Author Topic: TRW, Inc. v. Andrews, U.S. Sup. Ct., 2001 (Syllabus.) [FCRA]  (Read 2386 times)

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Mod7135

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TRW, Inc. v. Andrews, U.S. Sup. Ct., 2001 (Syllabus.) [FCRA]
« on: October 16, 2007 05:42:20 PM »
The following case--TRW, Inc v. Andrews--is a U.S. Supreme Court decision and is controlling law everywhere in the U.S..  The Syllabus is below; the decision and concurrance will follow.

The lower court decision--titled "Andrews v. TRW, Inc."--has been posted following the U.S. Supreme Court concurring decision.

TRW INC. V. ANDREWS:  http://www.law.cornell.edu/supct/html/00-1045.ZS.html

[A .pdf of this document is attached for the convenience of DB users.  The text is a PUBLIC DOCUMENT and can be freely cited.  All else ©2007 Cornell University Law School.  All Rights Reserved.]
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SYLLABUS by Mod7135, Case Law moderator:

This case involves ID Theft where a receptionist at a doctor’s office stole the ID of a patient, Adelaide Andrews, the Plaintiff  in this action. On four different occasions, creditors ‘pulled’ reports from TRW; Andrews did not know about these ‘pulls’ and the accompanying disclosures until May 31, 1995 while she was trying to refinance her mortgage . TRW promptly corrected the record once she notified them of the error; Andrews filed suit in the United States District Court for the Central District of California. 

The complaint was filed on October 21, 1996, more than two years after the first two ‘pulls’. Her complaint alleged that  TRW willfully violated §1681e(a) by failing to maintain “reasonable procedures” to avoid improper disclosures and was liable under the FCRA for damages.  TRW then filed for partial summary judgment claiming that the action was time-barred under the FCRA, 15 U.S.C. §1681 since the only exception, for “willful misrepresentation”, had not been met.  Granting TRW their partial summary judgment at the trial level, the Ninth Circuit trial court agreed that the first two claims were indeed time-barred.

On initial appeal, the Ninth Circuit  Court of Appeals overturned the trial court decision holding that the discovery rule did  to Andrews’ case, holding to the general federal rule that the statute of limitations for a Federal action begins to “run” when a party knows or has reason to know of the violation. The case was then granted certiorari (accepted to be heard) to the U.S. Supreme Court.
 
The Supreme Court, in overturning the “Andrews v. TRW, Inc.”, 9th Circuit Court of Appeals decision, concluded that the SOL for filing claims under 15 U.S.C. §1681 is indeed two years.  Unwilling to overrule Congress’ intent as codified in the language of the FCRA, the court’s decision states that the SOL begins to “run” on the date the alleged violation actually happened, and NOT when the consumer discovers the error, unless the exception for “willful misrepresentation” is met under §1681p of the FCRA.

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TRW INC. V. ANDREWS (00-1045) 534 U.S. 19 (2001)
225 F.3d 1063, reversed and remanded.
Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will
be released, as is being done in connection with this
case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the
Court but has been prepared by the Reporter of
Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200
U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES
TRW INC. v. ANDREWS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 00—1045. Argued October 9, 2001–Decided November 13, 2001

The Fair Credit Reporting Act (FCRA or Act) requires credit reporting agencies, inter
alia, to maintain “reasonable procedures” to avoid improper disclosures of consumer
credit information. 15 U.S.C. § 1681e(a). The Act’s limitations provision prescribes that
an action to enforce any liability created under the Act must be brought “within two
years from the date on which the liability arises, except that where a defendant has …
willfully misrepresented any information required under [the Act] to be disclosed to
[the plaintiff] and the information … is material to [a claim under the Act], the action
may be brought at any time within two years after [the plaintiff’s] discovery of the
misrepresentation.” §1681p.

Plaintiff-respondent Adelaide Andrews visited a doctor’s office in Santa Monica,
California and there filled out a form listing her name, Social Security number, and
other basic information. An office receptionist named Andrea Andrews (the Impostor)
copied the data and moved to Las Vegas, where she attempted to open credit accounts
using Andrews’ Social Security number and her own last name and address.

On July 25, September 27, and October 28, 1994, and on January 3, 1995,
defendant-petitioner TRW Inc. furnished copies of Andrews’ credit report to companies
from which the Impostor sought credit. Andrews did not learn of these disclosures until
May 31, 1995, when she sought to refinance her home and in the process received a
copy of her credit report reflecting the Impostor’s activity. She sued TRW for injunctive
and monetary relief on October 21, 1996, alleging that TRW had violated the Act by
failing to verify, predisclosure of her credit report to third parties, that Adelaide
Andrews of Santa Monica initiated the credit applications or was otherwise involved in
the underlying transactions. TRW moved for partial summary judgment, arguing, inter
alia, that the FCRA’s statute of limitations had expired on Andrews’ claims stemming
from TRW’s first two disclosures because both occurred more than two years before she
brought suit. Andrews countered that the limitations period on those claims did not
commence until she discovered the disclosures. The District Court held the two claims
time barred, reasoning that §1681p’s explicit exception, which covers only
misrepresentation claims, precludes judicial attribution of a broader discovery rule to
the FCRA. The Ninth Circuit reversed, applying what it considered to be the “general
federal rule” that a statute of limitations starts running when a party knows or has
reason to know she was injured, unless Congress expressly legislates otherwise.

Held:

1. A general discovery rule does not govern §1681p. That section explicitly delineates
the exceptional case in which discovery triggers the two-year limitation, and Andrews’
case does not fall within the exceptional category. Pp. 6—13.

(a) Even if the Ninth Circuit correctly identified a general presumption in favor of
a discovery rule, an issue this case does not oblige this Court to decide, the Appeals
Court significantly overstated the scope and force of such a presumption. That court
placed undue weight on Holmberg v. Armbrecht, 327 U.S. 392, 397, which stands for
the proposition that equity tolls the statute of limitations in cases of fraud or
concealment, but does not establish a general presumption across all contexts. The only
other cases in which the Court has recognized a prevailing discovery rule, moreover,
were decided in two contexts, latent disease and medical malpractice, “where the cry
for [such a] rule is loudest,” Rotella v. Wood, 528 U.S. 549, 555. See United States v.
Kubrick, 444 U.S. 111; Urie v. Thompson, 337 U.S. 163. The Court has also observed that
lower federal courts generally apply a discovery rule when a statute is silent on the
issue, but has not adopted that rule as its own. Further, and beyond doubt, the Court
has never endorsed the Ninth Circuit’s view that Congress can convey its refusal to
adopt a discovery rule only by explicit command, rather than by implication from the
particular statute’s structure or text. Thus, even if the presumption identified by the
Ninth Circuit exists, it would not apply to the FCRA, for that Act does not govern an
area of the law that cries out for application of a discovery rule and is not silent on the
issue of when the statute of limitations begins to run. Pp. 6—7.

