FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABRIEL FELIX MORAN,

Plaintiff-Appellant,

v.

THE SCREENING PROS, LLC, a 

California corporation,

Defendant-Appellee.

No. 20-55908

D.C. No.

2:12-cv-05808-

SVW-AGR

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted December 10, 2021

Pasadena, California

Filed February 8, 2022

Before: Marsha S. Berzon and Carlos T. Bea, Circuit 

Judges, and Richard D. Bennett,* District Judge.

Opinion by Judge Bea

* The Honorable Richard D. Bennett, United States District Judge 

for the District of Maryland, sitting by designation.
2 MORAN V. THE SCREENING PROS

SUMMARY**

Fair Credit Reporting Act

The panel affirmed the district court’s grant of summary 

judgment in favor of The Screening Pros, LLC, in an action 

brought under the Fair Credit Reporting Act by Gabriel Felix 

Moran.

In a prior appeal, the court held that The Screening Pros, 

a credit reporting agency, violated 15 U.S.C. § 1681c(a)(5), 

which prohibits the disclosure in a credit report of any 

adverse item of information that antedates the report by more 

than seven years. In 2010, The Screening Pros issued a 

tenant screening report that disclosed a criminal charge that 

was filed against Moran in 2000 (beyond the seven-year 

window) but dismissed in 2004 (within the seven-year 

window). On remand, the district court granted summary 

judgment to The Screening Pros, holding that Moran failed 

to present evidence that The Screening Pros violated the 

FCRA willfully or negligently, as required for liability by 

§§ 1681n(a) and 1681o(a).

The panel held that to prove a negligent violation of the 

FCRA, a plaintiff must show that the defendant acted 

pursuant to an objectively unreasonable interpretation of the 

statute. A plaintiff can prove a willful violation by showing 

a knowing or a reckless violation of a standard.

The panel held that the court’s previous holding, which 

did not rely on the text of the statute alone, did not show that 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MORAN V. THE SCREENING PROS 3

The Screening Pros’ interpretation of the FCRA was 

objectively unreasonable. The panel held that, on the record 

here, no reasonable fact finder could conclude that The 

Screening Pros’ violation of § 1681c(a)(5) was negligent, 

much less willful. The panel explained that the issue 

whether The Screening Pros correctly interpreted 

§ 1681c(a)(5) was a matter of first impression in the previous 

appeal; The Screening Pros presented evidence that its 

interpretation was consistent with industry norms; the 

Federal Trade Commission’s only guidance on the question 

at the time appeared to permit reporting the criminal charge; 

the district court changed its ruling on reconsideration; and 

the opinion in the previous appeal was not unanimous.

COUNSEL

Devin H. Fok (argued), DHF Law PC, San Marino, 

California, for Plaintiff-Appellant.

Michael J. Saltz (argued) and Elana Levine, Jacobson 

Russell Saltz Nassim & de la Torre LLP, Los Angeles, 

California, for Defendant-Appellee.
4 MORAN V. THE SCREENING PROS

OPINION

BEA, Circuit Judge:

The Fair Credit Reporting Act (“FCRA”) prohibits credit 

reporting agencies from disclosing in a credit report “[a]ny 

. . . adverse item of information . . . which antedates the 

report by more than seven years.” 15 U.S.C. § 1681c(a)(5).1 

Previously, we held that The Screening Pros, LLC 

(“Defendant”) violated this provision when it issued a tenant 

screening report for Gabriel Felix Moran (“Plaintiff”) in 

2010 that disclosed a criminal charge that was filed in 2000 

(beyond the seven-year window), but dismissed in 2004 

(within the seven-year window). Moran v. Screening Pros, 

LLC, 943 F.3d 1175, 1186 (9th Cir. 2019). On remand, the 

district court granted summary judgment to Defendant on 

Plaintiff’s claims under the FCRA, holding that Plaintiff 

failed to present evidence that Defendant violated the FCRA 

willfully or negligently, as required for liability by 

§§ 1681n(a) and 1681o(a). We have jurisdiction under 

28 U.S.C. § 1291 and affirm.

I. BACKGROUND

A. Relevant Facts and Early Procedural History

In February 2010, Plaintiff submitted a housing 

application to Maple Square, a low-income housing 

development in Fremont, California. Maple Square hired 

Defendant, a now defunct credit reporting agency (“CRA”), 

to conduct a background check on Plaintiff. The housing 

application was denied after Maple Square received the 

1 Unless otherwise noted, citations to statutes in this opinion refer to 

Title 15 of the United States Code.
MORAN V. THE SCREENING PROS 5

background check (“the Report”) prepared by Defendant. 

