[00:00:06] Speaker 00:
Case number 19-5321, owner, operator, Independent Drivers Association Inc.

[00:00:12] Speaker 00:
et al.

[00:00:12] Speaker 00:
balance versus United States Department of Transportation et al.

[00:00:17] Speaker 00:
Mr. Stinson for the balance, Ms.

[00:00:19] Speaker 00:
Lopez for the police.

[00:00:27] Speaker 04:
Good morning, Mr. Stinson.

[00:00:31] Speaker 04:
We'll hear from you.

[00:00:37] Speaker 05:
Good morning.

[00:00:39] Speaker 05:
May it please the court.

[00:00:40] Speaker 05:
My name is Charles Stinson, and I represent Plants Appellants Clint Mauer and Fred Weber Jr.

[00:00:45] Speaker 05:
I'd like to reserve two minutes for rebut.

[00:00:48] Speaker 05:
The issue facing this court on this appeal is a straightforward one.

[00:00:52] Speaker 05:
Can commercial truck drivers, like Mr. Mauer and Mr. Weber, hold FMCSA and the other defendants accountable under the Fair Court Reporting Act,

[00:01:00] Speaker 05:
when the defendants distribute inaccurate and damaging personal information about these drivers to these drivers potential employers through the pre-employment screening program or PSP.

[00:01:13] Speaker 05:
Congress has answered this question in at least two ways.

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Congress specifically intended that FMCSA's driver reporting under the PSP be held to account under the FCRA, and Congress generally intended that federal agencies, when they do the type of reporting covered by the Fair Court Reporting Act, be subject to that statute, as is the case in PSP.

[00:01:36] Speaker 04:
Can I just be clear on the claim that is before us?

[00:01:42] Speaker 04:
It's a claim that is brought under the Fair Credit Reporting Act.

[00:01:48] Speaker 04:
Yes, Judge Wilkins, that is correct.

[00:01:50] Speaker 04:
So the cause of action is based on the FCRA, or the cause of action is contained, is created by the FCRA.

[00:02:01] Speaker 04:
Yes, Your Honor.

[00:02:03] Speaker 04:
And it's a cause of action for damages at this point, right?

[00:02:07] Speaker 05:
Yes, correct.

[00:02:08] Speaker 05:
In the previous appeal, the other cause, other

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equitable injunctive declaratory relief or removal from the case.

[00:02:15] Speaker 04:
So why isn't the first question we have to determine, because it's a subject matter jurisdictional question, whether Congress waived sovereign immunity under the FCRA for damages claims?

[00:02:35] Speaker 04:
Why isn't that the first thing we have to do?

[00:02:39] Speaker 05:
Right, Your Honor.

[00:02:40] Speaker 05:
Well, the district court did not address the defendant's immunity on this appeal, although in the first proceeding, the district court did note that under the FCRA, the Congress waived the defendant's sovereign immunity.

[00:02:56] Speaker 05:
And it followed the 730th decision in Borms, both sides of the decision, and it followed the analysis in Borms.

[00:03:03] Speaker 05:
The district court on this time around decided not to address the immunity issue

[00:03:09] Speaker 05:
although you're of course correct that this case could be decided on the immunity issue.

[00:03:16] Speaker 05:
And that question is- You need to win on both, right?

[00:03:20] Speaker 05:
Right, yes.

[00:03:22] Speaker 05:
The two questions are closely related as to whether defendants qualify as FCRA persons and FCRA consumer reporting agencies.

[00:03:33] Speaker 05:
The current version of the statute

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imposes liability on any persons who violate the statute.

[00:03:40] Speaker 05:
The pre-1996 version of statute imposed liability on consumer reporting agencies who violated the statute.

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But as the definition of consumer reporting agencies is key to the definition of person, really the definition of person is what controls

[00:03:57] Speaker 05:
at least what guides support in whether immunity has been waived.

