LONG v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

Filing 52

MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 4/5/17. 4/5/17 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANK LONG, et al.,
Plaintiffs,
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY,
Defendant.

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CIVIL ACTION
NO. 16-1991

MEMORANDUM
TUCKER, C.J.

April 5, 2017

Presently before the Court are Defendant Southeastern Pennsylvania Transportation
Authority’s Motion to Dismiss the First Amended Class Action Complaint (Doc. 25), Plaintiffs’
Memorandum of Law in Opposition thereto (Doc. 27), and Defendant’s Reply in Further Support
of its Motion (Doc. 34). Upon careful consideration of the parties’ submissions and the
arguments presented to the Court during Oral Argument held on October 12, 2016, and for the
reasons set forth below, Defendant’s Motion is GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

The Fair Credit Reporting Act (“FCRA”)
This action arises out of alleged violations of the Fair Credit Reporting Act (“FCRA”), 15

U.S.C. § 1681 et seq., and Pennsylvania state law. 1 The FCRA was created “to ensure fair and
accurate credit reporting, promote efficiency in the banking system, and protect consumer
privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). The FCRA requires employers

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Because the Court finds that it lacks jurisdiction over Plaintiffs’ FCRA claims, the Court cannot
exercise jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs’ state law claims. Thus, the
Court will not address Plaintiffs’ state law claims in this Memorandum.
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who obtain consumer reports for employment purposes to provide a clear and conspicuous
disclosure, in writing, and in a document that consists solely of the disclosure (“stand-alone
disclosure”) to the consumer, before procurement. 15 U.S.C. § 1681b(b)(2)(A)(i) and (ii). The
FCRA also requires employers to provide a consumer with a copy of his consumer report and a
summary of rights under the FCRA before taking any adverse action against him. 15 U.S.C. §
1681b(b)(3)(A)(i) and (ii). Adverse actions include “a denial of employment or any other
decision for employment purposes that adversely affects any current or prospective employee”
and “an action taken or determination that is . . . adverse to the interests of the consumer.” 15
U.S.C. § 1681a(k)(1)(B).
“Any person who willfully fails to comply with any requirement [of the FCRA] with
respect to any consumer is liable to that consumer.” 15 U.S.C. § 1681n(a).
B.

The Parties and Allegations
Southeastern Pennsylvania Transportation Authority (“SEPTA”) is a public transit

authority organized under the laws of the Pennsylvania with its headquarters in Philadelphia.
(Compl. ¶ 33.) SEPTA is alleged to be a “person using consumer reports . . . for employment
purposes” who “has taken adverse action . . . based wholly or in part on” Plaintiffs’ consumer
reports. (Compl. ¶ 34.) Plaintiffs Frank Long, Joseph Shipley, and Michael White are
Philadelphia residents who applied and interviewed for positions with SEPTA between 2014 and
2016. (Compl. ¶¶ 21, 23–28, 30–31.) For the purposes of this Memorandum, Plaintiffs are
assumed to be “Consumers” as defined by the FCRA, 15 U.S.C. § 1681a(c). Plaintiffs allege that
they were denied employment by SEPTA because of their criminal history. (Compl. ¶¶ 44, 57,
69.)

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Plaintiffs assert that they completed forms disclosing prior drug-related convictions and
authorizing SEPTA to conduct background checks. (Compl. ¶¶ 42, 52, 65.) Plaintiffs claim that
the forms did not comply with the FCRA’s stand-alone disclosure requirement. Specifically,
Plaintiffs allege that the forms contained extraneous language, including language inquiring
about their educational history, employment history, probation or parole status, and job
suitability. Plaintiffs further allege that SEPTA did not provide any other authorization form that
complied with the FCRA. (Compl.¶¶ 43, 53, 66.)
Plaintiffs also allege that SEPTA did not provide Plaintiffs with a copy of their consumer
reports or a summary of their rights under the FCRA before revoking or denying their
employment offers. (Compl. ¶ 85.)
Plaintiff Long filed a class action complaint in this Court on April 27, 2016. Long later
amended his complaint, adding Shipley and White on May 26, 2016 (“First Amended
Complaint”). In Plaintiffs’ First Amended Complaint, Plaintiffs assert four claims against
SEPTA. 2 First, Plaintiffs allege that SEPTA willfully violated the FCRA because SEPTA failed
to provide a clear and conspicuous written disclosure, which would meet the FCRA’s stand2

In each claim, Plaintiffs seek to represent a class of individuals who applied for employment
with SEPTA within a specified period. The first cause of action is on behalf of the “FCRA
Disclosure Class,” which is comprised of SEPTA employment applicants for whom SEPTA
obtained a consumer report without providing a clear and conspicuous disclosure in writing, in a
document that consisted solely of the disclosure, before obtaining the report. (Compl. ¶ 96.) The
second cause of action is on behalf of the “FCRA Consumer Report Class,” which is comprised
of SEPTA employment applicants who were subject to an adverse action based on information
contained in a consumer report without receiving a copy of the consumer report before the
adverse action. (Compl. ¶ 97.) The third cause of action is on behalf of the “FCRA Summary of
Rights Class,” which is comprised of SEPTA employment applicants who were subject to an
adverse action based on information contained in a consumer report without receiving a written
description of their rights. (Compl. ¶ 97.) The fourth cause of action is on behalf of SEPTA
employment applicants who assert a violation of Pennsylvania state law. (Compl. ¶ 98.)

