Since the Supreme Court’s decision in TransUnion LLC v. Ramirez, many consumers have been unable to obtain relief for violations of their statutory rights under the Fair Credit Reporting Act. Yesterday’s decision by the Sixth Circuit in Merck v. Walmart, Inc. is another case in that line.
The plaintiff, Thomas Merck, had been extended a job offer at Walmart, conditioned on a successful background check. In the application process, he had, inadvertently, failed to disclose a prior misdemeanor conviction during his interview. The conviction turned up on the background check. Merck received a version of the report that said he was “not competitive” for the position, but did not explicitly state why. Walmart, on the other hand, received a report that said he was “not competitive” and also included a code indicating the reason- a negative item that had not been disclosed by the job applicant. Walmart then revoked the job offer.
Merck sued arguing that, because of the different version of the report he received, he did not know that he hadn’t been hired because of his failure to disclose the conviction–as opposed to the conviction itself. After TransUnion was decided, the district court granted summary judgment on standing grounds.
The Sixth Circuit rejected all of Merck’s standing theories on appeal. First, the court engaged in an extensive discussion of what is necessary to establish an informational injury under TransUnion, and concluding that Merck failed to meet those requirements, as he could not show that having the information he claimed he was entitled to — the missing code — would have helped him. The summary judgment record did not include any evidence that Merck could have persuaded Walmart to hire him despite his initial failure to identify the misdemeanor. And a “general interest in understanding ‘why his job application had gone wrong at Walmart'” was not enough for standing.
The court also rejected Merck’s arguments that “failing to receive a complete copy of a consumer report” is analogous “to the traditional constitutional harm of the denial of procedural due process,” and thus itself an adequate injury-in-fact, on the grounds that procedural due process claims entail intangible property interests that can only be conferred by state actors. It also rejected Merck’s attempts to show analogues to the harms associated with various traditional tort and contract claims.
