No. 12-57246 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

______________________________ 

GABRIEL FELIX MORAN, 

Plaintiff-Appellant, 

v. 

THE SCREENING PROS, LLC, 

Defendant-Appellee. 

______________________________ 

On Appeal from the United States District Court 

for the Central District of California 

Hon. Stephen V. Wilson 

Case No. 2:12-cv-05808-SVW-AGR 

_____________________________________ 

BRIEF OF AMICI CURIAE

CONSUMER FINANCIAL PROTECTION BUREAU AND 

FEDERAL TRADE COMMISSION SUPPORTING REVERSAL 

_____________________________________ 

Jonathan E. Nuechterlein 

General Counsel 

John F. Daly 

 Deputy General Counsel for 

Litigation 

Theodore (Jack) Metzler 

Attorney 

Office of the General Counsel 

Federal Trade Commission 

600 Pennsylvania Avenue NW 

Washington, DC 20580 

(202) 326-3502 (telephone) 

(202) 326-2477 (facsimile) 

tmetzler@ftc.gov 

Counsel for Amicus Curiae

Federal Trade Commission

Meredith Fuchs 

General Counsel 

To-Quyen Truong 

 Deputy General Counsel 

David M. Gossett 

Assistant General Counsel 

Keith Bradley 

Nandan M. Joshi 

Consumer Financial Protection Bureau 

1700 G Street NW 

Washington, DC 20552 

(202) 435-7005 (telephone) 

(202) 435-9694 (facsimile) 

keith.bradley@cfpb.gov 

Counsel for Amicus Curiae

Consumer Financial Protection Bureau 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 1 of 29
Table of Contents 

Table of Authorities .................................................................................... ii

Interest of Amicus Curiae .......................................................................... 1

Statement .................................................................................................... 4

A. Statutory Background .................................................................. 4

1. Consumer Reporting and the FCRA ..................................... 4

2. Administration of the FCRA ................................................. 8

B. Facts and Procedural History ...................................................... 9

SUMMARY OF THE ARGUMENT ......................................................... 11

ARGUMENT ............................................................................................. 12

I. The Seven-Year Period for Reporting the Dismissed Drug 

Charge Began at the Time of the Charge. ........................................ 12

II. The Subsequent Dismissal of the Charge Did Not Reopen the 

Section 605(a) Reporting Period. ...................................................... 13

III. The Amendment History of the FCRA Confirms Amici’s 

Interpretation. ................................................................................... 17

IV. The Commission Staff’s 40 Years Report Is Not to the 

Contrary. ............................................................................................ 20

Conclusion ................................................................................................. 22

 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 2 of 29
ii 

Table of Authorities 

Page(s)

Cases 

Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 

566 U.S. __, 132 S. Ct. 1670, 182 L. Ed. 2d 678 ................................... 18 

Intel Corp. v. Advanced Micro Devices, Inc., 

542 U.S. 241 (2004) ............................................................................... 20 

Porter v. Talbot Perkins Children's Services, 

355 F. Supp. 174 (S.D.N.Y. 1973) ........................................................... 6 

Seamans v. Temple University, 

901 F. Supp. 2d 584 (E.D. Pa. 2012) ..................................................... 13 

Statutes & Regulatory Materials 

Dodd-Frank Wall Street Reform and Consumer Protection Act, 

 Pub. L. No. 111-203, 124 Stat. 2088 ....................................................... 9 

Fair Credit Reporting Act, 

Pub. L. No. 91-508, tit. VI, 84 Stat. 1127 ............................................... 6 

Consumer Reporting Employment Clarification Act, 

Pub. L. No. 105-347, 112 Stat. 3211 ............................................. 7, 8, 19 

12 U.S.C. § 5491.......................................................................................... 1 

15 U.S.C. § 1681.......................................................................................... 6 

15 U.S.C. § 1681b.................................................................................... 4, 6 

15 U.S.C. § 1681c .............................................................................. passim

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 3 of 29
iii 

15 U.S.C. § 1681i ........................................................................................ 6 

15 U.S.C. § 1681m ...................................................................................... 9 

15 U.S.C. § 1681s ............................................................................ 1, 2, 8, 9 

Commentary on the Fair Credit Reporting Act, 

55 Fed. Reg. 18,804 (May 4, 1990) .................................................... 8, 20

Procedures to Enhance the Accuracy and Integrity of Information 

Furnished to Consumer Reporting Agencies, 74 Fed. Reg. 31,484 ...... 17 

Commentary on the Fair Credit Reporting Act, 

76 Fed. Reg. 44,462 (July 26, 2011) ........................................................ 9 

 

