act of 1996, Pub. L. 104-208, § 2403, 110 Stat. 3009-426, 3009-431. It recognized “the significant amount of inaccurate information that was being reported by consumer re-, porting agencies and the difficulties that
Congress prohibited procurement of consumer reports unless certain specified procedures were followed:
(2) Disclosure to consumer
(A) In general
Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless—
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
15 U.S.C. § 1681b(b)(2)(A). Congress amended the statute in 1998 to add language providing that the authorization may be made on the same document as the disclosure. Consumer Reporting Employment Clarification Act of 1998, Pub. L. 105-347, § 2,112 Stat. 3208, 3208.
The FCRA provides a private right of action against those who violate its statutory requirements in procuring and using consumer reports. The affected consumer is entitled to actual damages for a negligent violation. 15 U.S.C. § 1681o. For a willful violation, however, a consumer may recover statutory damages ranging from $100 to $1,000, punitive damages, and attorney’s fees and costs. 15 U.S.C. § 1681n.
B. Syed’s Lawsuit Against M-I.
Syed applied for a job with M-I in 2011. M-I provided Syed with a document labeled “Pre-employment Disclosure Release.”
See
Appendix A. The Disclosure Release informed Syed that his credit history and other information could be collected and used as a basis for the employment
The liability waiver at the heart of the present dispute reads as follows:
I understand the information obtained will be used as one basis for employment or denial of employment. I hereby discharge, release and indemnify prospective employer, PreCheck, Inc., their agents, servants and employees, and all parties that rely on this release and/or the information obtained with this re lease from any and all liability and claims arising by reason of the use of this release and dissemination of information that is false and untrue if obtained by a third party without verification.
Appendix A.
Syed alleges that the Disclosure Release failed to satisfy the disclosure requirements mandated by 15 U.S.C. § 1681b(b)(2)(A). Syed does not contend that M-I’s form contained too little information. Instead, he argues that it contained too much. Specifically, he alleges that M-I’s inclusion of the liability waiver violated the statutory requirement that the disclosure document consist “solely” of the disclosure. See § 1681b(b)(2)(A)(i). Syed alleges that he realized M-I had violated the statute when, upon reviewing his personnel file, he noticed that M-I had procured his consumer report, in spite of the allegedly deficient disclosure with which it had provided him. He alleges that he filed the complaint within two years of reviewing his file.
On May 19, 2014, Syed filed a putative class action in district court on behalf of himself and any person whose consumer report was obtained by M-I after receiving ¿ disclosure in violation of Section 1681b(b)(2)(A)(i) within the two-year limitations period. He sought statutory damages pursuant to Section 1681n(a)(l)(A), punitive damages pursuant to Section 1681n(a)(2), and attorney’s fees and costs pursuant to Section 1681n(a)(3).
3
Syed did not seek actual damages, which would have required proof of actual harm.
See Crabill v. Trans Union, L.L.C.,
The original complaint alleged that MI’s statutory violation had been “willful,” the predicate for Syed’s claimed statutory and punitive damages.
See
15 U.S.C. § 1681n;
see also Safeco,
Syed filed his First Amended Complaint (“FAC”) on September 2, 2014. The FAC sets forth the same factual and legal allegations as did the original complaint. However, it also includes citations to Federal Trade Commission (“FTC”) staff opinion letters and district court opinions that Syed asserts support his position that M-I “knew or should have known about its legal obligations under the FCRA,” thus rendering its statutory violation willful.
II.
We have jurisdiction under 28 U.S.C. § Í291 to review the district court’s final judgment dismissing with prejudice Syed’s claims against M-I.
We review de novo the grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Fayer v. Vaughn,
III.
Syed has established Article III standing.
4
A plaintiff who alleges a “bare procedural violation” of the FCRA, “divorced from any concrete harm,” fails to satisfy Article Ill’s injury-in-fact requirement.
Spokeo, Inc. v. Robins,
— U.S. -,
Syed alleged in his complaint that he “discovered Defendant M-I’s violation(s) within the last two years when he obtained and reviewed his personnel file from Defendant M-I and discovered that Defendant M-I had procured and/or caused to be procured a ‘consumer report’ regarding him for employment purposes based on the illegal disclosure and authorization form.” This allegation is sufficient to infer that Syed was deprived of the right to information and the right to privacy guaranteed by Section 168lb(b)(2)(A)(I) — (ii) because it indicates that Syed was not aware that he was signing a waiver authorizing the credit check when he signed it. Drawing all reasonable inferences in favor of the nonmov-ing party, we can fairly infer that Syed was confused by the inclusion of the liability waiver with the disclosure and would not have signed it had it contained a sufficiently clear disclosure, as required in the
statute. Therefore, Syed did allege a concrete injury and has Article III standing to bring this lawsuit.