(b) Section 1681p’s text and structure evince Congress’ intent to preclude judicial
implication of a discovery rule. Where Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are not to be implied, in the
absence of evidence of a contrary legislative intent. Andrus v. Glover Constr. Co., 446
U.S. 608, 616—617. Section 1681p provides that the limitation period generally runs
from the date “liability arises,” subject to a single exception for cases involving a
defendant’s willful misrepresentation of material information. It would distort §1681p’s
text to convert the exception into the rule. See Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168. Pp. 7—8.
(c) At least equally telling, reading a general discovery rule into §1681p would in
practical effect render the express exception superfluous in all but the most unusual
circumstances. In the paradigmatic setting in which a plaintiff requests a credit report
and the reporting agency responds by concealing its wrongdoing, the express exception
would do no work other than that performed by a general discovery rule. The Court
rejects Andrews’ and the Government’s attempt to give some independent scope to the
exception by characterizing it as a codification of the doctrine of equitable estoppel.
The scenario constructed by Andrews and the Government to support this
characterization is unlikely to occur in reality. In any event, Andrews and the
Government concede that the independent function one could attribute to the express
exception under their theory would arise only in rare and egregious cases. Adopting
their position would therefore render the express exception insignificant, if not wholly
superfluous, contrary to a cardinal principle of statutory construction. Pp. 8—11.
(d) Andrews’ two additional arguments in defense of the decision below are
unconvincing. First, her contention that a discovery rule is expressed in the words
framing §1681p’s general rule–“date on which the liability arises”–is not compelled by
the dictionary definition of “arise” and is unsupported by this Court’s precedent.
Second, Andrews’ reliance on §1681p’s legislative history fails to convince the Court
that Congress intended sub silentio to adopt a general discovery rule in addition to the
limited one it expressly provided. Pp. 11—13.

2. Because the issue was not raised or briefed below, this Court does not reach
Andrews’ alternative argument that, even if §1681p does not incorporate a general
discovery rule, “liability” does not “arise” under the FCRA when a violation occurs, but
only on a sometimes later date when “actual damages” materialize. The Court notes
that the Ninth Circuit has not adopted Andrews’ argument and the Government does not
join her in advancing it here. In any event, it is doubtful that the argument, even if
valid, would aid Andrews in this case. Pp. 13—15.
225 F.3d 1063, reversed and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and
Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., filed an
opinion concurring in the judgment, in which Thomas, J., joined.
« Last Edit: October 19, 2007 05:18:53 AM by Mod7135 »

Mod7135

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Re: TRW, Inc. v. Andrews, U.S. Sup. Ct., 2001 (Decision.)
« Reply #1 on: October 16, 2007 05:52:16 PM »
This is the U.S. Supreme Court decision for TRW INC. v. Andrews.

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TRW INC. V. ANDREWS (00-1045) 534 U.S. 19 (2001)
225 F.3d 1063, reversed and remanded.

Opinion of the Court

NOTICE:  This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 00—1045

TRW INC., PETITIONER v. ADELAIDE ANDREWS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[November 13, 2001]

    Justice Ginsburg delivered the opinion of the Court.

    This case concerns the running of the two-year statute of limitations governing suits based on the Fair Credit Reporting Act (FCRA or Act), as added, 84 Stat. 1127, and amended, 15 U.S.C. § 1681 et seq. (1994 ed. and Supp. V).1 The time prescription appears in §1681p, which sets out a general rule and an exception. Generally, an action to enforce any liability created by the Act may be brought “within two years from the date on which the liability arises.” The exception covers willful misrepresentation of “any information required under [the Act] to be disclosed to [the plaintiff]”: when such a representation is material to a claim under the Act, suit may be brought “within two years after [the plaintiff’s] discovery … of the misrepresentation.”

    Section 1681p’s exception is not involved in this case; the complaint does not allege misrepresentation of information that the FCRA “require[s ] … to be disclosed to [the plaintiff].” Plaintiff-respondent Adelaide Andrews nevertheless contends, and the Ninth Circuit held, that §1681p’s generally applicable two-year limitation commenced to run on Andrews’ claims only upon her discovery of defendant-petitioner TRW Inc.’s alleged violations of the Act.

    We hold that a discovery rule does not govern §1681p. That section explicitly delineates the exceptional case in which discovery triggers the two-year limitation. We are not at liberty to make Congress’ explicit exception the general rule as well.

I

A

    Congress enacted the FCRA in 1970 to promote efficiency in the Nation’s banking system and to protect consumer privacy. See 15 U.S.C. § 1681(a) (1994 ed.). As relevant here, the Act seeks to accomplish those goals by requiring credit reporting agencies to maintain “reasonable procedures” designed “to assure maximum possible accuracy of the information” contained in credit reports, §1681e(b), and to “limit the furnishing of [such reports] to” certain statutorily enumerated purposes, §1681e(a); 15 U.S.C. § 1681b (1994 ed. and Supp. V). The Act creates a private right of action allowing injured consumers to recover “any actual damages” caused by negligent violations and both actual and punitive damages for willful noncompliance. See 15 U.S.C. § 1681n 1681o (1994 ed.).2

B

    The facts of this case are for the most part undisputed. On June 17, 1993, Adelaide Andrews visited a radiologist’s office in Santa Monica, California. She filled out a new patient form listing certain basic information, including her name, birth date, and Social Security number. Andrews handed the form to the office receptionist, one Andrea Andrews (the Impostor), who copied the information and thereafter moved to Las Vegas, Nevada. Once there, the Impostor attempted on numerous occasions to open credit accounts using Andrews’ Social Security number and her own last name and address.

     On four of those occasions, the company from which the Impostor sought credit requested a report from TRW. Each time, TRW’s computers registered a match between Andrews’ Social Security number, last name, and first initial and therefore responded by furnishing her file. TRW thus disclosed Andrews’ credit history at the Impostor’s request to a bank on July 25, 1994; to a cable television company on September 27, 1994; to a department store on October 28, 1994; and to another credit provider on January 3, 1995. All recipients but the cable company rejected the Impostor’s applications for credit.

    Andrews did not learn of these disclosures until May 31, 1995, when she sought to refinance her home mortgage and in the process received a copy of her credit report reflecting the Impostor’s activity. Andrews concedes that TRW promptly corrected her file upon learning of its mistake. She alleges, however, that the blemishes on her report not only caused her inconvenience and emotional distress, they also forced her to abandon her refinancing efforts and settle for an alternative line of credit on less favorable terms.

    On October 21, 1996, almost 17 months after she discovered the Impostor’s fraudulent conduct and more than two years after TRW’s first two disclosures, Andrews filed suit in the United States District Court for the Central District of California. Her complaint stated two categories of FCRA claims against TRW, only the first of which is relevant here.3 See App. 15—17. Those claims alleged that TRW’s four disclosures of her information in response to the Impostor’s credit applications were improper because TRW failed to verify, predisclosure, that Adelaide Andrews of Santa Monica initiated the requests or was otherwise involved in the underlying transactions. Andrews asserted that by processing requests that matched her profile on Social Security number, last name, and first initial but did not correspond on other key identifiers, notably birth date, address, and first name, TRW had facilitated the Impostor’s identity theft. According to Andrews, TRW’s verification failure constituted a willful violation of §1681e(a), which requires credit reporting agencies to maintain “reasonable procedures” to avoid improper disclosures. She sought injunctive relief, punitive damages, and compensation for the “expenditure of time and money, commercial impairment, inconvenience, embarrassment, humiliation and emotional distress” that TRW had allegedly inflicted upon her. App. 15—16.