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And in this case, as the Seventh Circuit found forms, the language that Congress used is clear.

[00:04:09] Speaker 05:
Section 15 U.S.C., Section 1691A, Subsection B,

[00:04:15] Speaker 05:
includes government and government entities in its definition of persons and it includes no reservation of the federal government or otherwise limits the statute to our definition to state and local governments.

[00:04:30] Speaker 03:
Is the federal government a person as that word is used in the section subjecting persons to criminal liability?

[00:04:43] Speaker 05:
I think that is an argument the defendant's made.

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It's an argument relied upon in the Ninth Circuit in Daniel that would lead to that result.

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But I think if you read that statute in context, it's 1691 Q, I believe.

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that imposes criminal liability for persons who obtain consumer reports under false pretenses.

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And that's a very limited criminal liability section.

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And it's unclear that the federal government and not an erstwhile agency employee could ever violate that statute.

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And so whether,

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whether the criminal liabilities, I don't think stops the government from being a person in the other provisions of the statute.

[00:05:43] Speaker 03:
So sorry, was that a yes or a no?

[00:05:49] Speaker 05:
I don't believe that the federal government or any government would be a person under that provision of the statute.

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Employees could be.

[00:05:58] Speaker 03:
So if that's true, don't we need more reasoning

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on the sovereign immunity waiver than just the syllogism.

[00:06:11] Speaker 03:
Here's the definition of person.

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It covers the federal government.

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Persons are exposed to civil damages liability, QED.

[00:06:25] Speaker 05:
Yes, Judge Katz.

[00:06:26] Speaker 05:
I think if you look at

[00:06:31] Speaker 05:
not only is person defining to include governments, but the PSP statute itself, 49 USC 31150, which incorporate, if there's any ambiguity in the definition of person in 1691 A subsection B, then the PSP statute would subject

[00:06:56] Speaker 05:
defendant's PSP reporting to the FCRA.

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If you read the two statutes together, then it's clear that Congress intended that when the federal government does a specific type of consumer reporting covered by the statute, then it is a person that's liable under the statute and subject to the statute's strictures and other procedures.

[00:07:20] Speaker 04:
But can't Congress say,

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that the government should comply with certain procedures that are set forth in this statute and at the same time decide that we're not going to waive sovereign immunity so that you can sue the government for damages

[00:07:43] Speaker 04:
If they don't comply with the statute, you might be able to get injunctive or declaratory relief pursuant to the waiver of sovereign immunity in the APA, but we're not going to subject the government for damages.

[00:08:00] Speaker 04:
Can't Congress make that sort of a determination when they say,

[00:08:07] Speaker 04:
that the government will be bound by a statute?

[00:08:10] Speaker 05:
Right.

[00:08:11] Speaker 05:
Judge Wilkins, yes, I suspect that the government can do that, but the government did not do that here.

[00:08:17] Speaker 05:
In other statutes where Congress has defined the scope of persons potentially liable under the statute to include governments, they have withheld certain kinds of liability from the federal government.

[00:08:34] Speaker 05:
They didn't do so here.

[00:08:35] Speaker 05:
The Equal Credit Opportunity Act, which is another financial remedial chapter of Title 15,

[00:08:41] Speaker 05:
the government, Congress specifically reserved certain kinds of liability from the government in its liability provisions.

[00:08:51] Speaker 02:
Mr. Stetson, I want to go back to a question that you were asked by Judge Wilkins, and that is whether we have to decide sovereign immunity before we get to the merits.

[00:09:09] Speaker 05:
I don't know that you have to.

[00:09:11] Speaker 05:
I think the questions are interrelated.

[00:09:13] Speaker 02:
Well, there's a case that the law, the circuit is from NRA's sealed case in 1999 and it said, I'm going to read it to you.

[00:09:24] Speaker 02:
It just said, or hybrid status of federal sovereign immunity.

[00:09:31] Speaker 02:
We are not required to decide that issue before the merits.