See Thomas v. FTS USA, LLC,
IV.
A. M-I violated the FCRA by including a liability waiver on the same document as its disclosure.
Neither the Supreme Court nor any circuit court of appeals has addressed whether a prospective employer may satisfy 15 U.S.C. § 1681b(b)(2)(A) by providing a disclosure on a document that also includes a liability waiver. The district court avoided this interpretive question, holding only that M-I’s view that it had not violated
1. Section 1681b(b)(2)(A) unambiguously requires a document that “consists solely of the disclosure.”
We must begin with the text of the statute. Where congressional intent “has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.”
Griffin v. Oceanic Contractors, Inc.,
The ordinary meaning of “solely” is “[a]lone; singly” or “[e]ntirely; exclusively.” American Heritage Dictionary of the English Language 1666 (5th ed. 2011). M-I argues that the statute’s requirement that the disclosure appear on a “document that consists solely of the disclosure” is ambiguous because subsection (ii) of the provision provides that the consumer may authorize the procurement of a consumer report on the document containing the disclosure. See 15 U.S.C. § 1681b(b)(2)(A). If the statute allows for an authorization on the same document as the disclosure, M-I reasons, then the statute must not really require the document to “consist[] solely of the disclosure.” See § 1681b(b)(2)(A). M-I thus urges us to find that Section 1681b(b)(2)(A) is internally inconsistent, and to give no effect to Congress’s use of the term “solely.”
However, contrary to M-I’s contention, the statutory allowance for the consumer to “authorize in writing” the procurement of a consumer report on the same document as the disclosure does not undermine the requirement that the document consist “solely of the disclosure.” The two clauses are consistent because the authorization clause is an express exception to the requirement that the document consist “solely of the disclosure.” While the statute does not specifically designate it as such, the authorization clause immediately follows the disclosure clause, and makes express reference to it.
See
§ 1681b(b)(2)(A)(ii). This is not a ease where we must rationalize two plainly inconsistent subsections, or smooth over a “mistake in draftsmanship.”
Russello v. United States,
Allowing an authorization on the same document as the disclosure is consistent with the purpose of the statute. Congress passed Section 1681b(b)(2)(A) in order to protect consumers from “improper invasion[s] of privacy,” S. Rep. No. 104-185 at 35 (1995), and the disclosure and authorization requirements fit hand in glove to achieve that purpose. Indeed, each would be largely ineffective on its own. Had the statute required disclosure without conditioning the procurement of a consumer report on the job applicant’s authorization, it would have failed to give the applicant control over the procurement of the personal information contained in the consumer report. On the other hand, had the statute conditioned the procurement of a report on the job applicant’s authorization without mandating clear disclosure by the prospective employer, Congress’s purpose
Congress reasonably could have concluded that permitting the consumer to provide an authorization on the same page as the disclosure would enhance the effectiveness of each clause. A job applicant may read a disclosure more closely if he understands that the potential employer may obtain his consumer report only if he signs an authorization for it to do so. The decision to authorize or deny the prospective employer’s use of his report to accept or reject his employment application may be better informed if the authorization immediately follows the disclosure.
We thus reject M-I’s argument that Section 1681b(b)(2)(A) is internally inconsistent. “It is our duty to give effect, if possible, to every clause and word of a statute.”
United States v. Menasche,
2. The statute does not implicitly authorize the inclusion of a liability waiver in a disclosure document.
Congress’s express exception to the “solely” requirement, allowing the disclosure document to also contain the authorization to procure a consumer report, does not mean that the statute contains other implicit exceptions as well.
See United States v. Johnson,
Moreover, “[a]n implied exception to an express statute is justifiable only when it comports with the basic purpose of the statute.”
Walker v. Fairbanks Inv. Co.,
3. The statute’s explicit language cannot be interpreted as permitting the inclusion of a liability waiver.
M-I also argues that the statute contains an
explicit
exception allowing for the inclusion of a liability waiver, positing that a liability waiver is one type of authorization. But we need not speculate about how broadly Congress intended us to read the term “authorization,” because Congress told us exactly what it meant when it described the authorization as encompassing only “the procurement of [a consumer] report.” 15 U.S.C. § 1681b(b)(2)(A)(ii). Further, even assuming the statute were not as clear as it is, M-I’s interpretation is inconsistent with the plain meaning of the term “authorize.” To authorize is to “grant authority or power to.”
