United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING DEFENDANT'S MOTION TO
E. Hudson United States District Judge
MATTER is before the Court on Defendant's Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
(ECF No. 30), filed on June 27, 2016. Plaintiff has filed her
Response in Opposition (ECF No. 39) and Defendant has filed a
Reply (ECF No. 45). For the reasons stated herein, the Motion
will be denied.
Complaint, Ashley Burke ("Plaintiff or
"Burke") alleges that Federal National Mortgage
Association ("Defendant") violated her rights under
the Fair Credit Reporting Act ("FCRA") by
unlawfully obtaining her credit report under the false
pretense of an "account review, " even though no
account existed. (Compl. ¶ 3.) In claiming that
Defendant violated 15 U.S.C. § 1681b(f), she contends
that her privacy was invaded and that she was placed at an
increased risk of identity theft and/or a data breach,
resulting in anxiety and emotional distress. (Compl.
¶¶ 24-25.) Defendant moved to dismiss this
Complaint pursuant to Fed.R.Civ.P. 12(b)(1), claiming that
because Plaintiff has not alleged a concrete injury but only
a bare procedural violation, she therefore lacks standing.
(Def.'s Mot. Dismiss at 1.)
Rule of Civil Procedure 12(b)(1) provides that a complaint
may be dismissed for lack of subject-matter jurisdiction.
Subject-matter jurisdiction requires a justiciable case or
controversy within the meaning of Article III of the United
States Constitution. See Allen v. Wright, 468 U.S.
737, 750-51 (1984) (abrogated on other grounds by Lexmark
Int'l, Inc. v. Static Control Components,
Inc., 134 S.Ct. 1377 (2014)). Standing constitutes one
component of justiciability. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Standing presents a
"threshold question in every federal case, determining
the power of the court to entertain the suit." Worth
v. Seldin, 422 U.S. 490, 498(1975).
Supreme Court has established that the "irreducible
constitutional minimum" of standing includes three
elements: (1) an injury-in-fact, (2) a causal connection
between the injury and the conduct complained of, and (3) a
likelihood that the injury will be redressed by a favorable
decision. Lujan, 504 U.S at 560-61 (citations
omitted). Because Plaintiff seeks to invoke this Court's
jurisdiction, Plaintiff bears the burden of establishing all
three elements. Id. at 561.
establish an injury-in-fact, the plaintiff "must allege
a distinct and palpable injury to himself[.]"
Worth, 422U.S. at 501 (citations omitted). The
injury must "affect the plaintiff in a personal and
individual way." Lujan, 504 U.S. at 560 n.1.
Additionally, claims asserting '"generalized
grievance[s]' shared in substantially equal measure by
all or a large class of citizens ... normally do not
warrant exercise of jurisdiction." Worth, 422
U.S. at 499 (citations omitted).
Spokeo, Inc. v. Robins, the Court reiterated the
basic tenants of the standing doctrine. 136 S.Ct. 1540, 1547
(2016). The Court noted that to satisfy the injury-in-fact
requirement, a plaintiff must show '"an invasion of
a legally protected interest' that is 'concrete and
particularized' and 'actual and imminent, not
conjectural or hypothetical.'" Id. at 1548.
A concrete injury must be real, not abstract. Id.
Yet, even intangible injuries may "nevertheless be
concrete." Id. at 1549. Spokeo offers
two considerations in evaluating concreteness: (1)
"whether an alleged intangible harm has a close
relationship to a harm that has traditionally been regarded
as providing a basis for a lawsuit;" and (2) the
judgment of Congress. Id. A concrete injury is
required even in the context of a statutory violation.
Id. A bare procedural violation, apart from concrete
harm, is not enough to satisfy the injury-in-fact
requirement. Id. Within the specific context of the
FCRA, "not all inaccuracies cause harm or present any
risk of harm." Id. at 1550. And yet, where
"harms may be difficult to prove or measure, " the
violation of a statutory procedural right may be sufficient,
even without the plaintiff alleging any additional harm.