[00:09:36] Speaker 05:
I'm sorry, Judge Randolph, you cut out at the beginning.

[00:09:39] Speaker 02:
I didn't hear the beginning of the quote.

[00:09:40] Speaker 02:
Well, there's precedent in this circuit saying we don't have to decide sovereign immunity before deciding the merits.

[00:09:46] Speaker 02:
Right.

[00:09:47] Speaker 02:
And so I think- It supports your position, but you didn't cite the case.

[00:09:51] Speaker 05:
Right.

[00:09:51] Speaker 05:
I think you certainly could, but you're not required to.

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And as I said in this question, in this instance, the two issues are interrelated as they're both determined by the scope of consumer reporting

[00:10:08] Speaker 05:
And I'd just like to touch briefly on the district courts, the crux of the district court's decision, which was that defendants do not assemble driver information for the purposes of including that information in reports to third parties and

[00:10:30] Speaker 05:
This is the requirement for a consumer reporting agency under 1691A subsection F. In PSP, defendants extract three categories of data from their overall MCMIS motor carrier database.

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They extract those three categories of data and they assemble them into a report.

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The express and exclusive purpose of that assembly into a PSP report is to provide those reports to third parties

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potential employers who are making FCRA decisions, in this case, hiring status.

[00:11:05] Speaker 05:
If there are no further questions, I see that I'm out of time and I'll observe the remainder for rebuttal.

[00:11:10] Speaker 04:
All right.

[00:11:10] Speaker 04:
Thank you.

[00:11:11] Speaker 04:
We'll give you some time on rebuttal.

[00:11:14] Speaker 04:
Thank you.

[00:11:15] Speaker 04:
Ms.

[00:11:15] Speaker 04:
Lopez, good morning.

[00:11:16] Speaker 01:
Good morning.

[00:11:17] Speaker 01:
May it please the court?

[00:11:18] Speaker 01:
Carolyn Lopez on behalf of the government.

[00:11:21] Speaker 01:
Here, as your honors have pointed out, for plaintiffs to prevail, they would have to show both that the agency is somehow transformed into a consumer reporting agency when it's carrying out legislative directives intended for safety purposes, and that the United States has waived its sovereign immunity with respect to damages.

[00:11:40] Speaker 01:
And it can do neither.

[00:11:42] Speaker 03:
Sovereign immunity first.

[00:11:44] Speaker 01:
No, Your Honor, if Your Honors believe, as the government argues, that the agency simply isn't a consumer reporting agency that's governed under the Fair Credit Reporting Act, the question of whether damages would apply if those provisions in fact apply to the government need not be answered here today.

[00:12:01] Speaker 03:
Well, I'll check the case Judge Randolph cited later, but I thought sovereign immunity went to subject matter jurisdiction.

[00:12:10] Speaker 02:
I'll give you the citation.

[00:12:11] Speaker 02:
It's 192 Fed 3rd at page 1000.

[00:12:15] Speaker 02:
Thanks.

[00:12:18] Speaker 01:
In any event, I'm happy to address either the Consumer Reporting Agency language or the damages provisions first, as your honors prefer.

[00:12:28] Speaker 01:
The United States certainly, it's a bedrock principle on waivers of sovereign immunity with respect to damages that they have to be clear and unequivocal.

[00:12:38] Speaker 01:
There's no clear and unequivocal language in the FICRA subjecting the government to liability here.

[00:12:47] Speaker 03:
Let's talk about that.

[00:12:48] Speaker 03:
Do you agree that the definitional clause is clear and unambiguous in extending to the federal government?

[00:12:58] Speaker 03:
when it says person means any individual corporation, et cetera, or government?

[00:13:07] Speaker 01:
Yes, Your Honor.

[00:13:08] Speaker 01:
It does include governments within.

[00:13:12] Speaker 01:
So including state governments, federal governments, foreign governments.

[00:13:15] Speaker 03:
Yes, Your Honor.