    TRW moved for partial summary judgment, arguing, inter alia, that the FCRA’s statute of limitations had expired on Andrews’ claims based on the July 25 and September 27, 1994, disclosures because both occurred more than two years before she brought suit. Andrews countered that her claims as to all four disclosures were timely because the limitations period did not commence until May 31, 1995, the date she learned of TRW’s alleged wrongdoing. The District Court, agreeing with TRW that §1681p does not incorporate a general discovery rule, held that relief stemming from the July and September 1994 disclosures was time barred. Andrews v. Trans Union Corp., 7 F. Supp. 2d 1056, 1066—1067 (CD Cal. 1998).4

    The Court of Appeals for the Ninth Circuit reversed this ruling, applying what it considered to be the “general federal rule … that a federal statute of limitations begins to run when a party knows or has reason to know that she was injured.” 225 F.3d 1063, 1066 (2000). The court rejected the District Court’s conclusion that the text of §1681p, and in particular the limited exception set forth in that section, precluded judicial attribution of such a rule to the FCRA. “[U ]nless Congress has expressly legislated otherwise,” the Ninth Circuit declared, “the equitable doctrine of discovery is read into every federal statute of limitations.” Id., at 1067 (internal quotation marks omitted). Finding no such express directive, the Court of Appeals held that “none of [Andrews’] injuries were stale when suit was brought.” Id., at 1066. Accordingly, the court reinstated Andrews’ improper disclosure claims and remanded them for trial.

    In holding that §1681p incorporates a general discovery rule, the Ninth Circuit parted company with four other Circuits; those courts have concluded that a discovery exception other than the one Congress expressed may not be read into the Act. See Clark v. State Farm Fire & Casualty Ins. Co., 54 F.3d 669 (CA10 1995); Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175 (CA7 1989); Houghton v. Insurance Crime Prevention Institute, 795 F.2d 322 (CA3 1986); Clay v. Equifax, Inc., 762 F.2d 952 (CA11 1985). We granted certiorari to resolve this conflict, 532 U.S. 902 (2001), and now reverse.

II

    The Court of Appeals rested its decision on the premise that all federal statutes of limitations, regardless of context, incorporate a general discovery rule “unless Congress has expressly legislated otherwise.” 225 F.3d, at 1067. To the extent such a presumption exists, a matter this case does not oblige us to decide, the Ninth Circuit conspicuously overstated its scope and force.

    The Appeals Court principally relied on our decision in Holmberg v. Armbrecht, 327 U.S. 392 (1946). See 225 F.3d, at 1067. In that case, we instructed with particularity that “where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered.” Holmberg, 327 U.S., at 397 (internal quotation marks omitted). Holmberg thus stands for the proposition that equity tolls the statute of limitations in cases of fraud or concealment; it does not establish a general presumption applicable across all contexts. The only other cases in which we have recognized a prevailing discovery rule, moreover, were decided in two contexts, latent disease and medical malpractice, “where the cry for [such a] rule is loudest,” Rotella v. Wood, 528 U.S. 549, 555 (2000). See United States v. Kubrick, 444 U.S. 111 (1979); Urie v. Thompson, 337 U.S. 163 (1949).

    We have also observed that lower federal courts “generally apply a discovery accrual rule when a statute is silent on the issue.” Rotella, 528 U.S., at 555; see also Klehr v. A. O. Smith Corp., 521 U.S. 179, 191 (1997) (citing Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 342 (CADC 1991), for the proposition that “federal courts generally apply [a] discovery accrual rule when [the] statute does not call for a different rule”). But we have not adopted that position as our own. And, beyond doubt, we have never endorsed the Ninth Circuit’s view that Congress can convey its refusal to adopt a discovery rule only by explicit command, rather than by implication from the structure or text of the particular statute.

    The Ninth Circuit thus erred in holding that a generally applied discovery rule controls this case. The FCRA does not govern an area of the law that cries out for application of a discovery rule, nor is the statute “silent on the issue” of when the statute of limitations begins to run. Section 1681p addresses that precise question; the provision reads:

    “An action to enforce any liability created under [the Act] may be brought … within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under [the Act] to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant’s liability to that individual under [the Act], the action may be brought at any time within two years after discovery by the individual of the misrepresentation.”

We conclude that the text and structure of §1681p evince Congress’ intent to preclude judicial implication of a discovery rule.

    “Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616—617 (1980). Congress provided in the FCRA that the two-year statute of limitations runs from “the date on which the liability arises,” subject to a single exception for cases involving a defendant’s willful misrepresentation of material information. §1681p. The most natural reading of §1681p is that Congress implicitly excluded a general discovery rule by explicitly including a more limited one. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) (“Expressio unius est exclusio alterius.”). We would distort §1681p’s text by converting the exception into the rule. Cf. United States v. Brockamp, 519 U.S. 347, 352 (1997) (“explicit listing of exceptions” to running of limitations period considered indicative of Congress’ intent to preclude “courts [from] read[ing] other unmentioned, open-ended, ‘equitable’ exceptions into the statute”).

    At least equally telling, incorporating a general discovery rule into §1681p would not merely supplement the explicit exception contrary to Congress’ apparent intent; it would in practical effect render that exception entirely superfluous in all but the most unusual circumstances. A consumer will generally not discover the tortious conduct alleged here–the improper disclosure of her credit history to a potential user–until she requests her file from a credit reporting agency. If the agency responds by concealing the offending disclosure, both a generally applicable discovery rule and the misrepresentation exception would operate to toll the statute of limitations until the concealment is revealed. Once triggered, the statute of limitations would run under either for two years from the discovery date. In this paradigmatic setting, then, the misrepresentation exception would have no work to do.

    Both Andrews and the Government, appearing as amicus in her support, attempt to generate some role for the express exception independent of that filled by a general discovery rule. They conceive of the exception as a codification of the judge-made doctrine of equitable estoppel, which, they argue, operates only after the discovery rule has triggered the limitations period, preventing a defendant from benefiting from its misrepresentation by tolling that period until the concealment is uncovered.

    To illustrate this supposed separate application, Andrews and the Government frame the following scenario: A credit reporting agency injures a consumer by disclosing her file for an improper purpose. The consumer has no reason to suspect the violation until a year later, when she applies for and is denied credit as a result of the agency’s wrongdoing. At that point, the Government asserts, “the consumer would presumably be put on inquiry notice of the violation, and the discovery rule would start the running of the normal limitation period.” Brief for United States et al. as Amici Curiae 22 (emphasis omitted); see Tr. of Oral Arg. 35—36 (argument in accord by Andrews’ counsel). Some days or months later, the consumer follows up on her suspicions by requesting a copy of her credit report, to which the agency responds by concealing the initial improper disclosure. According to Andrews and the Government, the misrepresentation exception would then operate to toll the already-commenced limitations period until the agency reveals its wrongdoing.

