FOR EDUCATIONAL USE ONLY 55 USLW 2469
United States Court of Appeals,
Tenth Circuit.
Joseph Zamora, Plaintiff-Appellee,
v.
Valley Federal Savings & Loan Association of Grand Junction, a federally
chartered savings and loan association and a Colorado corporation, Defendant-
Appellant.
No. 86-1316.
Feb. 17, 1987.
PER CURIAM.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance
in the determination of this appeal. See Fed.R.App.P. 34(a);
10th Cir.R. 34.1.8(c) and 27.1.2. The cause is therefore ordered submitted
without oral argument.
This is an appeal from a judgment of the United States District Court for the
District of Colorado upholding a jury verdict of $61,500 actual damages for
violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et
seq. (FCRA). The FCRA provides for damages when a credit report user willfully
and knowingly obtains a credit report under false pretenses for an
impermissible purpose. 15 U.S.C. §§ 1681b, 1681n, and 1681q.
On appeal, defendant argues that the district court erred (1) in ruling that
the FCRA does not permit an employer to obtain a credit report on the spouse of
an employee for "employment purposes"; (2) in relying for its
definition of false pretenses on the permissible purposes listed in 15 U.S.C. § 1681b, to
the exclusion of the willful and knowing requirement; and (3) in denying
defendant's motion for a new trial or remittitur because the damages were
clearly excessive and punitive in nature. We affirm.
Plaintiff's wife was employed by defendant as a loan officer. When she married
the plaintiff, the defendant, through one of its vice-presidents, William P.
Inscho, Jr., obtained a credit report on plaintiff from the Mesa County Credit
Bureau (credit bureau). Inscho represented to the credit bureau that the report
was to be used for "employment purposes." At the time the report was
requested, plaintiff's wife was being considered for a branch manager position.
The credit report indicated, among other things, an unpaid telephone bill,
which plaintiff disputed. Because defendant's request for the credit report
started an effort to collect the telephone bill, plaintiff learned of the request,
plaintiff's wife confronted Inscho, and Inscho admitted requesting the credit
report. Plaintiff then filed this action, claiming that defendant knowingly and
willfully obtained a credit report on plaintiff under false pretenses for
"employment purposes" in violation of the FCRA. The district court
granted plaintiff's motion for partial summary judgment and ruled that a credit
report cannot be obtained on the spouse of an employee for "employment
purposes."
The issue of whether defendant willfully and knowingly obtained the credit
report on plaintiff under false pretenses was presented to the jury. The jury
found for *1370 plaintiff and awarded actual damages of $61,500.
Defendant filed a motion for new trial or remittitur. The district court denied
the motion and subsequently entered its final judgment. Defendant appealed.
I
Defendant first maintains that the
FCRA permits an employer to obtain a credit report on a spouse of an employee
being considered for a security- sensitive position, so long as the intended
purpose and actual use of the report is to evaluate the employee's
trustworthiness for the position. We disagree.
15 U.S.C. § 1681b sets
forth an exclusive list of permissible purposes for which a consumer credit
report may be obtained. Section 1681b(3)(B)
permits a consumer reporting agency to furnish a consumer report for
"employment purposes." "The term 'employment purposes' when used
in connection with a consumer report means a report used for the purpose of
evaluating a consumer for employment, promotion, reassignment or retention as
an employee." 15 U.S.C. § 1681a(h).
The FCRA defines a consumer as "an individual." Id. § 1681a(c).
Nothing in the FCRA indicates that a consumer credit report for
"employment purposes" may be obtained on any person other than the
actual individual whose employment is being considered. By enacting the FCRA,
Congress intended to prevent invasions of consumers' privacy. See 15 U.S.C. § 1681; Hansen v. Morgan, 582 F.2d 1214, 1220 (9th Cir.1978); In re TRW, Inc., 460 F.Supp. 1007, 1009 (E.D.Mich.1978).
Permitting a user of consumer reports to obtain information on a spouse for
"employment purposes" would violate the right to privacy Congress
intended to protect.
II
Defendant argues that the district
court erred in its definition of false pretenses by relying on the permissible
purposes for obtaining a consumer report listed in § 1681b, to the exclusion
of the willful and knowing requirement. We disagree. The district court
properly defined false pretenses, and there is ample evidence in the record
from which the jury could conclude that defendant knew a request for spousal
information was not permissible.