[00:13:17] Speaker 03:
And then it would seem to be equally clear

[00:13:21] Speaker 03:
from both text and structure, those words appear in a definitional provision that is expressly said to define what that word means across the entire statute.

[00:13:39] Speaker 01:
No, Your Honor, for two reasons.

[00:13:40] Speaker 01:
One based on a Supreme Court case and one based, as Your Honors were discussing earlier,

[00:13:47] Speaker 01:
as discussed in the Ninth Circuit's decision in Daniel and the Fourth Circuit's discussion in Robinson based on the text of this particular statute.

[00:13:54] Speaker 01:
So starting with that Supreme Court case, in the employees case, which is 411 U.S.

[00:13:59] Speaker 01:
279 at pages 282 to 285, the Supreme Court explains that, for example, and there we're talking about the Fair Labor Standards Act,

[00:14:10] Speaker 01:
where state governments were included in the definition of employer and there was a separate liability provision for employers.

[00:14:20] Speaker 01:
When there's congressional silence as to whether or not that definitional provision was intended to waive state sovereign immunity with respect to liability, Congress shouldn't find that waiver there.

[00:14:31] Speaker 01:
The same principle applies here.

[00:14:33] Speaker 03:
Is that case in your brief?

[00:14:37] Speaker 01:
don't believe it's in the brief.

[00:14:39] Speaker 01:
I just wanted to provide sort of context as to sort of how we were analyzing this.

[00:14:43] Speaker 01:
And then- 411 U.S.

[00:14:45] Speaker 03:
at 282?

[00:14:48] Speaker 01:
Through 285, yes, Your Honor.

[00:14:50] Speaker 03:
Okay, I'll check that too.

[00:14:52] Speaker 03:
Just starting with text.

[00:14:56] Speaker 01:
Yes, Your Honor.

[00:14:56] Speaker 03:
The information says, for the purposes of this subchapter, and this subchapter means all of FICRA, right?

[00:15:08] Speaker 01:
Your Honor, I think what's helpful here is to take a step back and look at the way that the 1970 version of the statute as enacted, how all of those provisions work together.

[00:15:20] Speaker 03:
I'll let you do that in a second.

[00:15:22] Speaker 03:
But before we get to structure and drafting history, let's just talk about text.

[00:15:28] Speaker 03:
And text seems awfully clear.

[00:15:31] Speaker 01:
No, Your Honor, I disagree.

[00:15:33] Speaker 01:
As the 9th Circuit emphasized in Daniel and the 4th Circuit emphasized in Robinson, if one were to read a person across the entire text to mean

[00:15:52] Speaker 01:
To mean both state and federal governments across everything.

[00:15:56] Speaker 01:
It would lead to absurd results.

[00:15:58] Speaker 01:
And so that's both the criminal that's both the criminal provision that your honor raised earlier.

[00:16:03] Speaker 01:
But also it's actually if one were to look at this consumer reporting agency provision in the original text.

[00:16:09] Speaker 01:
If by the mere inclusion of governments and Parsons states, for example,

[00:16:15] Speaker 01:
could be included in consumer reporting agencies, that itself would be unconstitutional because it was enacted under the Commerce Clause and private suits for damages cannot be enacted against the states pursuant to Congress's Commerce Clause powers.

[00:16:32] Speaker 01:
Yep.

[00:16:33] Speaker 01:
So yes, Ron.

[00:16:34] Speaker 01:
And so that's the seminal tribe decision.

[00:16:37] Speaker 03:
So the abrogation is unconstitutional as applied to states.

[00:16:42] Speaker 03:
So what?

[00:16:43] Speaker 03:
The statute covers states and it's unconstitutional as applied.

[00:16:47] Speaker 01:
It's yet another reason along with the fact that the, along with the fact that the criminal, the application of the criminal statute.