See Id . at 1549.
BRIEF SUMMARY OF ARGUMENTS
claims that Plaintiffs alleged harm is exactly the kind of
bare, procedural harm that Spokeo indicated was not
enough to establish a concrete injury-in-fact. (Def.'s
Mem. Supp. Mot. Dismiss at 1, 5, 8.) In making this argument,
Defendant seems to assert that the relevant section of the
FCRA does not create a substantive right, therefore
Plaintiffs harm is merely procedural, and that Defendant
proffers no real damages. (Def.'s Mem. Supp. Mot. Dismiss
at 8-9.) As to the alleged harm of increased risk for
identity theft or further invasion of privacy, Defendant
notes that these lack particularity, and further, depend upon
future speculation and the actions of third parties.
(Def.'s Mem. Supp. Mot. Dismiss at 5-7.)
claims that Defendant violated § 1681b(f) of the FCRA by
obtaining her credit report, at least twice, without a
permissible purpose. (Pl.'s Mem. Opp'n Mot. Dismiss
at 3-4.) She alleges three injuries: invasion of privacy,
exposure to an increased risk of identity theft, and exposure
to an increased risk of further invasion of privacy.
(Pl.'s Mem. Opp'n Mot. Dismiss at 3.) Plaintiff
maintains that the FCRA statutorily created a substantive
right to privacy, building upon the general right of privacy
being recognized under common law. (Pl.'s Mem. Opp'n
Mot. Dismiss at 8-10.) Despite alleging no harm or damages
beyond the wrongful obtaining of her credit report, she
contends that simply alleging the statutory violation is
enough in this instance, because the right is substantive in
nature, not merely procedural. (Pl.'s Mem. Opp'n Mot.
Dismiss at 8-11.) IV. ANALYSIS This is admittedly a close
question. While Spokeo leaves some questions
unanswered, it clearly requires some analysis of the alleged
harm to determine whether it amounts to more than a bare,
procedural violation, and therefore reaches the threshold of
a concrete injury. 136 S.Ct. at 1545, 1550.
recent case with a similar standing issue, the Court analyzed
Sections 1681b(b)(2) and (3) of the FCRA with the guidance of
Spokeo. Thomas v. FTS USA, LLC, 2016 WL 3653878 at
*6 (E.D. Va. June 30, 2016). The Court found that these
sections of the FCRA established a right to privacy in
one's consumer report, as well as a right to specific
information. Id. at *7. Based on the plain statutory
text, the Court found both of these rights to be substantive
in nature, not merely technical or procedural. Id.
Thomas also reviewed relevant legislative history and
concluded that overall, the FCRA had the goal and intention
"to afford consumers rights to information and
privacy." Id. at *8. Additionally,
Thomas makes the point that in general, "the
common law has long recognized a right to personal
privacy." Id. at * 10 (citing United States
Dept. of Justice v. Reporters Comm for Freedom of Press,
489 U.S. 749, 763 (1989). The Court also noted that
"unauthorized dissemination of one's personal
information, even without a showing of actual damages, is an
invasion of one's privacy that constitutes a concrete
injury sufficient to confer standing." Id. at *
10. Further, it made clear that "Congress may create a
statutory right to privacy in certain information that
strengthens or replaces the common law." Id.
another recent case decided after Spokeo, the Third
Circuit resolved that when a defendant fails to comply with
statutory rules protecting privacy, the plaintiffs privacy
has been unlawfully invaded and the plaintiff has therefore
suffered a concrete injury, regardless of actual damages.
See In re Nickelodeon Consumer Privacy Litigation,
__F.3d.__, 2016 WL 3513782 (3d Cir. June 27, 2016). That
Court noted that while the harm may be intangible, the
"unlawful disclosure of legally protected
information" is an injury, particularly when Congress
has decided the information in question should remain
private. Id. at *7. Nickelodeon was not
dealing with the FCRA, but the principle is comparable. This
Court finds the analysis in Th ...