Other 

S. Rep. No. 91-517 (1969) ........................................................................... 3 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 4 of 29
1 

Interest of Amicus Curiae

The Consumer Financial Protection Bureau (Bureau), an agency 

of the United States, files this brief pursuant to Federal Rule of 

Appellate Procedure 29(a). 

The Bureau is the federal agency charged, under the Dodd-Frank 

Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), 

with “regulat[ing] the offering and provision of consumer financial 

products and services under Federal consumer financial law.” 12 U.S.C. 

§ 5491(a). The Fair Credit Reporting Act (FCRA), as amended by the 

Dodd-Frank Act, authorizes the Bureau generally to enforce the FCRA, 

15 U.S.C. § 1681s(b)(1)(H), and to “prescribe regulations as may be 

necessary or appropriate to administer and carry out the purposes and 

objectives” of the FCRA, id. § 1681s(e)(1). At issue in this case is 

§ 605(a) of the FCRA, 15 U.S.C. § 1681c(a), a provision that is critical 

for fulfilling the objective of preserving consumers’ privacy. The Bureau 

seeks to assist the Court by providing the Bureau’s interpretation of 

that provision. 

The Bureau is joined in this brief by the Federal Trade 

Commission (FTC or Commission). The Commission is the federal 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 5 of 29
2 

agency with primary responsibility for the protection of consumers from 

unfair and deceptive trade practices, including through enforcement of 

the FCRA, 15 U.S.C. § 1681s(a). Additionally, the Commission issued 

both the Commentary on the Fair Credit Reporting Act (1990) and 40 

Years of Experience with the Fair Credit Reporting Act (2011), on which 

the District Court relied in this case. The Commission thus has an 

interest in the Court’s resolution of the issues presented in this case. 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 6 of 29
3 

Introduction 

Consumer reporting agencies play a “vital role” in our economy by 

providing “[t]hose who extend credit or insurance or who offer 

employment . . . the facts they need to make sound decisions.” See S. 

Rep. No. 91-517, at 2 (1969). But by assembling and disseminating 

volumes of information about individuals, consumer reporting agencies 

have the power unduly to invade individuals’ privacy. See id. This case 

involves one provision that balances these dual considerations, 

§ 605(a)—a provision that, with certain narrow exceptions, bars 

consumer reporting agencies from including in consumer reports 

information that is, according to the statute, outdated. See Pub. L. 91-

508, § 605, 84 Stat. 1129 (“Obsolete Information”), codified at 15 U.S.C. 

§ 1681c. In general, an “adverse item of information” is reportable only 

if it “antedates the report” by seven years or fewer. 15 U.S.C. 

§ 1681c(a)(5). 

Defendant-Appellee The Screening Pros, LLC (TSP) provided a 

consumer report, in the form of a tenant background screening report, 

on Plaintiff-Appellant Moran. The report, made in 2010, listed (among 

other items) a 2000 misdemeanor drug charge that was dismissed in 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 7 of 29
4 

2004. The District Court concluded that the drug charge could be 

reported for seven years from the date the charge was dismissed. That 

was error. As a result of a 1998 amendment to the FCRA, the sevenyear reporting period for the dismissed drug charge commenced on the 

date of the charge and therefore ended in 2007. 

The District Court’s dismissal of Plaintiff’s § 605(a) claim thus 

should be reversed. 

Statement 

A. Statutory Background 

1. Consumer Reporting and the FCRA 

Consumer reporting is of fundamental importance in the 21stcentury American economy. Information contained in consumer reports 

can be critical to decisions at many points in consumers’ lives: on 

eligibility for loans and loan pricing,1 access to checking accounts,2

eligibility for government benefits,3 underwriting of insurance,4 hiring 

 

1 Consumer Financial Protection Bureau, Key Dimensions and Processes 

in the U.S. Credit Reporting System, p. 5 (Dec. 2012), available at 

http://files.consumerfinance.gov/f/201212_cfpb_credit-reporting-whitepaper.pdf (hereinafter Key Dimensions).