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alone requirement, before obtaining Plaintiffs’ consumer reports. (Compl. ¶¶ 112, 114–16.)
Second, Plaintiffs allege that SEPTA willfully violated the FCRA by failing to provide consumer
reports to Plaintiffs before revoking their employment offers. (Compl. ¶¶ 120–21, 123–25.)
Third, Plaintiffs allege that SEPTA willfully violated the FCRA by failing to provide Plaintiffs
with a summary of their rights under the FCRA before taking adverse employment actions
against them. (Compl. ¶¶ 129–30.) Lastly, Plaintiffs allege that SEPTA violated Pennsylvania
state law. (Compl. ¶¶ 138–39, 142.)
In the First Amended Complaint, Plaintiffs do not allege that their consumer reports were
inaccurate in any way.
Plaintiffs seek, inter alia, injunctive and declaratory relief, actual or statutory damages,
and exemplary and punitive damages. (Compl. ¶ 14.)
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) permits a court to dismiss a complaint for lack

of subject matter jurisdiction. When deciding a 12(b)(1) motion, the trial court must first
determine whether the motion presents a “facial” or “factual” attack on the claim “because that
distinction determines how the pleading must be reviewed.” Constitution Party of Pennsylvania
v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). When a party asserts a facial attack, it asserts that
the claim is insufficient to invoke subject matter jurisdiction as a threshold issue. Id.
When reviewing a 12(b)(1) motion that presents a facial attack, the court applies the same
standard of review as it would in reviewing a motion to dismiss under 12(b)(6). In re Horizon
Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017). Consequently, all
well-pleaded factual allegations contained in a complaint must be accepted as true and
interpreted in the light most favorable to the plaintiff. Argueta v. U.S. Immigration and Customs

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Enf’t., 643 F.3d 60, 74 (3d Cir. 2011). “To survive a motion to dismiss for lack of standing, a
complaint must contain sufficient factual matter that would establish standing if accepted as
true.” In re Horizon, 846 F.3d at 633 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted)).
In the 12(b)(1) motion presently before the Court, SEPTA asserts that there is a threshold
jurisdictional defect, lack of standing, but does not challenge the factual assertions in the First
Amended Complaint. Thus, SEPTA presents a facial 12(b)(1) motion. Accordingly, this Court
must review the motion by construing the factual allegations in the pleadings in the light most
favorable to Plaintiffs.
III.

DISCUSSION
SEPTA moves to dismiss Plaintiffs’ FCRA claims for lack of standing alleging, in part,

that Plaintiffs have not pled facts which demonstrate that Plaintiffs suffered a concrete and
particularized injury as a consequence of SEPTA’s purported FCRA violations. (Def.’s Mem. 6.)
SEPTA also moves to dismiss the First Amended Complaint for Plaintiffs’ failure to state a
claim for relief.
Plaintiffs argue that Defendant’s motion should be denied because Plaintiffs have pled
sufficient facts to establish every element of Article III standing, including that SEPTA’s
violation of their statutory rights caused Plaintiffs to suffer concrete and particularized harm.
(Pls.’ Mem. 7–15.) Plaintiffs further argue that they have sufficiently pled facts to support their
claims for relief under the FCRA and state law. (Pls.’ Mem. 16–24).
For the reasons set forth below, the Court finds that Plaintiffs lack standing. Therefore,
the Court will not address SEPTA’s failure to state a claim argument.

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Standing
Standing is “the threshold question in every federal case” and requires the court to
determine “whether the litigant is entitled to have the court decide the merits of the dispute or of
particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing requires a plaintiff to
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of a
defendant, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016).The party asserting federal jurisdiction bears the burden of
establishing each element of standing. Lujuan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The
same standing requirements apply to plaintiffs in class actions, and at least one named plaintiff in
a class action must have standing to maintain a suit. In re Horizon, 846 F.3d at 634.
SEPTA argues that Plaintiffs do not have standing because, in part, Plaintiffs failed to
demonstrate that Plaintiffs suffered an injury in fact resulting from SEPTA’s purported
procedural violations. (Def.’s Mem. 7–8.) Plaintiffs assert that the first element of the standing
requirement is met because each Plaintiff has pled a violation of his statutory right, which
establishes a particularized harm, and that SEPTA invaded Plaintiffs’ privacy and caused
informational injury, resulting in concrete harm. (Pls.’ Mem. 7.)
To establish an injury in fact, a plaintiff must demonstrate that he has suffered harm
“which is (a) [particularized and concrete] . . . and (b) actual or imminent, not conjectural or
hypothetical.” Lujuan, 504 U.S. at 560. Harm is “particularized” when it “affect[s] [a] plaintiff in
a personal and individual way.” Spokeo, 136 S. Ct. at 1548. Harm is “concrete” when it actually
exists and is real, and is not abstract. Id. An injury may be concrete even when it is intangible. Id.
at 1549. History and congressional judgment are instructive in determining whether an intangible
harm may satisfy the concreteness requirement. Id. Congress may “elevate to the status of legally