    We reject this argument for several reasons. As an initial matter, we are not persuaded by this effort to distinguish the practical function of a discovery rule and the express exception, because we doubt that the supporting scenario is likely to occur outside the realm of theory. The fatal weakness in the narrative is its assumption that a consumer would be charged with constructive notice of an improper disclosure upon denial of a credit application. If the consumer habitually paid her bills on time, the denial might well lead her to suspect a prior credit agency error. But the credit denial would place her on “inquiry notice,” and the discovery rule would trigger the limitations period at that point, only if a reasonable person in her position would have learned of the injury in the exercise of due diligence. See Stone v. Williams, 970 F.2d 1043, 1049 (CA2 1992) (“The duty of inquiry having arisen, plaintiff is charged with whatever knowledge an inquiry would have revealed.”); 2 C. Corman, Limitation of Actions §11.1.6, p. 164 (1991) (“It is obviously unreasonable to charge the plaintiff with failure to search for the missing element of the cause of action if such element would not have been revealed by such search.”).

    In the usual circumstance, the plaintiff will gain knowledge of her injury from the credit reporting agency. The scenario put forth by Andrews and the Government, however, requires the assumption that, even if the consumer exercised reasonable diligence by requesting her credit report without delay, she would not in fact learn of the disclosure because the credit reporting agency would conceal it. The uncovering of that concealment would remain the triggering event for both the discovery rule and the express exception. In this scenario, as in the paradigmatic one, the misrepresentation exception would be superfluous.

    In any event, both Andrews and the Government concede that the independent function one could attribute to the express exception would arise only in “rare and egregious case[s ].” Brief for Respondent 32—33; see Brief for United States et al. as Amici Curiae 24 (implied discovery rule would apply in “vast majority” of cases). The result is that a rule nowhere contained in the text of §1681p would do the bulk of that provision’s work, while a proviso accounting for more than half of that text would lie dormant in all but the most unlikely situations.

    It is “a cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” Duncan v. Walker, 533 U.S. ___, ___ (2001) (slip op., at 6) (internal quotation marks omitted); see United States v. Menasche, 348 U.S. 528, 538—539 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a statute.’ ” (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883))). “[W]ere we to adopt [Andrews’] construction of the statute,” the express exception would be rendered “insignificant, if not wholly superfluous.” Duncan, 533 U.S., at ___ (slip op., at 5). We are “reluctant to treat statutory terms as surplusage in any setting,” id., at ___ (slip op., at 6) (internal alteration and quotation marks omitted), and we decline to do so here.5

    Andrews advances two additional arguments in defense of the decision below, neither of which we find convincing. She contends, first, that the words “date on which the liability arises”–the phrase Congress used to frame the general rule in §1681p–“literally expres[s ]” a discovery rule because liability does not “arise” until it “present[s ] itself” or comes to the attention of the potential plaintiff. Brief for Respondent 13. The dictionary definition of the word “arise” does not compel such a reading; to the contrary, it can be used to support either party’s position. See Webster’s Third New International Dictionary 117 (1966) (arise defined as “to come into being”; “to come about”; or “to become apparent in such a way as to demand attention”); Black’s Law Dictionary 138 (rev. 4th ed. 1968) (“to come into being or notice”). And TRW offers a strong argument that we have in fact construed that word to imply the result Andrews seeks to avoid. See Brief for Petitioner 16—20 (citing, inter alia, McMahon v. United States, 342 U.S. 25 (1951) (statute of limitations triggered on date “cause of action arises” incorporates injury-occurrence rule)). On balance, we conclude, the phrase “liability arises” is not particularly instructive, much less dispositive of this case.

    Similarly unhelpful, in our view, is Andrews’ reliance on the legislative history of §1681p. She observes that early versions of that provision, introduced in both the House and Senate, keyed the start of the limitations period to “the date of the occurrence of the violation.” S. 823, 91st Cong., 1st Sess., §618 (1969); H. R. 16340, 91st Cong., 2d. Sess., §27 (1970); H. R. 14765, 91st Cong., 1st Sess., §617 (1969). From the disappearance of that language in the final version of §1681p, Andrews infers a congressional intent to reject the rule that the deleted words would have plainly established.

    As TRW notes, however, Congress also heard testimony urging it to enact a statute of limitations that runs from “the date on which the violation is discovered” but declined to do so. Hearings before the Subcommittee on Consumer Affairs of the House Committee on Banking and Currency, 91st Cong., 2d Sess., 188 (1970). In addition, the very change to §1681p’s language on which Andrews relies could be read to refute her position. The misrepresentation exception was added at the same time Congress changed the language “date of the occurrence of the violation” to “liability arises.” Compare S. 823, 91st Cong., 1st Sess., §618 (1969); H. R. 16340, 91st Cong., 2d. Sess., §27 (1970); H. R. 14765, 91st Cong., 1st Sess., §617 (1969), with H. R. Rep. No. 91—1587, p. 22 (1970). We doubt that Congress, when it inserted a carefully worded exception to the main rule, intended simultaneously to create a general discovery rule that would render that exception superfluous. In sum, the evidence of the early incarnations of §1681p, like the “liability arises” language on which Congress ultimately settled, fails to convince us that Congress intended sub silentio to adopt a general discovery rule in addition to the limited one it expressly provided.

III

    In this Court, Andrews for the first time presents an alternative argument based on the “liability arises” language of §1681p. Brief for Respondent 22—25. She contends that even if §1681p does not incorporate a discovery rule, “liability” under the FCRA does not necessarily “arise” when a violation of the Act occurs. Noting that the FCRA’s substantive provisions tie “liability” to the presence of “actual damages,” §§1681n, 1681o, and that “arise” means at least “to come into existence,” Andrews concludes that “liability arises” only when actual damages materialize. Not until then, she maintains, will all the essential elements of a claim coalesce: “duty, breach, causation, and injury.” Brief for Respondent 23; see Hyde v. Hibernia Nat. Bank, 861 F.2d 446, 449 (CA5 1988) (“The requirement that a consumer sustain some injury in order to establish a cause of action suggests that the statute should be triggered when the agency issues an erroneous report to an institution with which the consumer is dealing.”).

    Accordingly, Andrews asserts, her claims are timely: The disputed “liability” for actual damages did not “arise” until May 1995, when she suffered the emotional distress, missed opportunities, and inconvenience cataloged in her complaint; prior to that time, “she had no FCRA claim to bring,” Brief for Respondent 24 (emphasis omitted). Cf. Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 200—201 (1997) (rejecting construction of statute under which limitations period would begin running before cause of action existed in favor of “standard rule” that the period does not commence earlier than the date “the plaintiff can file suit and obtain relief ”).6

    We do not reach this issue because it was not raised or briefed below. See Reply Brief for Petitioner 18—19. We note, however, that the Ninth Circuit has not embraced Andrews’ alternative argument, see 225 F.3d, at 1066 (“Liability under the [Act] arises when a consumer reporting agency fails to comply with §1681e.”), and the Government does not join her in advancing it here.

