11th Cir. Says FCRA Does Not Require Declination of Credit to Support Actual Damage/Emotional Distress Claim

In Collins v. Experian Information Solutions, Inc., — F.3d —-, 2015 WL 55345 (11th Cir. 2015), the Court of Appeals for the 11th Circuit held that a FCRA Plaintiff need not show an actual declination of credit in order to support an emotional distress claim under FCRA.

Curtis J. Collins appeals the district court’s grant of summary judgment in favor of Experian Information Solutions, Inc. (Experian), in his lawsuit alleging Experian negligently and willfully violated its duty under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681i(a), to conduct a reasonable reinvestigation of disputed information contained in his credit file .FN1 This appeal presents us with a question of first impression—whether an allegation of a violation of § 1681i(a), requiring a consumer reporting agency to conduct a “reasonable reinvestigation” of disputed information contained in a consumer’s credit file, requires the consumer reporting agency to have disclosed the consumer’s credit report to a third party in order for a consumer to recover actual damages. Looking to the plain language of the FCRA, we are convinced that a consumer’s credit report need not be published to a third party in order to entitle the consumer to actual damages under § 1681i(a), and we reverse the district court’s finding to the contrary. . . .Looking at the entire statute, Congress chose to give different statutory definitions to the terms “consumer report” and “file,” and used the different terms in different subsections. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) (“[W]e must presume that Congress said what it meant and meant what it said.”); Iraola & CIA, SA v. Kimberly–Clark Corp., 232 F.3d 854, 859 (11th Cir.2000) (“[W]hen Congress uses different language in similar sections, it intends different meanings.”). A “consumer report” requires communication to a third party, while a “file” does not. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300 (1983) ( “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally or purposely in the disparate inclusion or exclusion.” (brackets and quotations omitted)). Thus, by its plain terms, § 1681i(a) does not require communication to a third party; it provides a consumer reporting agency violates that provision if a consumer notifies the agency there is inaccurate information contained in his file and the agency does not conduct a reasonable reinvestigation into the matter. A file is simply the information retained by a consumer reporting agency. Thus, we hold that the plain language of the FCRA contains no requirement that the disputed information be published to a third party in order for a consumer to recover actual damages under § 1681i(a).  The district court viewed Collins’ actual damages evidence under the belief that Collins’ credit report had to have been published to a third party, so it did not have an opportunity to analyze whether Collins’ evidence of emotional distress was sufficient to present a jury question on actual damages. See Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1124 (11th Cir.2006) (stating “the existence of compensable emotional distress is relevant to the amount of damages a plaintiff will ultimately recover” in an FCRA case). We therefore remand to the district court to conduct this inquiry in the first instance.