Shameca S. Robertson, on behalf of herself and all others similarly situated, Plain tiff-Appellant,
Allied Solutions, LLC, Defendan t-Appellee.
February 20, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:15-cv-1364-WTL-DML - William T. Lawrence, Judge.
WOOD, Chief Judge, and Easterbrook and Barrett, Circuit
rarely extend job offers without first checking the
applicant's background and references. They are free to
conduct such checks, but they must follow certain rules. Many
of those rules come from the Fair Credit Reporting Act (FCRA
or Act), 15 U.S.C. §§ 1681-1681x. Shameca Robertson
alleges that Allied Solutions, LLC ("Allied")
disregarded several of the Act's requirements when she
applied for a position with the company. This action, filed
on behalf of herself and two proposed classes, seeks to hold
Allied accountable for those missteps. The parties
tentatively had agreed to settle Robertson's two class
claims when the district court on its own initiative raised
some concerns about her standing to sue under Article III. It
asked for briefing on that issue and then dismissed the
entire action for want of jurisdiction.
juncture we accept Robertson's allegations, but we still
must examine whether Allied's alleged violations of the
Act caused her any concrete injury. Because the answer is in
part "yes," we reverse the dismissal for lack of
jurisdiction of one of Robertson's claims and remand for
further proceedings. The district court's dismissal of
the other claim was proper, because its authority to
adjudicate must exist before it can resolve the case, even if
that resolution is nothing more than a fairness hearing under
Federal Rule of Civil Procedure 23(e), followed by approval
of a settlement.
applied for a position with Allied. It offered her the job,
but it ran a background check before she reported to work.
Ordinary background checks qualify as consumer reports under
the FCRA. See 15 U.S.C. § 1681a(d)(1). Allied thus was
required to alert Robertson "clear [ly] and
conspicuously]" of its intent to obtain the report and
to secure her consent. Id. § 1681b(b)(2)(A).
Those disclosures needed to be in writing and unadorned by
any additional information. Id. Robertson complains
that they were not. Instead, the forms she received were
neither clear nor conspicuous, and they included extraneous
information. She did not allege, however, that the added
information affected her consent to the check.
"non-conviction information" (the nature of which
is immaterial for present purposes) turned up in the course
of Robertson's background check. This information
prompted Allied to revoke the job offer. A representative
from its human resources department passed that word along to
Robertson. She alleges that the representative told her only
that the offer was being rescinded "because of
information in her 'criminal background check'
report." An employer that relies in any measure on a
background check for an adverse employment decision
(including rescinding a job offer, see id. §
1681a(k)) must provide the applicant with a copy of the
report and a written description of her rights under the FCRA
before acting. Id. § 1681b(b)(3)(A). Allied
provided neither to Robertson.
responded with this lawsuit. Her complaint includes two
claims, each on behalf of a distinct subclass. First, she
sued Allied for failing to furnish clear and conspicuous
disclosure forms. We call this the notice claim. Second, she
sued Allied for taking an adverse employment action based on
her background check without first supplying a copy of the
report or a written summary of her FCRA rights. This is her
mediation in April 2016, the parties reached a tentative
settlement agreement. A month later, the Supreme Court
decided Spokeo, Inc. v. Robins, 136 S.Ct. 1540
(2016), in which it emphasized that federal jurisdiction
exists (as relevant here) only if the plaintiff has alleged
an injury that is both concrete and particular to herself.
Neither Allied nor the court responded immediately to
Spokeo. Several months lat- er, Robertson filed an
unopposed motion under Federal Rule of Civil Procedure 23(e)
for preliminary approval of the settlement agreement and for
certification of two settlement classes. Instead of acting on
the motion, however, the district court raised
Spokeo on its own and asked the parties first to
brief the question whether Robertson had Article III
standing. The court then learned that related issues were
pending before this court in Groshek v. Time Warner
Cable, Inc., 865 F.3d 884 (7th Cir. 2017), and
so it delayed ruling. After we ruled in Groshek that
an injury functionally indistinguishable from the one
underpinning Robertson's notice claim was not concrete
and did not confer standing, id. at 887, the
district court ordered Robertson to show cause why her case
should not be dismissed for the same reason. In its order,
the court rejected as "simply wrong"
Robertson's assertion that it could approve the
settlement agreement without jurisdiction over the underlying
the district court dismissed the entire case for lack of
standing. It held that Groshek compelled that result
for Robertson's notice claim. With respect to the
adverse-action claim, the court ruled that because Robertson
had not pleaded facts connecting the lost offer with
Allied's failure to turn over a copy of the background
report, it too had to be dismissed. Had Robertson pleaded,
for example, that the report was inaccurate or that she
favorably could explain the report's content, the court
indicated that it might have ruled that she sustained an
Article III injury. It refused to permit her to amend her
complaint because she never indicated what facts she could
allege that would support jurisdiction. She now appeals.
Constitution confines "the judicial Power" of the
federal courts to "Cases" and
"Controversies." U.S. CONST, art. Ill. § 2.
Courts police this limit through the standing doctrine, among
others. Standing to bring a suit in federal court depends on
the plaintiff's having suffered an injury in fact, which
she can trace to the defendant's challenged conduct, and
which can be redressed by a favorable judicial decision.
Spokeo, 136 S.Ct. at 1547. The injury requirement is
the critical one in the present case. A qualifying injury
must be both concrete and particular to the plaintiff.
Id. at 1548. The ...