    Further, we doubt that the argument, even if valid, would aid Andrews in this case. Her claims alleged willful violations of §1681e(a) and are thus governed by §1681n. At the time of the events in question, that provision stated: “Any consumer reporting agency … which willfully fails to comply with any requirement imposed under [the Act] with respect to any consumer is liable to that consumer in an amount equal to the sum of … any actual damages” and “such amount of punitive damages as the court may allow.” 15 U.S.C. § 1681n (1994 ed.). Punitive damages, which Andrews sought in this case, could presumably be awarded at the moment of TRW’s alleged wrongdoing, even if “actual damages” did not accrue at that time. On Andrews’ theory, then, at least some of the liability she sought to enforce arose when the violations occurred, and the limitations period therefore began to run at that point.

*       *       *

    For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.
Notes

1.  Congress has revised the FCRA extensively since the events at issue, but has not altered the provisions material to this case.

2.  Under 1996 amendments to §1681n, a plaintiff may also recover statutory damages of between $100 and $1,000 for willful violations. See 15 U.S.C. § 1681n (a)(1)(A) (1994 ed., Supp. V).

3.  The second alleged that TRW had collected information about the Impostor’s activities and inaccurately attributed that activity to Andrews, in violation of its obligation under §1681e(b) to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom [a] report relates.” A jury resolved this claim in favor of TRW. The complaint also stated FCRA claims against Trans Union Corporation, another credit reporting agency involved in the Impostor’s conduct. In addition, Andrews brought a state-law claim against each defendant. The resolution of these claims is not at issue here.

4. The District Court also granted summary judgment to TRW on the two remaining improper disclosure claims, reasoning that TRW maintained adequate procedures and that the disputed disclosures had been made for a permissible purpose as defined by §1681b. See Andrews v. Trans Union Corp., 7 F. Supp. 2d, at 1068—1071. The Ninth Circuit reversed that ruling. 225 F.3d 1063, 1067—1068 (2000). Such questions, the Appeals Court held, “needed determination by a jury not a judge.” Id., at 1068.

5.  Similarly, even if we agreed that the discovery and equitable estoppel doctrines could comfortably coexist in this setting, we would reject the contention that we are therefore free to incorporate both into the FCRA. As we have explained, see supra, at 7—8, we read Congress’ codification of one judge-made doctrine not as a license to imply others, but rather as an intentional rejection of those it did not codify.

6.  The opinion concurring in the judgment rips Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997), from its berth, see post, at 1, 3; we here set the record straight. The question presented in Bay Area Laundry was whether a statute of limitations could commence to run on one day while the right to sue ripened on a later day. We answered that question, and only that question, “no,” unless the statute indicates otherwise. See Bay Area Laundry, 522 U.S., at 200—201. Continuing on beyond the place where the concurrence in the judgment leaves off, we clarified: “Unless Congress has told us otherwise in the legislation at issue, a cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief. See Reiter v. Cooper, 507 U.S. 258, 267 (1993) (“While it is theoretically possible for a statute to create a cause of action that accrues at one time for the purpose of calculating when the statute of limitations begins to run, but at another time for the purpose of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute.”).” Id., at 201.
« Last Edit: October 16, 2007 06:03:07 PM by Mod7135 »

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TRW, Inc. v. Andrews, U.S. Sup. Ct., 2001 (Concurrance.)
« Reply #2 on: October 16, 2007 06:00:42 PM »
This is the Concurrance to the above decision by Justice Scalia:

http://www.law.cornell.edu/supct/html/00-1045.ZC.html
---------------------------------------------------------------------------------------------------------------

TRW INC. V. ANDREWS (00-1045) 534 U.S. 19 (2001)
225 F.3d 1063, reversed and remanded.

Scalia, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

No. 00—1045
TRW INC., PETITIONER v. ADELAIDE ANDREWS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[November 13, 2001]

    Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.

    As the Court notes, ante, at 5, 6, the Court of Appeals based its decision on what it called the “general federal rule … that a federal statute of limitations begins to run when a party knows or has reason to know that she was injured,” 225 F.3d 1063, 1066 (CA9 2000). The Court declines to say whether that expression of the governing general rule is correct. See ante, at 6 (“To the extent such a presumption exists, a matter this case does not oblige us to decide …”). There is in my view little doubt that it is not, and our reluctance to say so today is inexplicable, given that we held, a mere four years ago, that a statute of limitations which says the period runs from “the date on which the cause of action arose,” 29 U.S.C. § 1451(f)(1) (1994 ed.), “incorporates the standard rule that the limitations period commences when the plaintiff has a complete and present cause of action,” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (emphasis added and internal quotation marks omitted).1

    Bay Area Laundry quoted approvingly our statement in Clark v. Iowa City, 20 Wall. 583, 589 (1875), that “[a]ll statutes of limitation begin to run when the right of action is complete … .” This is unquestionably the traditional rule: absent other indication, a statute of limitations begins to run at the time the plaintiff “has the right to apply to the court for relief … .” 1 H. Wood, Limitation of Actions §122a, p. 684 (4th ed. 1916). “That a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, does not postpone the period of limitation.” 2 Wood, supra, §276c(1), at 1411.

    The injury-discovery rule applied by the Court of Appeals is bad wine of recent vintage. Other than our recognition of the historical exception for suits based on fraud, e.g., Bailey v. Glover, 21 Wall. 342, 347—350 (1875), we have deviated from the traditional rule and imputed an injury-discovery rule to Congress on only one occasion. Urie v. Thompson, 337 U.S. 163, 169—171 (1949).2 We did so there because we could not imagine that legislation as “humane” as the Federal Employers’ Liability Act would bar recovery for latent medical injuries. Id., at 170. We repeated this sentiment in Rotella v. Wood, 528 U.S. 549, 555 (2000), saying that the “cry for a discovery rule is loudest” in the context of medical-malpractice suits; and we repeat it again today with the assertion that the present case does not involve “an area of the law that cries out for application of a discovery rule,” ante, at 7. These cries, however, are properly directed not to us, but to Congress, whose job it is to decide how “humane” legislation should be–or (to put the point less tendentiously) to strike the balance between remediation of all injuries and a policy of repose. See Amy v. Watertown (No. 2), 130 U.S. 320, 323—324 (1889) (“[T]he cases in which [the statute of limitations may be suspended by causes not mentioned in the statute itself] are very limited in character, and are to be admitted with great caution; otherwise the court would make the law instead of administering it”).

    Congress has been operating against the background rule recognized in Bay Area Laundry for a very long time. When it has wanted us to apply a different rule, such as the injury-discovery rule, it has said so. See, e.g., 18 U.S.C. § 1030(g) (1994 ed., Supp. V).3 See also, e.g., 15 U.S.C. § 77m (1994 ed., Supp. V);4 42 U.S.C. § 9612(d)(2) (1994 ed.).5 To apply a new background rule to previously enacted legislation would reverse prior congressional judgments; and to display uncertainty regarding the current background rule makes all unspecifying new legislation a roll of the dice. Today’s opinion, in clarifying the meaning of 15 U.S.C. § 1681p casts the meaning of innumerable other limitation periods in doubt.