2 Id.

3 See 15 U.S.C. § 1681b(a)(3)(D).

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 8 of 29
5 

and promotion of employees,5 access to rental housing,6 and more. For 

example, a landlord considering a prospective tenant may often obtain a 

background screening report.7

Consumer reporting agencies are central to this system. A 

consumer reporting agency typically assesses the reliability of various 

sources of information; gathers information from those sources; collates 

the information; and assigns the collected information to the files of 

different individuals. Whether a consumer does or does not get a loan, 

a job, or an apartment can depend on a piece of information that a 

consumer reporting agency includes in a report about the person. 

 

4 Federal Trade Commission, Credit-Based Insurance Scores: Impacts on 

Consumers of Automobile Insurance, A Report to Congress (July 2007), 

available at 

http://www.ftc.gov/os/2007/07/P044804FACTA_Report_CreditBased_Insurance_Scores.pdf. 

5 According to one report, forty-seven percent of firms used credit checks 

to select job candidates, while thirteen percent used credit checks for all 

job candidates. See The Society for Human Resource Management, 

SHRM Research Spotlight: Credit Background Checks, Society Human 

Resource Management (2010), available at http://bit.ly/rZozFC.

6 See, e.g., Experian ConnectSM, available at http://ex.pn/16tHGGb.

7 See Nat’l Consortium for Justice Info. & Statistics, Report of the 

National Task Force on the Commercial Sale of Criminal Justice Record 

Information, p. 20 (2005). 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 9 of 29
6 

The FCRA, enacted in 1970,8 regulates consumer reporting. The 

statute was designed to ensure that consumer reporting agencies 

provide information “in a manner which is fair and equitable to the 

consumer, with regard to the confidentiality, accuracy, relevancy, and 

proper utilization of such information.”9 A primary purpose of the 

FCRA is “to protect an individual from inaccurate or arbitrary 

information about himself in a consumer report that is being used as a 

factor in determining the individual’s eligibility for credit, insurance or 

employment.”10 Porter v. Talbot Perkins Children’s Servs., 355 F. Supp. 

174, 176 (S.D.N.Y. 1973). 

The FCRA fosters this purpose through a set of interlocking 

requirements, including restrictions on the dissemination of consumer 

reports, procedures for disputing accuracy, and limitations on the 

information to be contained in consumer reports. 15 U.S.C. § 1681b; id. 

§ 1681i; id. § 1681c. Most relevant for this case, the FCRA restricts a 

 

8 Pub. L. 91-508, title VI, 84 Stat. 1128. 

9 15 U.S.C. § 1681(b).

10 This purpose extends to information used for other purposes—besides 

assessing eligibility for credit, insurance, or employment—that are also 

permissible under the FCRA, see 15 U.S.C. § 1681b(a) (listing 

permissible uses of consumer reports). 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 10 of 29
7 

consumer reporting agency from including obsolete information in a 

consumer report. Section 605(a) generally prohibits the reporting of 

“[a]ny . . . adverse item of information . . . which antedates the report by 

more than seven years,” id. § 1681c(a)(5).11 For certain types of 

information, Congress modified the general rule by adjusting either the 

starting point or the length of the reporting period. For example, the 

reporting period for bankruptcy cases is 10 years. Id. § 1681c(a)(1). 

The reporting period for a tax lien is seven years from the date the lien 

is paid off. Id. § 1681c(a)(3). 

In the original FCRA, “[r]ecords of arrest, indictment, or 

conviction of crime” were reportable for seven years, starting at the 

“date of disposition, release, or parole.” Id. § 1681c(a)(5) (1996). A 1998 

amendment to the FCRA deleted this paragraph. Consumer Reporting 

Employment Clarification Act, Pub. L. 105-347, § 5(2), 112 Stat. 3211. 

The amendment moved “records of arrest” to pre-existing paragraph 

(a)(2), which now limits the reporting of “[c]ivil suits, civil judgment, 

 

11 This prohibition does not apply for a consumer report “to be used in 

connection with” a credit transaction of more than $150,000, life 

insurance of more than $150,000, or employment for a salary of over 

$75,000. Id. § 1681c(b). 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 11 of 29
8 

and records of arrest” to seven years “from date of entry,” 15 U.S.C. 

