DC Circuit: credit card number in alleged national security investigation is “consumer report” under FCRA

When one comes across a case called Abdelfattah v. DHS alleging a pattern of law enforcement and immigration-authority harassment against a Jordanian national, the Fair Credit Reporting Act is usually not the first remedy that comes to mind. But in the D.C. Circuit's decision in that case this past Friday, an FCRA claim is the only one that survived (rejected were claims based on the Privacy Act, due process, and other sources of law, though many of these had procedural problems such as waiver).

Reversing the dismissal of the FCRA claim, the court held that credit card information about the plaintiff does qualify as a "consumer record" so as to bring the furnishing of that information and DHS's receipt of that information in the course of its investigation of Abdelfattah within the ambit of the FCRA. The allegation in the case is that this information was provided and received for an improper purpose under the FCRA. The D.C. Circuit reversed the dismissal and remanded for further proceedings on the claim.

Perhaps this result points a new way forward for plaintiffs in security-related abuse-of-power cases who have difficulty overcoming the various procedural doctrines (such as Bivens limitations) and tradition of judicial deference that shield government agencies and officials from liability on claims relating to national security and immigration. The decision is here.

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