American Heritage Dictionary
120. To waive is to “give up ... voluntarily” or “relinquish.”
Id.
at 1947. Authorization bestows, whereas waiver abdicates. A consumer may authorize the procurement of a consumer report or waive an employer’s liability, but he may not “authorize” a “waiver.” We decline to so harry the English language.
See Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund,
4. Whether the disclosure is “clear and conspicuous” is irrelevant to the analysis.
Next, M-I suggests that its inclusion of a liability waiver was permissible because even with the waiver, the disclosure was still “clear and conspicuous.” M-I cites
Smith v. Waverly Partners, LLC,
No. 3:10-CV-00028-RLV-DSC,
B. M-I’s statutory violation was willful as a matter of law.
Syed seeks statutory and punitive damages only, not actual damages. Statutory and punitive damages are available under the FCRA only where a defendant “willfully fails to comply” with the statute. 15 U.S.C. § 1681n(a). Therefore, we must decide whether M-I willfully failed to comply with Section 1681b(b)(2)(A) by procuring Syed’s consumer report after including a liability waiver on the same document as the statutorily mandated disclosure. We may resolve this question as a matter of law, as the parties acknowledge.
The Supreme Court has clarified that, under Section 1681n, willfulness reaches actions taken in “reckless disregard of statutory duty,” in addition to actions “known to violate the Act.”
Safeco,
1. M-I’s interpretation of the statute • was not objectively reasonable.
M-I contends that, even if it violated the statute by procuring Syed’s consumer report, its interpretation of 15 U.S.C. § 1681b(b)(2)(A) was not so erroneous that its non-compliance was willful within the meaning of Section 1681n. Indeed, M-I argues that its reading was not “objectively unreasonable” because the statutory text was “less[ ]than[ ]pellucid.”
See id.
at 70,
M-I’s arguments on this score track its contentions as to why its actions did not violate the statute at all. However, for the reasons outlined above, we conclude that the FCRA unambiguously bars a prospective employer from including a liability waiver on a disclosure document provided a job applicant pursuant to Section 1681b(b)(2)(A).
M-I also contends that its interpretation of the statute is objectively reasonable in light of the dearth of guidance from federal appellate courts and administrative agencies. No court of appeals has spoken to the issue of whether a disclosure document provided pursuant to Section 1681b(b)(2)(A) may permissibly include a liability waiver. Nor has an administrative agency promulgated authoritative guidance on the issue. 6
A lack of “guidance,” however, does not itself render Mi’s interpretation reasonable.
Despite the apparent dearth of guidance on the issue at the time M-I procured Syed’s consumer report, M-I’s inclusion of a liability waiver in the statutorily mandated disclosure document comports with no reasonable interpretation of 15 U.S.C. § 1681b(b)(2)(A). Therefore, we conclude that Mi’s interpretation was “objectively unreasonable.”
2. M-I’s non-compliance was willful.
The parties appear to assume that, under
Safeco,
an objectively unreasonable interpretation of the FCRA is by definition a reckless one, as well. However, this interpretation improperly conflates recklessness and negligence. In tort law, negligent actions are those which do not meet the standard of objective reasonableness.
See
Restatement (Second) of Torts § 283 comment c (Am. Law Inst. 1965); W. Page Keeton et al.,
Prosser and Keaton on The Law of Torts
§ 32, at 173-74 (5th ed. 1984). On the other hand, one acts recklessly when he creates an “unreasonable risk of physical harm to another” that is “substantially greater than that which is necessary to make his conduct negligent.”
See
Restatement (Second) Torts § 500. The Supreme Court has specifically distinguished recklessness from negligence in the FCRA context, noting that a violation is only reckless (and therefore willful) where an employer adopts a reading of the statute that runs a risk of error
“substantially greater than
the risk associated with a reading that was merely careless.”
Safeco,
Moreover, equating negligence with recklessness would fail to give effect to the FCRA’s allowance of actual damages for negligent violations, on the one hand, and statutory and punitive damages for willful ones, on the other.
See
15 U.S.C. §§ 1681n, 1681o;
Safeco,
We must determine whether M-I’s interpretation of 15 U.S.C. § 1681b(b)(2)(A) to permit a liability waiver in a disclosure document crossed the “negligence/recklessness line.”