    Because there is nothing in this statute to contradict the rule that a statute of limitations begins to run when the cause of action is complete, I concur in the judgment of the Court.

Notes

1.  This analysis does not, as the Court asserts, ante, at 14, n. 6, “ri[p] Bay Area Laundry . . . from its berth.” The question presented on which certiorari was granted in the case was not, as the Court now recharacterizes it, the generalized inquiry “whether a statute of limitations could commence to run on one day while the right to sue ripened on a later day,” ibid., but rather (as set forth in somewhat abbreviated form in petitioner Bay Area Laundry’s merits brief) the much more precise question, “When does the statute of limitations begin to run on an action under the Multiemployer Pension Plan Amendments Act, 29 U.S.C. § 1381 et seq., to collect overdue employer withdrawal liability payments? ” Brief for Petitioner in No. 96—370, O.T. 1997, p. i. (Framing of the question in respondent Ferbar Corporation’s merits brief was virtually identical.) The Court’s Bay Area Laundry opinion introduced its discussion of the merits as follows: “[T]he Ninth Circuit’s decision conflicts with an earlier decision of the District of Columbia Circuit [which] held that the statute of limitations . . . runs from the date the employer misses a scheduled payment, not from the date of complete withdrawal. . . . The Third and Seventh Circuits have also held that the statute of limitations runs from the failure to make a payment . . . . We granted certiorari . . . to resolve these conflicts.” 522 U.S., at 200. The Court’s assertion that we did not answer the question presented, and did not resolve the conflicts–held only that the Ninth Circuit was wrong to say that the limitations period commenced before there was a right of action, and not that the other circuits were right to say that the period commenced upon the failure to make a payment–is as erroneous as it is implausible. Bay Area Laundry held that the cause of action arose when “the employer violated an obligation owed the plan,” id., at 202, because “the standard rule” is that the period begins to run when the plaintiff has a “complete and present cause of action,” id., at 201 (internal quotation marks omitted).

2.  As the Court accurately notes, ante, at 6—7, in one other case we simply observed (without endorsement) that several Courts of Appeals had substituted injury-discovery for the traditional rule in medical-malpractice actions under the Federal Tort Claims Act, see United States v. Kubrick, 444 U.S. 111, 120, and n. 7 (1979), and in two other cases observed (without endorsement) that lower federal courts “generally apply” an injury-discovery rule, see Rotella v. Wood, 528 U.S. 549, 555 (2000); Klehr v. A. O. Smith Corp., 521 U.S. 179, 191 (1997).

3.  “No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage.”

4.  “No action shall be maintained to enforce any liability created under section 77k or 77l(a)(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 77l(a)(1) of this title, unless brought within one year after the violation upon which it is based.”

5.  “No claim may be presented under this section . . . unless the claim is presented within 3 years after . . . [t]he date of the discovery of the loss and its connection with the release in question.”
« Last Edit: October 16, 2007 06:02:40 PM by Mod7135 »

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Re: TRW, Inc. v. Andrews, U.S. Sup. Ct., 2001 (Syllabus.)
« Reply #3 on: October 17, 2007 02:25:48 AM »
This is the Appeals Court case which the U.S. Supreme Court ruled on:  "Andrews v. TRW, Inc."

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=9th/9856624v2.html

[The .pdf of this case and its amendments is provided for the convenience of DB users.  The text of this case and its amendments are PUBLIC DOCUMENTS and may be freely cited.  All other elements ©2007 WestLaw.  All Rights Reserved.]
------------------------------------------------------------------------------------------------------------------
U.S. 9th Circuit Court of Appeals
ANDREWS v TRW, INC.

9856624v2

ADELAIDE ANDREWS,                        No. 98-56624
Plaintiff-Appellant,

v.                                                       D.C. No.
                                                   CV-96-07369-LGB
TRW INC.,                                             ORDER AND
Defendant-Appellee.
                                   AMENDED
OPINION

Appeal from the United States District Court
for the Central District of California
Lourdes G. Baird, District Judge, Presiding

Argued and Submitted
April 3, 2000--Pasadena, California

Filed July 17, 2000
Amended October 4, 2000

Before: William C. Canby, Jr., John T. Noonan, and
William A. Fletcher, Circuit Judges.

Opinion by Judge Noonan

_________________________________________________________________

COUNSEL

Carlyle W. Hall, Jr., Andrew R. Henderson, Hall & Hender-
son, LLP, Los Angeles, California, Jilana L. Miller, Laura N.
Diamond, Center for Law in the Public Interest, Los Angeles,
California, Gerald L. Sauer, Sauer and Wagner, LLP, Los
Angeles, California, for the plaintiff-appellant.

Daniel J. McLoon, Kevin R. Lussier, Eugenia L. Castruccio,
Jones, Day, Reavis & Pogue, Los Angeles, California, for the
defendant-appellee.

Michael O'Neil, Esq., Rudnick and Wolfe, Chicago, Il, for the
amicus.

_________________________________________________________________

ORDER

The opinion filed on July 17, 2000 is amended as follows:

Slip op. p.8360,
Under "Proceedings," P 1, strike "S 1681b" and add
"SS 1681b and 1681e(a)."

P. 8361, last sentence, strike "Evan Hendricks " and add
"Dr. Douglas Stott Parker." Last sentence, strike "and" and
add "or the testimony of Evan Hendricks, the Plaintiff's
expert"

P. 8362, under "Analysis," P [1], l.3, replace "1681e(b)"
with "1681e"

P. 8364, P [5], l.4, replace "witness " with "witnesses"

P. 8366, under "Conclusion," l.1, after "first cause of
action" add "and the state law claim"

l.3, strike "and third"

_________________________________________________________________

OPINION

NOONAN, Circuit Judge:

Adelaide Andrews (Andrews) appeals the judgment by the
district court in her suit against TRW, Inc. The case involves
the rights under the Fair Credit Reporting Act, 15 U.S.C.
SS 1681-1681u (1994 & Supp. II) (FCRA), and Cal. Bus. &
Prof. Code S 17200 et. seq. (1996), of a person claiming to be
damaged by the disclosure of inaccurate credit information by
a consumer credit reporting agency such as TRW.

We hold that Andrews's suit was not barred by S 1681p.
We further hold that it was not a question of law but a ques-
tion to be resolved by the jury as to whether TRW had reason
to believe that it was furnishing information in connection
with a consumer transaction involving Andrews. For these
reasons we reverse the partial summary judgments awarded
TRW on the first of Andrews's claims. As to the claims that
did go to trial and ended in judgment against her after trial,
we find no harmful error and affirm.

FACTS

In June 1993, Andrea Andrews (hereafter the Imposter)
obtained the social security number and California driver's
license number of Adelaide Andrews (hereafter the Plaintiff).
The Imposter did so simply by misusing her position as a doc-
tor's receptionist and copying the information that the Plain-
tiff, as a patient in that office, supplied to the doctor.