[00:16:57] Speaker 03:
The criminal one, that's a good point in your favor, but

[00:17:03] Speaker 03:
I mean, it's really an argument that, to me anyway, it sounds like an argument that absurd consequences Trump text.

[00:17:11] Speaker 01:
No, Your Honor.

[00:17:12] Speaker 01:
And I think if I might, with your indulgence, just talk about how it made sense for Congress to include persons and why it would have done so in the original text without actually imposing liability.

[00:17:22] Speaker 01:
And again, it has to be clear and unequivocal.

[00:17:26] Speaker 01:
If there's a plausible reading of the statute that doesn't impose liability, then liability should not be imposed.

[00:17:32] Speaker 01:
And here, if one looks at the original statute altogether, so that's at 84 Stat 1127, there are a number of provisions.

[00:17:41] Speaker 01:
So for example, Section 607 and Section 604 that regulate consumer reporting agencies and the permissible uses for which they can provide information to persons.

[00:17:53] Speaker 01:
And there, it's quite clear that they still have to follow those rules when the person to whom they are disclosing includes governmental agencies.

[00:18:02] Speaker 01:
So for example, 604D applies to when governments are making beneficiary decisions.

[00:18:09] Speaker 01:
It's only a government that would do that.

[00:18:11] Speaker 01:
And that's underscored by the original section 608, which creates a limited carve out for additional disclosures to federal agencies by those consumer reporting agencies.

[00:18:22] Speaker 01:
in certain circumstances.

[00:18:24] Speaker 01:
And so it made sense for Congress.

[00:18:26] Speaker 01:
There's certainly a plausible reading of the 1970 act that doesn't just depend on the absurd results for why it would have been included in the definitional section for those purposes, but not actually with respect to the liability provision.

[00:18:40] Speaker 01:
I would also like to just talk about why the agency doesn't come within the definition of a consumer reporting agency in the first place.

[00:18:50] Speaker 01:
if there aren't further questions on the damages at this time.

[00:18:55] Speaker 01:
As the district court correctly concluded, when Congress mandated that the agency give motor carriers electronic access to previously assembled driver safety reports from the agency's central database as an alternative to FOIA requests,

[00:19:11] Speaker 01:
And to promote the public safety.

[00:19:14] Speaker 01:
Congress did not implicitly transformed that federal agency into consumer reporting agencies for purposes of the Fair Credit Reporting Act.

[00:19:23] Speaker 01:
And I think here, it's really important to understand how this all works together.

[00:19:26] Speaker 01:
And this is something that just report went through.

[00:19:29] Speaker 01:
So it happened in a series of sort of congressional enactments first Congress.

[00:19:34] Speaker 01:
mandated that the agency collect and compile driver safety information from crashes and inspections at the roadside, and that it could do so for a variety of safety purposes, including rulemaking and enforcement actions.

[00:19:47] Speaker 01:
And at that time, motor carriers were able to get that information through FOIA requests with driver consent.

[00:19:54] Speaker 01:
Subsequently, Congress said at Section 31150A and C,

[00:20:01] Speaker 01:
that the agency was to provide electronic access to the reports from that same central database.

[00:20:09] Speaker 01:
So no new assembly, it has to be an exact match or snapshot as the district court recognized.

[00:20:15] Speaker 01:
And the purpose there too was to promote safety and that's in fact borne out as the agency has emphasized with employers who are regularly using these reports, seeing a decrease in crashes of 8%

[00:20:29] Speaker 01:
and a decrease in driver out of service orders, which only apply where the driver either.

[00:20:35] Speaker 04:
But it seems to me that B1 says that the agency is to ensure that any information that is released to such person will be in accordance with the Fair Credit Reporting Act.

[00:20:55] Speaker 04:
You don't get much more explicit than that.

[00:20:59] Speaker 04:
What does will be in accordance with the Fair Credit Reporting Act mean?

[00:21:04] Speaker 01:
Absolutely, Your Honor.