§ 1681c(a)(2). See Pub. L. 105-347, § 5(1), 112 Stat. 3211.12 The 1998 

amendment also removed criminal convictions altogether from the 

restriction on reporting obsolete information. Id. § 5(3), codified at 15 

U.S.C. § 1681c(a)(5) (prohibiting reporting, past seven years, of “any 

other adverse item of information, other than records of convictions of 

crimes”). 

2. Administration of the FCRA 

Congress originally designated the Commission as the primary 

agency responsible for enforcing the FCRA. 15 U.S.C. § 1681s (2008). 

In 1990, the Commission issued a compilation of its interpretations and 

guidance regarding the FCRA, including § 605(a). FTC, Commentary on 

the Fair Credit Reporting Act, 55 Fed. Reg. 18,804 (May 4, 1990) 

(hereinafter 1990 Commentary). 

In the Dodd-Frank Act, Congress granted the Bureau authority to 

enforce the FCRA, along with the Commission and other agencies, and 

also granted the Bureau authority to issue rules to implement the 

 

12 Information of this type can be reported “until the governing statute 

of limitations has expired,” if that period is longer. 15 U.S.C. 

§ 1681c(a)(2).

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 12 of 29
9 

FCRA. See Dodd-Frank Act, Pub. L. 111-203, § 1088(a)(10), 124 Stat. 

2088, codified at 15 U.S.C. § 1681s. The Bureau is the first agency to 

have general rulemaking authority with respect to the FCRA.13 To 

coincide with the transfer of authority to the Bureau, the Commission’s 

staff published an updated compilation of past interpretations of the 

FCRA by the Commission and its staff. FTC Staff Report, 40 Years of 

Experience with the Fair Credit Reporting Act (July 2011), available at 

http://www.ftc.gov/os/2011/07/110720fcrareport.pdf (hereinafter “40 

Years Report”). In approving the issuance of the staff’s 40 Years Report, 

the Commission withdrew the 1990 Commentary. FTC, Commentary on 

the Fair Credit Reporting Act, 76 Fed. Reg. 44,462 (July 26, 2011). 

B. Facts and Procedural History 

This case arises from the dismissal, by the U.S. District Court for 

the Central District of California, of Plaintiff’s complaint against TSP. 

 

13 The Commission and other agencies have had the authority to issue 

rules under several specific provisions of the FCRA, such as § 615(e). 15 

U.S.C. § 1681m(e) (authorizing various agencies to prescribe regulations 

regarding the prevention of identity theft). From 1997 to 2011, the 

Board of Governors of the Federal Reserve System had authority to 

“issue interpretations” of the FCRA as it applied to various kinds of 

banking organization. 15 U.S.C. § 1681s(e) (2008); see Pub. L. 111-203, 

§ 1088(a)(10)(E), 124 Stat. 2090 (striking FCRA § 621(e) and replacing 

it with provision authorizing Bureau rulemaking under FCRA). 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 13 of 29
10 

According to the complaint, Plaintiff applied for housing at Maple 

Square, an affordable housing development. ER 55.14 In assessing 

Plaintiff’s application, the property manager obtained a consumer 

report on Plaintiff from TSP on February 5, 2010. Id. 

TSP’s report recited four criminal cases against Plaintiff: a May 

16, 2000 misdemeanor drug charge, dismissed on March 2, 2004; two 

June 2006 charges, for burglary and forgery, dismissed that same 

month; and a June 2006 conviction for misdemeanor embezzlement 

from an older adult.15 ER 67. 

Plaintiff claims the FCRA prohibits the reporting of the 2000 drug 

charge, which antedated TSP’s report by nearly 10 years. He sued TSP 

under the FCRA and under various California statutes, including those 

regulating consumer reporting. ER 57–65. At first the District Court 

concluded that the drug charge was an “adverse item of information” 

that could not be reported for more than seven years from the date of 

the charge. ER 40. The District Court therefore denied TSP’s motion to 

 

14 This brief uses the citation “ER” to refer to the Appellant’s Excerpts of 

Record, filed with this Court on September 27, 2013. 

15 TSP’s report does not reveal whether the dates of the charges reflect 

the dates of arrest, the dates of indictment, or both.