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cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Id.
(internal citation omitted). Despite Congress’ ability to elevate intangible harms, establishing
injury in fact is not automatic “whenever a statute grants [him] a statutory right and purports to
authorize [him] to sue to vindicate that right” because standing “requires a concrete injury even
in the context of a statutory violation.” Id. Therefore, a bare procedural violation without
concrete harm is insufficient to establish an injury in fact. Id. However, “the violation of a
procedural right granted by statute can be sufficient in some circumstances 3 to constitute injury
in fact . . . . [such that a plaintiff] need not allege any additional harm beyond the one Congress
has identified.” Id. (emphasis added).
The Third Circuit has held that “Congress has the power to define injuries . . . that were
previously inadequate in law.” In re Horizon, 846 F.3 at 638. However, “there are some
circumstances where the mere technical violation of a procedural requirement of a statute cannot,
in and of itself, constitute an injury in fact.” 846 F.3d at 638. Nevertheless, the Third Circuit has
yet to “consider the full reach of congressional power to elevate a procedural violation into an
injury in fact.” Id.
At the motion to dismiss stage, the injury in fact element requires a plaintiff to “allege
some specific, identifiable trifle of injury.” In re Horizon, 846 F.3d at 633 (citing Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014)). Therefore, “general factual allegations of
injury resulting from a defendant’s conduct may suffice.” Id. (internal citation omitted).
The Supreme Court in Spokeo did not change the requirements to establish Article III
standing. The Court simply highlighted the responsibility of courts to evaluate both particularity
and concreteness to establish an injury in fact.
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These circumstances may be limited to instances where there is a risk of real harm. See Spokeo,
136 S. Ct. at 1549.
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Here, Plaintiffs’ purported harm is particularized because each Plaintiff has pled a
violation of his statutory right, which affects each Plaintiff in a personal and individual way. The
purported harm is alleged to affect each plaintiff, not just the class. However, the Court is unable
to find that the purported harm in this case is concrete.
The Court finds that Plaintiffs’ allegations amount to bare procedural violations without
concrete harm. Plaintiffs have pled that SEPTA’s purported violation of the stand-alone
disclosure requirement caused them harm because SEPTA’s forms’:
(a) extraneous information causes confusion about the purpose of
the authorization . . . ;
(b) extraneous information impedes consumers from learning of
their substantive rights conferred by the FCRA, including those
pertaining to ensuring the reports’ accuracy, confidentiality, and
fairness; and
(c) requests for additional information including consumers’
contact information, education history, and criminal history
provides an opportunity for job applicants to incorrectly or
incompletely answer, which has the risk of leading to consumers’
denial of employment.
(Compl. ¶ 113.) Plaintiffs also allege that SEPTA’s failure to provide Plaintiffs with a copy of
their consumer reports or a summary of their rights, as required by the FCRA, caused them harm
because Plaintiffs could not “evaluate information contained in the consumer reports to ensure
accuracy,” “challenge and correct information,” or learn of their FCRA rights. (Compl. ¶¶ 122,
131.)
However, Plaintiffs have failed to allege any specific, identifiable trifle of injury or allege
that they were harmed in any non-abstract way as a consequence of SEPTA’s purported FCRA
violations. The Supreme Court stated that “a violation of one of the FCRA’s procedural
requirements may result in no harm.” Spokeo, 136 S. Ct. at 1550. The case before the Court is an

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example of that. Plaintiffs allege that SEPTA denied jobs to Plaintiffs based on their criminal
history, which Plaintiffs disclosed prior to SEPTA procuring their background checks.
Additionally, Plaintiffs do not allege that their reports were inaccurate in any way. Taking all of
Plaintiffs’ allegations as true, SEPTA’s purported FCRA violations did not cause the type of
harm to Plaintiffs, or present any material risk of harm, that would give rise to a de facto injury.
Although Plaintiffs assert in their brief that SEPTA invaded Plaintiffs’ privacy and
caused informational injury, resulting in concrete harm, these assertions are not pled in the First
Amended Complaint and, therefore, cannot properly be considered by the Court. Even if they
were, the Court finds Plaintiffs’ arguments unpersuasive. Plaintiffs’ attempt to turn a bare
procedural violation into an injury in fact fails.
Accordingly, Plaintiffs have not met their burden of establishing that any one of them has
suffered an injury in fact that would enable them to assert their FCRA claims. Thus, the Court
need not consider the other elements or whether Plaintiffs can establish a claim on which relief
can be granted for their FCRA and state law claims.
IV.

CONCLUSION
For the reasons set forth above, the Court grants Defendant’s Motion to Dismiss. An

appropriate Order follows.

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