[00:21:04] Speaker 01:
So two points there.

[00:21:05] Speaker 01:
First, it actually underscores that the agency, by the terms of the Fair Credit Reporting Act itself, which is the cause of action sought here,

[00:21:15] Speaker 01:
is not already directly regulated as a consumer reporting agency under that statute because otherwise that would just be surplusage.

[00:21:25] Speaker 01:
Second, when read in context with the rest of section 31150B, which can be found at addendum page one, what it actually appears to be referring to is not any new, certainly no clear and unequivocal waiver with respect to damages.

[00:21:42] Speaker 01:
There's no mention of damages there at all.

[00:21:44] Speaker 01:
But rather, when you read the language together with the other parts of that provision, so B2 instructs the agency to ensure that the program requires driver consent, B4 instructs the agency to create a procedure for correction, what it's doing is making sure that

[00:22:03] Speaker 01:
When a motor carrier either collects information.

[00:22:07] Speaker 04:
But the problem with that argument is that Congress said those two things.

[00:22:11] Speaker 04:
It didn't need to say will be in accordance with the Fair Credit Reporting Act.

[00:22:15] Speaker 04:
They could have just said, you know, make sure that you get consent and that you have a correction procedure.

[00:22:21] Speaker 04:
As part of this program.

[00:22:25] Speaker 04:
I mean, they didn't need to say, we'll be in accordance with the Fair Credit Reporting Act if that's all they intended to do.

[00:22:32] Speaker 01:
So yes, Your Honor, I think actually it's one thing that's helpful to note here is that there are parallel provisions in the Fair Credit Reporting Act that specifically apply to motor carrier employers and what they have to do when they get similar information directly from a consumer reporting agency instead of from the agency.

[00:22:53] Speaker 01:
And so those can be found at 15 USC 1681 B, parenz B, parenz 2, and parenz 3.

[00:23:05] Speaker 04:
And there, those regulations- Did you point that out in your brief?

[00:23:08] Speaker 04:
Because I don't remember seeing it.

[00:23:09] Speaker 01:
No, Your Honor, it's not in your brief.

[00:23:10] Speaker 01:
But in response to your question, what we did say in our brief is that what that was intended to do is to really enforce, is to really ensure that the agency

[00:23:21] Speaker 01:
was operating in parallel to the spirit of the FICRA and the Privacy Act, and particularly concerned with consent as emphasized in the conference report at 109-203, page 991.

[00:23:35] Speaker 02:
May I interrupt you before you run out of time?

[00:23:40] Speaker 02:
You're saying that DOT is not a consumer reporting agency.

[00:23:44] Speaker 02:
You don't mean to agree, do you, that these accident, commercial accident and inspection reports are consumer reports?

[00:23:53] Speaker 01:
No.

[00:23:54] Speaker 01:
No, Your Honor, they're not.

[00:23:54] Speaker 01:
Consumer reports are issued, definitely are provided by consumer reporting agencies.

[00:23:59] Speaker 01:
And so that's why what Congress instructs the agency to do is to create parallel provisions requiring driver consent

[00:24:07] Speaker 01:
and giving them the authority to set up their own procedure.

[00:24:11] Speaker 01:
If they were already regulated as consumer reporting agencies because they were providing consumer reports, then there would be no need to instruct the agency to create its own procedure because the FICRA contains a comprehensive procedure for corrections.

[00:24:27] Speaker 01:
And so it's really reading all of those things in harmony that gives meaning to every provision of Section 31150B read together and aligns with Congress's purpose in enacting this statute.

[00:24:40] Speaker 01:
And I did just want to emphasize that, you know, every court, there's good reason that every court and the FTC in the 50 years since the FICRA has been enacted has rejected attempts to make federal agencies or state agencies

[00:24:54] Speaker 01:
acting pursuant to legislative safety directives into consumer reporting agencies under the FICRA.

[00:25:00] Speaker 01:
I see I've gone well over my time.