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 14 of 29
11 

dismiss Plaintiff’s claim under § 605(a). Id. On reconsideration, the 

District Court reversed itself. The court decided that the FCRA 

reporting period for a criminal case begins with the disposition of the 

case, such as dismissal of the indictment. ER 9–10. Because Plaintiff’s 

indictment was dismissed in 2004, under the District Court’s revised 

reading of the statute, TSP’s 2010 report fell within the FCRA’s sevenyear reporting period. On that basis, the District Court dismissed 

Plaintiff’s § 605(a) claim. ER 10. Plaintiff appealed. ER 1. 

SUMMARY OF THE ARGUMENT 

The FCRA restricts the reporting of “[a]ny other adverse item of 

information . . . which antedates the report by more than seven years.” 

15 U.S.C. § 1681c(a)(5). An adverse item, when it occurs, starts the 

seven-year period. Later related events that are not in themselves 

adverse do not reopen the period. 

Thus, in the case of a criminal charge that is eventually 

dismissed, the dismissal is not an adverse item that starts its own 

seven-year reporting period. It is simply the disposition of the truly 

adverse item, the underlying criminal charge. Because the seven-year 

period here began in 2000, the charge—and the dismissal, which 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 15 of 29
12 

necessarily revealed the existence of the charge—generally could not be 

reported after 2007. 

This conclusion follows from the text and from considering the 

purposes of § 605(a), as well as from the 1998 amendment to the 

provision. Before 1998, § 605(a) explicitly made disposition of a charge 

the trigger for the seven-year reporting period. The 1998 amendment 

deleted that provision. The District Court, ignoring the amendment, 

incorrectly relied on pre-1998 FTC commentary that was based on the 

old provision. 

ARGUMENT 

I. The Seven-Year Period for Reporting the Dismissed Drug 

Charge Began at the Time of the Charge. 

Section 605(a)(5) restricts the reporting of an “adverse item of 

information . . . which antedates the report by more than seven years.” 

15 U.S.C. § 1681c(a)(5). That TSP reported adverse information for 

Plaintiff that was more than seven years old in 2010 is apparent from 

the face of the report. The report lists several criminal cases. For each, 

the report first provides the “filing date” and the “offense type” (for the 

drug charge, a misdemeanor); next, the “charge/offense”; and finally, the 

disposition and its date. ER 67. In light of how TSP presented the 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 16 of 29
13 

information, the “adverse item of information” that TSP reported was 

evidently—in TSP’s understanding, and presumably as understood by 

users of the report—a “charge/offense.” The most natural reading of 

§ 605(a)(5) would limit reporting of the “charge” to the seven years after 

it occurred. The drug charge, as the report noted, was filed in 2000. 

II.The Subsequent Dismissal of the Charge Did Not Reopen the 

Section 605(a) Reporting Period. 

TSP has maintained, and the District Court held, that the drug 

charge could instead be reported for seven years from the date it was 

dismissed. ER 10. But § 605(a) does not permit such reopening of the 

seven-year reporting period. 

The dismissal of the drug charge is not adverse information in 

itself, for purposes of § 605(a). “Courts have found ‘adverse information’ 

to mean ‘information which may have, or may reasonably be expected to 

have, an unfavorable bearing on a consumer’s eligibility or 

qualifications for credit, insurance, employment, or other benefit.’” 

Seamans v. Temple Univ., 901 F. Supp. 2d 584, 593 n.4 (E.D. Pa. 2012); 

cf. 40 Years Report at 55, Comment 605-4 (“The seven-year reporting 

period applies only to ‘adverse’ information that casts the consumer in a 

negative or unfavorable light.”). The dismissal of a charge, standing 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 17 of 29
14 

alone, does not ordinarily reflect negatively on a consumer, nor would it 

reasonably be expected to bear unfavorably on the consumer’s eligibility 

for credit or other benefits. A dismissal is simply a development, 

ordinarily positive for the charged consumer, in the history of a criminal 

charge. To the extent a dismissal reflects negatively on a consumer, it 

does so because it reveals the existence of the criminal charge, the truly 

adverse information. 