In 1994-1995 the Imposter applied for credit to four com-
panies subscribing to TRW's credit reports. For example, on
July 25, 1994, to First Consumers National Bank (FCNB), the
Imposter applied as Andrea A. Andrews, 3993-1/2 Harvard
Blvd., Los Angeles, CA, 90062, phone 213-312-0605,
employed at Spensor Robbyns Products, Los Angeles. The
Imposter gave the birth date and social security number of the
Plaintiff.

In this application the only misinformation was the Impos-
ter's use of the Plaintiff's social security number and date of
birth. On October 28, 1994 to Express Department Stores the
Imposter made a comparable credit application, using her own
identity except for the Plaintiff's social security number.
Again, in January 1995, to Commercial Credit the Imposter
applied for credit, using her own identity, except for Plain-
tiff's social security number and a clumsy misspelling of her
first name as "Adeliade."

TRW responded to the credit inquiries of the three compa-
nies by treating the applications as made by the Plaintiff.
TRW furnished the information in its file on the Plaintiff and
added the three inquiries to the Plaintiff's file.

Each of the credit applications applied for by the Imposter
was turned down by the company getting the TRW report. In
addition, the Imposter applied for cable service to a public
utility, Prime Cable of Las Vegas, which was required by law
to provide cable services but nonetheless asked for a TRW
report. The Imposter applied as Andrea Andrews, 4201 S.
Decatur #2202, Las Vegas, NV, 89103, Phone 248-6352. The
Imposter used the social security number of the Plaintiff,
which was the only stolen item of identity provided. This
account became delinquent and was referred to a collection
agency.

The Plaintiff, however, became aware of the Imposter only
on May 31, 1995 when she sought to refinance the mortgage
on her home. The bank from which the financing was sought
received a report from Chase Credit Research, not a party to
this case, whose report combined information from TRW and
two other credit reporting agencies. Now aware of the fraud,
Andrews contacted TRW and requested deletion from her file
of all reference to the Imposter's fraudulent activities. TRW
complied.

PROCEEDINGS

On October 21, 1996, the Plaintiff filed this suit in the dis-
trict court. In her first claim she alleged that TRW had fur-
nished credit reports without "reasonable grounds for
believing" that she was the consumer whom the credit appli-
cations involved, contrary to 15 U.S.C. SS 1681b and
1681e(a), and that as a consequence she had suffered damages
including an expenditure of time and money and "commercial
impairment, inconvenience, embarrassment, humiliation, and
emotional distress including physical manifestations." In her
second claim, she alleged that TRW had violated §1681e by
not maintaining the "reasonable procedures" required by that
statute in order "to assure maximum possible accuracy of the
information concerning the individual about whom the report
relates." 15 U.S.C. §1681e(b). She alleged the same dam-
ages. She asserted that both violations were willful and that
both also violated Cal. Bus. & Prof. Code §17200 et. seq. She
sought actual and punitive damages and an injunction requir-
ing TRW to comply with the Fair Credit Reporting Act by
"requiring a sufficient number of corresponding points of ref-
erence" before disseminating an individual's credit history or
attributing information to an individual's credit file.

On May 28, 1998, the district court granted partial sum-
mary judgment to TRW. The court held that the two year stat-
ute of limitations provided by Ť§1681p began to run at the
time the alleged wrongful disclosures of credit information
were made to the requesting companies. By this test the com-
plaint was too late as to the disclosures made to FCNB and
to Prime Cable. As to the disclosures made to Express and
Commercial, the court ruled that they were made for a pur-
pose permissible under §1681b(a)(3)(A), because the Plain-
tiff, even against her will, was "involved" in the credit
transaction initiated by the Imposter. Any other rule, the court
said, would place "too heavy a burden on credit reporting
agencies." In addition, the court ruled that TRW had used the
"reasonable procedures" required by §1681e(a) to limit dis-
closures to permissible purposes. For these several reasons,
the court granted summary judgment to TRW on the Plain-
tiff's first claim.

The court also struck Plaintiff's claim for punitive damages
on both her first and second causes of action. The court ruled
that the Plaintiff had produced no evidence of TRW's con-
scious disregard of reasonable procedures. In so ruling, the
court did not consider the testimony of Dr. Douglas Stott Par-
ker, the Plaintiff's expert on computers or the testimony of
Evan Hendricks, the Plaintiff's expert on the prevalence of
identity theft.

TRW then moved in limine to bar from testifying at trial
the Plaintiff's witness Douglas Stott Parker, offered as an
expert on the Plaintiff's second claim that TRW's procedures
were not reasonable in assuring maximum possible accuracy.
Relying in part on its earlier rulings, the district court ordered
that Parker not testify as to procedures leading to inaccuracy
in TRW disclosing the Plaintiff's information upon the
Impostor's applications.

The case proceeded to trial on the Plaintiff's second and
third claims. The jury returned a verdict for TRW. The Plain-
tiff appeals the consequent judgment on all her claims.

ANALYSIS

[1] The Statute of Limitations. Liability under the statute
arises when a consumer reporting agency fails to comply with
§1681e. Guimond v. Trans Union Credit Information Co., 45
F.3d 1329 (9th Cir. 1995). The question is presented whether
Andrews's claims are barred as to those alleged failures to
comply which occurred before October 21, 1994. 15 U.S.C.
§1681p reads:

        An action to enforce any liability created under
       this title may be brought in any appropriate United
       States district court without regard to the amount in
       controversy, or in any other court of competent juris-
       diction, within two years from the date on which the
       liability arises, except that where a defendant has
       materially and willfully misrepresented any informa-
       tion required under this subchapter to be disclosed to
       an individual and the information so misrepresented
       is material to the establishment of the defendant's
       liability to that individual under this title, the action
       may be brought at any time within two years after
       discovery by the individual of the misrepresentation.

[2] The general federal rule is that a federal statute of limi-
tations begins to run when a party knows or has reason to
know that she was injured. Norman-Bloodsaw v. Lawrence
Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir. 1998). By this
test none of the Plaintiff's injuries were stale when suit was
brought.

The district court relied on what it saw as the implication
of the statute explicitly referencing a discovery time limit
where a defendant had wilfully misrepresented information
"required to be disclosed to an individual." The creation of
this exception, the court reasoned, implied an exclusion of a
general discovery rule. Accord, Rylewicz v. Beaton Services,
Ltd., 888 F.2d 1175 (7th Cir. 1989); Houghton v. Insurance
Crime Prevention Inst., 795 F.2d 322 (3d Cir. 1986); Clay v.
Equifax, Inc., 762 F.2d 952, 961 (11th Cir. 1985). It is argued,
to the contrary, that neither the language of the statute nor its
interpretation by other respected circuit courts of appeals is a
warrant for disregarding the teaching of the Supreme Court:
unless Congress has expressly legislated otherwise, the equi-
table doctrine of discovery "is read into every federal statute
of limitations." Holmberg v. Armbrecht, 327 U.S. 392, 397
(1946); see also Lampf v. Gilbertson, 501 U.S. 350, 363
(1991). We have followed this approach in interpreting an
analogous statute. See Englerius v. Veterans Admin., 837 F.2d
895, 898 (9th Cir. 1988). We are not persuaded to depart from
the general rule or the analogy. Andrews's claims were not
barred.