[00:25:02] Speaker 01:
If there are no further questions, we respectfully ask that the court affirm.

[00:25:08] Speaker 04:
Any further questions, Judge Katz, Judge Randolph?

[00:25:11] Speaker 04:
No.

[00:25:12] Speaker 04:
All right.

[00:25:12] Speaker 04:
Mr. Stinson, we'll give you two minutes for rebuttal.

[00:25:15] Speaker 04:
I'm listening.

[00:25:16] Speaker 04:
I just have to step away for a second.

[00:25:19] Speaker 05:
Thank you, Your Honor.

[00:25:20] Speaker 05:
I just have a couple of brief points to address Judge Randolph's question there towards the end.

[00:25:26] Speaker 05:
These PSP reports certainly could be consumer reports.

[00:25:30] Speaker 05:
They're personal information that's distributed for the purposes of making a hiring decision, which is a decision covered by the FCRA.

[00:25:38] Speaker 05:
So they could be consumer reports.

[00:25:42] Speaker 05:
Secondly, I want to say that while the cases that defense counsel refers to have not found that the federal government is a consumer reporting agency, the

[00:25:55] Speaker 05:
Those cases do not involve an instance where Congress specifically directed an agency to do consumer reporting.

[00:26:02] Speaker 05:
Here, Congress directed FMCSA to do the consumer reporting covered by the statute, and FMCSA did that.

[00:26:13] Speaker 05:
They created a system whereby driver information is assembled into a single report that is provided to potential employers who are making hiring decisions.

[00:26:25] Speaker 02:
What does an accident report have to do with credit worthiness or credit standing or financial wherewithal?

[00:26:35] Speaker 05:
Judge ran off nothing, but the FCRA is not limited to those purposes.

[00:26:39] Speaker 02:
What about an inspection?

[00:26:41] Speaker 02:
What has that got to do with it?

[00:26:42] Speaker 02:
I mean, one of your clients had, there was some kind of latch that had too much play in it.

[00:26:50] Speaker 02:
That didn't have anything to do with whether he was worthy of the extension of credit.

[00:26:58] Speaker 05:
Yes, of course, that's correct.

[00:27:00] Speaker 05:
But the FCRA applies to information regarding a person's character, their mode of living.

[00:27:08] Speaker 02:
The character, it all relates back to credit worthiness.

[00:27:15] Speaker 02:
I mean, you could say that you don't want to extend credit to somebody that has been convicted of 10 felonies over their life.

[00:27:24] Speaker 05:
Right, Your Honor, but the Fair Credit Reporting Act, its definition of consumer report expands well beyond what would be considered traditional credit reporting to include information used in making employment decisions, and that is specifically what PSQ reports are by design.

[00:27:44] Speaker 05:
Section 31150, subsection C,

[00:27:48] Speaker 02:
expressly provides that these are reports to be used to make hiring decisions and only you don't want to hire you know an employer would not want to hire a deadbeat right I mean that's what that means

[00:28:04] Speaker 05:
I think there has not been a dispute in this case that the type of information that's contained on PSP reports is not the type of information covered by consumer reporting agencies, notwithstanding, excuse me, covered by the definition of consumer reports, notwithstanding defendants' argument that they're not consumer reporting agencies, so therefore they can't produce consumer reports.

[00:28:27] Speaker 05:
But Congress here, we're not asking to hold the entire federal government

[00:28:31] Speaker 05:
accountable under the FCRA for every record-keeping decision it makes, which is what is addressed by the cases cited by defendants.

[00:28:40] Speaker 05:
What we're asking here is to hold the FMCSA accountable when it is by design doing consumer reporting from a directive from Congress.

[00:28:52] Speaker 05:
Thank you, Your Honor.

[00:28:55] Speaker 04:
All right.

[00:28:55] Speaker 04:
Thank you, Council.

[00:28:57] Speaker 04:
We'll take the matter under advisement.