That is not to say the dismissal by itself could be reported 

indefinitely. It has been a longstanding principle in the application of 

§ 605(a) that “a [consumer reporting agency] may not furnish a 

consumer report referencing the existence of adverse information that 

predates the times set forth” in § 605. 40 Years Report at 55, Comment 

605-1. Otherwise the FCRA’s clear limitations on the use of obsolete 

information would be vulnerable to easy evasion. Except in cases of 

convictions, § 605(a) limits the time for reporting the entire criminal 

case, including the dismissal. 

But the fact that reporting of a dismissal is restricted under 

§ 605(a) because it reveals the existence of the underlying indictment 

does not mean that the dismissal initiates its own seven-year reporting 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 18 of 29
15 

period. To the contrary, the § 605(a)(5) limitation is based on the time 

of the adverse item of information. The provision generally prohibits 

reporting of an “adverse item . . . which antedates the report by more 

than seven years.” 15 U.S.C. § 1681c(a)(5). Therefore, the timing of the 

reporting period under § 605(a)(5) depends on the date of the “adverse 

item” itself.16 

The contrast with other paragraphs of § 605(a), in which Congress 

prescribed a different rule for specific categories of information, is 

instructive. For paid tax liens, the reporting period begins “from date of 

payment,” 15 U.S.C. § 1681c(a)(3); for bankruptcy cases, “from the date 

of entry of the order for relief or the date of adjudication, id. 

§ 1681c(a)(1). Similarly, the pre-1998 version of § 605(a) had the 

reporting period for a “record[] . . . of indictment” run “from date of 

disposition, release, or parole.” 15 U.S.C. § 1681c(a)(5) (1996). For 

those categories for which Congress wanted the seven-year period to 

 

16 The Bureau’s and Commission’s interpretation does not preclude the 

possibility that a criminal case or a particular account history might 

include more than one adverse item, each reportable for seven years. 

Cf. 40 Years Report at 57 Comment 605(a)(5)-4 (“The seven year 

reporting period for criminal record information ‘other than convictions 

of crimes’ runs from the date of the reported event.”).

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 19 of 29
16 

begin with something other than the occurrence of the adverse item, 

§ 605(a) says so explicitly. 

The Bureau’s and the Commission’s interpretation of § 605(a) as 

applied to information related to Plaintiff’s drug charge is also 

consistent with the position the Commission staff has long taken with 

respect to old debts. For example, a creditor’s referral of a consumer’s 

debt to a collection agency is an “adverse item of information,” because 

it reflects negatively on the consumer’s creditworthiness. This adverse 

information is reportable for a seven-year period that is based on the 

time of the referral.17 Later non-adverse events relating to the debt do 

not extend the period in which a consumer reporting agency may report 

the fact that the debt was referred to collection. Just as a criminal 

charge might be dismissed, a consumer might make a partial or full 

payment of the defaulted debt. The FTC’s staff have opined that “[t]he 

reporting period is not extended” by such a payment. 40 Years Report

at 57, Comment 604(a)(4)-2. Also, a creditor might sell the debt to a 

 

17 Section 605 specifies that the seven-year reporting period for a 

delinquent account placed with a collection agency begins 180 days 

after “the commencement of the delinquency which immediately 

preceded the collection activity.” 15 U.S.C. § 1681c(c)(1).

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 20 of 29
17 

new holder or transfer it to another collection agency. These 

subsequent developments—which are not adverse items of information 

in themselves— do not trigger new seven-year reporting periods for the 

debt in collection.18 

The Bureau agrees with these views regarding obsolete debts, and 

amici believe the same principles apply for obsolete criminal matters 

under § 605(a)(5). The provision does not, on its face, distinguish 

criminal cases (aside from those resulting in convictions) from other 

kinds of adverse information. 

III. The Amendment History of the FCRA Confirms Amici’s 

Interpretation. 

TSP argued before the District Court that a criminal record can be 

reported for seven years after the date of disposition. But this 

interpretation relied on a special rule that existed in the pre-1998 

FCRA. Congress has eliminated that special rule. 

