Access to Justice

Merck v. Walmart

In Merck v. Walmart, the Sixth Circuit is considering whether employees and job applicants deprived of their right to notice and an opportunity to be heard before being subjected to an adverse action on the basis of a consumer report have standing to assert their claims under the Fair Credit Reporting Act in federal court.

Case Summary

When Thomas Merck applied for an entry-level job at Walmart, the interviewer told him he was a shoo-in. But when a fifteen-year-old misdemeanor that Merck had forgotten to disclose showed up on a consumer report Walmart ordered, the company revoked his job offer on the basis of the nondisclosure. It did so without giving him notice and an opportunity to be heard prior to the revocation, as an important provision of the Fair Credit Reporting Act (FCRA) requires.

Merck filed suit in federal district court, but the court threw out his case. According to the district court, “violation of the FCRA’s pre-adverse action notice requirements does not result in concrete harm unless the consumer report was inaccurate or the statutory violation was a but-for cause of the adverse employment action.” Because Merck could not make either of these showings, the court held that he lacked a “concrete” injury necessary for standing under Article III of the Constitution.

Merck appealed his case to the Sixth Circuit Court of Appeals, and CAC filed an amicus brief supporting Merck’s right to seek his day in court. CAC’s brief makes three main arguments.

First, we explain that under binding Supreme Court precedent, including the Court’s recent decision in TransUnion LLC v. Ramirez, injuries are “concrete” within the meaning of Article III’s “Cases” or “Controversies” requirement if they have “a close relationship to harms traditionally recognized as providing a basis for lawsuit in American courts.” “Those traditional harms,” the TransUnion Court explained, may “include harms specified by the Constitution itself.” After all, constitutional harms have always been viewed as capable of resolution through the judicial process, the heart of the standing inquiry. Indeed, a chief reason for the codification of a bill of rights was to empower courts to protect against constitutional harms, as James Madison explained when he introduced the Bill of Rights in Congress in 1789.

Second, because constitutional harms are concrete and subject to judicial resolution, under TransUnion, Congress may elevate injuries that closely resemble constitutional harms to the status of legally cognizable. That is precisely what Congress did when it passed the provision of the FCRA at issue in this case: it elevated to the status of legally cognizable an injury that closely resembles the harm that arises out of the violation of the constitutional right to procedural due process—that is, the injury one suffers when denied pre-deprivation notice and an opportunity to be heard when something as important as one’s livelihood is on the line. While many other statutes create procedural protections for consumers, few bear the hallmarks of the Constitution’s procedural due process requirements to the same extent as this provision of the FCRA.  In particular, the statute’s mandate that notice be provided prior to an adverse action sets it apart from other statutory protections, making it uniquely akin to pre-deprivation due process, as other courts of appeals have recognized.

Finally, the Supreme Court has made clear that when a plaintiff is injured by a statutory violation that closely resembles a traditional harm, the contours of that traditional harm should guide analysis of the plaintiff’s injury. In this case, that means that procedural due process precedents shed light on the nature of Merck’s injury. And critically, for a plaintiff to suffer a concrete injury within the meaning of the Constitution’s Due Process Clauses, the Supreme Court does not require a demonstration of success on the plaintiff’s substantive claim. A procedural due process plaintiff is injured whenever he or she suffers the deprivation of a protected interest through a constitutionally insufficient process. Thus, for purposes of assessing Merck’s standing, it does not matter that he concedes that the information in the consumer report was factually correct. It does not matter that Walmart claims it would not have hired Merck even if he had explained that his failure to disclose the misdemeanor was an “honest mistake.” What matters is that Walmart revoked Merck’s job offer without affording him notice and a hearing—that is, the opportunity to explain the contents of the consumer report to his employer to which he was entitled under the FCRA. That was a concrete injury just as it would have been in the analogous procedural due process context.

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