See Safeco,
Here, however, the term we are called upon to construe is not subject to a range of plausible interpretations. To the contrary, 15 U.S.C. § 1681b(b)(2)(A) unambiguously forecloses the inclusion of a liability waiver in a disclosure document. Thus, we need not consider M-I’s subjective interpretation of the FCRA in determining whether it acted in reckless disregard of the statutory language, and therefore willfully. Indeed, M-I concedes that this question may be resolved purely as a matter of law.
7
Because the statute unambiguously bars M-I’s interpretation, whether or not M-I actually believed that its interpretation was correct is immaterial.
See Reardon v. ClosetMaid Corp.,
No. 2:08-cv-01730,
M-I ran an “unjustifiably high risk of violating the statute.”
See Safeco,
C. The complaint’s factual allegations preclude dismissal on statute of limitations grounds.
In the alternative, M-I urges us to affirm the district court’s dismissal of
M-I argues that Syed “discovered” the violation within the meaning of 15 U.S.C. § 1681p when he signed M-I’s allegedly deficient Disclosure Release form upon applying for a job in 2011. Because Syed challenges only the disclosure document, and not the manner in which M-I used his consumer report, M-I contends that the date of disclosure is the relevant one here.
However, a prospective employer does not violate Section 1681b(b)(2)(A) by providing a disclosure that violates the FCRA’s disclosure requirement.
See Harris v. Home Depot U.S.A., Inc.,
M-I urges a contrary interpretation, relying on cases construing statutes of limitations involving inadequate disclosures on loan documents under the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”), Pub. L. 108-159, 111 Stat. 1952, which amended the FCRA, and the Truth in Lending Act of 1968 (“TILA”), Pub. L. 90-321, 82 Stat. 146 (codified at 15 U.S.C. § 1601
et seq).
M-I is correct that the statutes of limitations under FACTA and TILA generally begin to run when the disclosure is made. However, this is so because the disclosure and transaction usually occur simultaneously in the lending context.
See Ancheta v. Golden Empire Mortg., Inc.,
No. 10-CV-05589-LHK,
Here, Syed does not allege that M-I procured his consumer report at the same
time it made its disclosure, which would have meant that he could have discovered the statutory violation when he received the Disclosure Release. To the contrary, he alleges that he was unaware M-I had procured his consumer report until he reviewed his personnel file “within the last two years.” Because we must treat this allegation as true at the motion-to-dismiss stage, Syed adequately pleaded that his claim fell within the FCRA’s two-year statute of limitations.
See Supermail Cargo, Inc. v. United States,
V.
The FCRA’s employment disclosure provision “says what it means and means
REVERSED and REMANDED.
APPENDIX A
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Notes
. The statutory provision at issue, 15 U.S.C. § 1681b(b)(2)(A), governs the procurement of consumer reports "for employment purposes with respect to any consumer.” Thus, the statute's application is not limited to employer-employee relationships. However, for the sake of brevity, we describe the parties governed by the statute as “prospective employers” and "job applicants,” while recognizing that the statute in fact applies more broadly.
. This opportunity is particularly important given that, in practice, the FCRA does not otherwise provide an opportunity for a job applicant or employee to dispute his consumer report before adverse action is taken. See Richard Fischer, A.S. Pratt & Sons, Law of Financial Privacy ¶ 1.04[2][F] (2014).
. Syed also named PreCheck, the company hired by M-I to obtain his consumer report, as a defendant. Syed has since settled his claims against PreCheck. Thus, only his claims against M-I are at issue in this appeal.
. In reviewing a Rule 12(b)(6) dismissal by the district court, we "accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmov-ing party."
Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology,
. M-I’s argument that the legislative history supports its interpretation of the statute is also misguided. M-I's reading is in fact inconsistent with Congress’s intent, because the inclusion of a liability waiver tends to distract from the disclosure's clarity. In any event, "it is well-settled that 'reference to legislative history is inappropriate when the text of the statute is unambiguous.’ ”
United States v. Sioux,
. The FTC has released three informal staff opinion letters relevant to the issue at hand, each supporting Syed’s interpretation of Section 1681b(b)(2)(A).
See
FTC, Opinion Letter,
. In
Safeco,
the Supreme Court did not foreclose the possibility that a party’s subjective interpretation of the FCRA may be relevant in some circumstances.
. We are persuaded by the opinions of a number of other district courts rejecting the argument that a prospective employer’s inclusion of a liability waiver in a disclosure made pursuant to 15 U.S.C. § 168lb(b)(2)(A) was not willful as a matter of law.
Harris v. Home Depot U.S.A., Inc.,