 

18 See Procedures to Enhance the Accuracy and Integrity of Information 

Furnished to Consumer Reporting Agencies, 74 Fed. Reg. 31,484, 31,496 

n.24 (final rule July 1, 2009) (“Re-aging of an account . . . when an 

account is sold or transferred to a third party that resets the account 

opening date to the date the account was received by the third party . . . 

may result in adverse credit information staying on a consumer’s credit 

report longer than what is permissible [under] the FCRA, which for 

accounts that are placed in collection or charged off is typically no more 

than seven years.”). 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 21 of 29
18 

Before 1998, the FCRA expressly distinguished criminal records 

from other adverse information. “Records of arrest, indictment, or 

conviction of crime,” originally were reportable for seven years from “the 

date of disposition, release, or parole.” 15 U.S.C. § 1681c(a)(5) (1996). 

This special rule for criminal records departed from the general rule 

that “any other adverse item of information” was reportable only for 

seven years. 15 U.S.C. § 1681c(a)(6) (1996). It follows that the general 

rule, had it applied to criminal-record information, would not have 

made the seven-year reporting period start at the date of disposition of 

a charge. Congress need not have enacted the special provision for 

criminal records merely to achieve the same result as would have 

occurred under the general rule. Cf. Caraco Pharm. Labs., Ltd. v. Novo 

Nordisk A/S, 566 U.S. __, 182 L. Ed. 2d 678, 132 S. Ct. 1670, 1685, 

(2012) (disfavoring interpretation that would render part of statute 

“insignificant, if not wholly superfluous”). Now that, as a result of the 

1998 amendments, the general provision does cover criminal records 

(aside from convictions and records of arrest), this same original 

understanding applies. 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 22 of 29
19 

Moreover, a proper interpretation of § 605(a) must give effect to 

Congress’s 1998 amendment of the provision. Pub. L. 105-347, § 5, 112 

Stat. 3211. As amended, § 605(a) includes “records of arrest” along with 

“civil suits [and] judgments” as adverse items reportable for seven years 

“from date of entry.” 15 U.S.C. § 1681c(a)(2) (2008).19 Convictions, on 

the other hand, are exempt entirely from the limitation on reporting old 

information. Id. § 1681c(a)(5). Current § 605(a) is silent about 

indictments. In eliminating the special rule for indictments, Congress 

must have intended that indictments be treated under the general rule 

that applies to adverse items of information. 

TSP argued to the District Court that the only effects of the 1998 

amendment were to move “records of arrest” into a different paragraph 

and to exclude convictions from the restrictions of § 605(a). ER 17, 19. 

That argument fails to recognize the changes Congress actually made. 

If Congress desired only those two effects, it only needed to move 

“records of arrest” and “convictions” from the criminal-records 

paragraph of § 601(a), while leaving that paragraph otherwise intact. 

 

19 An item of this type may be reportable “until the governing statute of 

limitations has expired,” if that period is longer. 15 U.S.C. 

§ 1681c(a)(2).

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 23 of 29
20 

Instead, the 1998 amendment deleted the criminal-records paragraph 

entirely. “When Congress acts to amend a statute, we presume it 

intends its amendment to have real and substantial effect.” Intel Corp. 

v. Advanced Micro Devices, Inc., 542 U.S. 241, 258–59 (2004). 

IV. The Commission Staff’s 40 Years Report Is Not to the 

Contrary. 

The District Court’s decision reconsidering the motion to dismiss 

the complaint did not grapple with statutory interpretation issues like 

those discussed above. Instead, the District Court relied on the FTC’s 

1990 Commentary to conclude that a criminal charge can be reported 

for seven years from the date of its dismissal. The District Court 

believed that the 40 Years Report adopted Comment 605(a)(5)-2 of the 

1990 Commentary. This was error. 

 Comment 605(a)(5)-2 of the 1990 Commentary said, “The seven 

year reporting period runs from the date of disposition, release, or 

parole, as applicable.” 1990 Commentary, 55 Fed. Reg. at 18,818. But 

this was not an interpretation of the “any other adverse item” clause. It 

was simply a restatement of the statutory text applicable, at the time, 

to criminal records; the commentary then provided several helpful 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 24 of 29
21 

examples of dispositions that would trigger seven-year reporting periods 

under that version of the statute. See id. (reciting statutory language). 

The statutory text on which 1990 Comment 605(a)(5)-2 was based 

was deleted in 1998 and is no longer the law. 

The 40 Years Report faithfully reflects the change effected by the 

1998 amendment. The portion of the report describing the limitations 

on reporting of criminal records says the reporting period “runs from 

the date of the reported event,” 40 Years Report at 57, rather than from 

“the date of disposition” as the 1990 Commentary had said. 