[3] Disclosure Without Reasonable Belief. Under §1681b
TRW could only furnish a report on a consumer to a customer
which it had "reason to believe" intended to use the informa-
tion in connection with "a credit transaction involving the
consumer on whom the information is to be furnished. " 15
U.S.C. S 1681b(a)(3). Did TRW have a reasonable belief that
the Plaintiff was the consumer involved in the credit transac-
tions as to which the four companies sought a report from
TRW? As the district court observed, there are 250,000,000
persons in the United States (not all of them having Social
Security numbers) and 1,000,000,000 possibilities as to what
any one Social Security number may be. The random chance
of anyone matching a name to a number is very small. If
TRW could assume that only such chance matching would
occur, it was reasonable as a matter of law in releasing the
Plaintiff's file when an application matched her last name and
the number. But we do not live in a world in which such
matches are made only by chance.

[4] We take judicial notice that in many ways persons are
required to make their social security numbers available so
that they are no longer private or confidential but open to
scrutiny and copying. Not least of these ways is on applica-
tions for credit, as TRW had reason to know. In a world
where names are disseminated with the numbers attached and
dishonest persons exist, the matching of a name to a number
is not a random matter. It is quintessentially a job for a jury
to decide whether identity theft has been common enough for
it to be reasonable for a credit reporting agency to disclose
credit information merely because a last name matches a
social security number on file.

[5] In making that determination the jury would be helped
by expert opinion on the prevalence of identity theft, as the
district court would have been helped if it had given consider-
ation to the Plaintiff's witnesses on this point before giving
summary judgment.

[6] The reasonableness of TRW's responses should also
have been assessed by a jury with reference to the information
TRW had indicating that the Imposter was not the Plaintiff.
TRW argues that people do use nicknames and change
addresses. But how many people misspell their first name?
How many people mistake their date of birth? No rule of law
answers these questions. A jury will have to say how reason-
able a belief is that let a social security number trump all evi-
dence of dissimilarity between the Plaintiff and the Imposter.

The district court held that the Plaintiff was involved in the
transaction because her number was used. The statutory
phrase is "a credit transaction involving the consumer." 15
U.S.C. §1681b(a)(3)(A). "Involve" has two dictionary mean-
ings that are relevant: (1) "to draw in as a participant" or (2)
"to oblige to become associated." The district court under-
stood the word in the second sense. We are reluctant to con-
clude that Congress meant to harness any consumer to any
transaction where any crook chose to use his or her number.
The first meaning of the statutory term must be preferred
here. In that sense the Plaintiff was not involved.

Another consideration for the district court was that a dif-
ferent rule would impose too heavy a cost on TRW. The stat-
ute, however, has already made the determination as to what
is a bearable cost for a credit reporting agency. The cost is
what it takes to have a reasonable belief. In this case that
belief needed determination by a jury not a judge.

[7] We reinstate the Plaintiff's first claim together with her
request for punitive damages based upon it.

[8] Reasonable Procedures To Assure Accuracy. The statu-
tory command is clear: "Whenever a consumer reporting
agency prepares a consumer report it shall follow reasonable
procedures to assure maximum possible accuracy of the infor-
mation concerning the individual about whom the report
relates." 15 U.S.C §1681e(b). It would normally not be easy
for a court as a matter of law to determine whether a given
procedure was reasonable in reaching the very high standard
set by the statute as to each individual reported upon. "The
reasonableness of the procedures and whether the agency fol-
lowed them will be jury questions in the overwhelming
majority of cases." Guimond, 45 F.3d at 1333. The expert tes-
timony to be offered by Dr. Parker on "automated procedures
for connecting and resolving inaccuracies in credit reports"
was germane to a jury determination of this question.

The district court ruled that it was already the law of the
case, as a result of its summary judgment rulings, that it was
permissible for TRW to disclose the Plaintiff's file after an
application by the Imposter. In ruling on what Dr. Parker
could testify to, the district court expanded that ruling to
include the permissibility of TRW disclosing the Imposter's
file when the Plaintiff applied for credit. On the basis of this
expanded position, the district court ruled that Dr. Parker
could not testify as to the availability of computer software
that could have kept the Imposter's data and the Plaintiff's
data from being merged in a TRW report. As we have already
held, it was not a question of law for the court to decide
whether TRW had a reasonable belief permitting disclosure.
The court's legal error infected its ruling on the scope of Dr.
Parker's testimony.

[9] Despite its in limine ruling, the district court permitted
Andrews to examine Dr. Parker on the basis of a TRW report
to Strategic Mortgage Services made on June 5, 1995. This
report attributed to the Plaintiff the Dillard's account opened
by the Imposter. Dr. Parker testified that TRW could have had
in place "an integrity restraint" that would have prevented this
error. He described an integrity restraint as a watchdog that
would have looked for problems or anomalies of the kind that
TRW failed to detect with the result that the Imposter's appli-
cations to FCNB, Express, and Commercial Credit, and her
Prime Cable connection were attributed to the Plaintiff. Dr.
Parker testified that such integrity restraints were available in
the relevant period, 1994-1996. In the light of this testimony
it is difficult to conclude that the Plaintiff was harmed at trial
by the court's initial ruling.

Conclusion: Judgment on Plaintiff's first cause of action
and the state law claim is REVERSED and and the case is
REMANDED for trial. Judgment on Plaintiff's second cause
of action is AFFIRMED. Each party should bear its own
costs.
 

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ADELAIDE ANDREWS,
Plaintiff-Appellant,                                                           No. 98-56624
                                                                                    D.C. No.
v.
                                                                                 CV-96-07369-LGB
TRW INC.,
Defendant-Appellee.
                                                                                 ORDER

On Remand from United States Supreme Court
Filed December 28, 2001

Before: William C. Canby, Jr., John T. Noonan, and
William A. Fletcher, Circuit Judges.
_________________________________________________________________
ORDER

The district court's decision is AFFIRMED. TRW Inc. v.
Andrews, 00-1045 WL 1401902 _______ S.Ct. _______ (November 13,
2001).
17435

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ADELAIDE ANDREWS,
Plaintiff-Appellant                                                                              No. 98-56624

 v.                                                                                                    D.C. No.                                                                                                                                           
                                                                                                    CV-96-07369-LGB
TRW INC.,
Defendant-Appellee.
                                                                                                     ORDER
Filed January 29, 2002

Before: William C. Canby, Jr., John T. Noonan, and
William A. Fletcher, Circuit Judges.
_________________________________________________________________
ORDER

The order filed on December 28, 2001 is modified as follows:

The district court's partial summary judgment that was
granted in favor of TRW Inc. is hereby AFFIRMED as it
related to the two privacy breaches allegedly occurring more
than two years prior to the filing of the instant action, TRW
Inc. v. Andrews, 120 S.Ct. 441 (2001), but is otherwise
REVERSED consistent with this court's order and amended
opinion dated October 4, 2000. The case is REMANDED for
trial.

 

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