15 U.S.C. § 1681q imposes
criminal liability upon any person who knowingly and willfully obtains
information on a consumer from a consumer reporting agency under false
pretenses. 15 U.S.C. § 1681n
provides a private cause of action against any person who willfully fails to
comply with any "requirement" of the FCRA. Violation of § 1681q provides a
basis for civil suit pursuant to § 1681n. Hansen v. Morgan, 582 F.2d at 1219; Kennedy v. Border City Savings
& Loan Ass'n, 747 F.2d 367, 369
(6th Cir.1984); cf. Heath v. Credit Bureau of
Sheridan, Inc., 618 F.2d
693, 697 (10th Cir.1980) (deferring consideration of this
issue).
Whether a consumer report has been
obtained under false pretenses will ordinarily be determined by reference to
the permissible purposes for which consumer reports may be obtained, as enumerated
in § 1681b. Hansen, 582 F.2d at 1219; Boothe v. TRW Credit Data, 557 F.Supp. 66, 71 (S.D.N.Y.1982). A
consumer reporting agency may only issue a report for the purposes listed in § 1681b. Hansen, 582 F.2d at 1219. Accordingly, if a user
requests information for a purpose not permitted by § 1681b while
representing to the reporting agency that the report will be used for a
permissible purpose, the user may be subject to civil liability for obtaining
information under false pretenses. Id. at 1219-20.
In this case defendant's vice president, William P. Inscho, Jr., informed the
credit agency it sought information on plaintiff for "employment
purposes." A credit bureau employee testified that he would not have
provided defendant the credit report had he known defendant's actual purpose
for seeking the report. But defendant appears to further contend that civil
liability should not be imposed, because defendant *1371 did not
knowingly and willfully seek information not permitted under the FRCA. This
contention must also fail. The testimony at trial indicated that both Inscho,
Jr. and another vice- president of the bank, William P. Inscho, Sr., knew the
permissible purposes for obtaining consumer reports. Both are vice-presidents
of defendant, a savings and loan which does frequent consumer checks and which
has a compliance officer, an in-house attorney, to ensure compliance with
federal statutes, such as the FCRA. Previously Inscho, Sr. had owned and
Inscho, Jr. had worked at the credit bureau. Inscho, Jr. trained employees on
making credit report requests at one of defendant's branches. The credit bureau
employee testified that all credit bureau employees knew they could not access
the records of a spouse when checking the credit of an individual. Plaintiff's
wife, who was one of defendant's loan officers, testified that a credit report
could not be obtained on a spouse if the spouse was not listed on the loan
application. She testified that Inscho, Sr. admitted to her that the request
was a mistake and attempted to rectify the mistake by offering her a bottle of
wine.
From this evidence the jury could reasonably find that defendant knowingly and willfully obtained the consumer report under false pretenses. Because the jury's findings are not clearly erroneous, the findings are conclusively binding on appeal. See United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150 (1949); Schultz v. Rice, 809 F.2d 643 (10th Cir.1986).
III
Finally, defendant argues that the district court erred in
denying its motion for a new trial or remittitur, because the award of $61,500
damages was excessive and punitive. We conclude that the jury's award of
damages should be upheld. "[A]bsent an award so excessive as to shock the
judicial conscience and to raise an irresistible inference that passion,
prejudice, corruption or other improper cause invaded the trial, the jury's
determination of the damages is considered inviolate." Malandris v. Merrill Lynch,
Pierce, Fenner & Smith Inc., 703
F.2d 1152, 1168 (10th Cir.1981), cert. denied, 464 U.S. 824, 104 S.Ct. 92, 78
L.Ed.2d 99 (1983); accord Metcalfe v. Atchison, Topeka and
Santa Fe Railway Co.,
491 F.2d 892, 898 (10th Cir.1974). Upon examination of the
record on appeal, we do not believe that the award of damages in the instant
case was so excessive that remittitur or a new trial is required. Plaintiff testified
that the credit report incident is a continuing cause of emotional distress,
and that the improper request for the report caused serious and continuing
problems in his marriage, due to his initial misunderstanding about his wife's
role in the request, his wife's resignation from defendant and subsequent
unsatisfactory employment, and separations occasioned by his wife's seeking
employment elsewhere. We conclude the district court did not err by refusing to
order a new trial or remittitur.
AFFIRMED.