What led the District Court astray was that the 40 Years Report 

referred to 1990 Comment 605(a)(5)-2 on this point. That reference, 

however, did not indicate that the 1990 comment accurately reflected 

current law. Indeed, the introduction to the 40 Years Report noted that 

the 1990 Commentary had become partially obsolete “[t]hrough the 

passage of time and the adoption of significant amendments to the 

FCRA.” 40 Years Report at 7. And FTC staff alerted readers that, 

relative to the 1990 Commentary, they had modified some comments “to 

account for post-1990 FCRA amendments.” Id. at 16 n.60. By 

withdrawing the 1990 Commentary, the Commission intended for it to 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 25 of 29
22 

have no legal effect. Nonetheless, the report noted that references to 

the 1990 Commentary are provided “[f]or the convenience of readers” as 

the source of interpretations. Id. at 16. The Commission reiterates 

here, as stated in the 40 Years Report, that references to the 1990 

Commentary do not incorporate that withdrawn interpretation. To the 

extent there is any ambiguity, the Commission now clarifies that the 40 

Years Report referred to 1990 Comment 605(a)(5)-2 merely to flag the 

previous interpretation for an interested reader, not to suggest that 

Comment 605(a)(5)-2 articulated the governing standard 

notwithstanding the change in the statute.

Conclusion 

For the above reasons, the District Court’s dismissal of Plaintiff’s 

claim that TSP violated § 605(a) of the FCRA, 15 U.S.C. § 1681c(a), by 

reporting the dismissal of his criminal charge more than seven years 

after the initial charge, should be reversed. 

 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 26 of 29
23 

Respectfully submitted, 

Dated: October 4, 2013 /s/ Keith Bradley 

 

Jonathan E. Nuechterlein 

General Counsel 

John F. Daly 

 Deputy General Counsel for 

Litigation 

Theodore (Jack) Metzler 

Attorney 

Office of the General Counsel 

Federal Trade Commission 

600 Pennsylvania Avenue NW 

Washington, DC 20580 

(202) 326-3502 (telephone) 

(202) 326-2477 (facsimile) 

tmetzler@ftc.gov 

Counsel for Amicus Curiae

Federal Trade Commission

Meredith Fuchs 

General Counsel 

To-Quyen Truong 

 Deputy General Counsel 

David M. Gossett 

Assistant General Counsel 

Keith Bradley 

Nandan M. Joshi 

Consumer Financial Protection 

Bureau 

1700 G Street NW 

Washington, DC 20552 

(202) 435-7005 (telephone) 

(202) 435-9694 (facsimile) 

keith.bradley@cfpb.gov 

Counsel for Amicus Curiae

Consumer Financial Protection 

Bureau 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 27 of 29
 

CERTIFICATE OF COMPLIANCE 

This brief complies with Federal Rules of Appellate Procedure 

29(d) and 32(a)(7) in that it contains 4,232 words, excluding the parts of 

the brief exempted by Rule 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Fed. R. App. 

P. 32(a)(5) and the type style requirement of Fed. R. App. P. 32(a)(6) 

because it has been prepared in a proportionally spaced typeface using 

Microsoft Word 2010 in 14-point Century Schoolbook. 

Dated: October 4, 2013 /s/ Keith Bradley 

Keith Bradley 

Counsel for Amicus Curiae 

 Consumer Financial Protection Bureau 

1700 G Street NW 

Washington, DC 20552 

(202) 435-7005 (telephone) 

(202) 435-9694 (facsimile) 

keith.bradley@cfpb.gov 

 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 28 of 29
 

CERTIFICATE OF SERVICE 

 I hereby certify that on October 4, 2013, I filed and served 

the foregoing with the Court’s appellate CM-ECF system. 

Dated: October 4, 2013 /s/ Keith Bradley 

Keith Bradley 

Counsel for Amicus Curiae 

 Consumer Financial Protection Bureau

1700 G Street NW 

Washington, DC 20552 

(202) 435-7005 (telephone) 

(202) 435-9694 (facsimile) 

keith.bradley@cfpb.gov 

Case: 12-57246 10/04/2013 ID: 8809793 DktEntry: 22 Page: 29 of 29