The Report, dated February 5, 2010, revealed that Plaintiff 

had three dismissed criminal charges and a conviction. The 

conviction and two of the dismissed charges were filed in 

2006, well within the seven-year period. But, importantly, 

the oldest dismissed charge (the “2000 Charge”) was filed in 

2000 and dismissed in 2004.

Plaintiff claimed, among other things, that the inclusion 

of the 2000 Charge in the Report was unlawful. Plaintiff 

filed suit in California state court on February 2, 2012, 

pleading causes of action under state law. On June 7, 2012, 

Plaintiff filed a First Amended Complaint (“FAC”), which 

added additional causes of action under the Fair Credit 

Reporting Act (“FCRA”). Under the FCRA, a CRA, such as 

Defendant, is liable to a consumer, like Plaintiff, for either 

the negligent or willful failure to comply with any 

requirement under the FCRA with respect to that consumer. 

§§ 1681n(a), 1681o(a). Plaintiff alleged Defendant 

committed (grossly) negligent and willful violations of 

§ 1681c(a) (reporting certain criminal information older than 

7 years) (“Count One”); § 1681e (failing to maintain 

procedures designed to avoid violating § 1681c and to 

ensure the maximum possible accuracy of the information in 

the report) (“Count Two”); and § 1681i (failing to conduct a 

reasonable reinvestigation after an item in the report is 

disputed by the consumer and the consumer notifies the 

agency directly of such dispute) (“Count Three”).

On July 5, 2012, Defendant removed the lawsuit to the 

district court. Defendant moved to dismiss, and the district 

court initially denied Defendant’s motion with regard to 

Count One, dismissed Count Two, and dismissed numerous 

state law claims. Defendant filed a motion for 

reconsideration and a motion for summary judgment. The 
6 MORAN V. THE SCREENING PROS

district court ultimately granted the motion for 

reconsideration, dismissing both Counts One and Two, and 

granted summary judgment to Defendant on Count Three.

B. The Previous Appeal

Plaintiff appealed, challenging the district court’s FCRA 

holdings (and the dismissal of Plaintiff’s state law claims, 

not at issue now). On that appeal, we considered whether 

the 2000 Charge was too old to have been included in the 

Report under the FCRA. Section 1681c(a) provides, in 

relevant parts:

[N]o consumer reporting agency may 

make any consumer report containing any of 

the following items of information:

. . .

(2) Civil suits, civil judgments, and 

records of arrest that, from date of entry, 

antedate the report by more than seven years 

or until the governing statute of limitations 

has expired, whichever is the longer period.

. . .

(5) Any other adverse item of 

information, other than records of 

convictions of crimes[,]2 which antedates the 

report by more than seven years.

2 We previously corrected a scrivener’s error in the statute by 

including “[a] comma . . . to separate the exclusionary clause.” Moran,

943 F.3d at 1183 n.6.
MORAN V. THE SCREENING PROS 7

As we explained in our previous opinion in this case, the 

statute was reorganized by 1998 amendments.3 Moran, 

943 F.3d at 1182–83. In 1990, before the amendments, the 

Federal Trade Commission (“FTC”), the agency responsible 

for enforcing the FCRA, issued a commentary to provide 

guidance and interpretations of the FCRA. FTC, 

Commentary on the Fair Credit Reporting Act, 55 Fed. 

Reg. 18,804 (May 4, 1990) (former 16 C.F.R. pt. 600) 

(“1990 Commentary”). The 1990 Commentary stated, “if 

charges are dismissed at or before trial, or the consumer is 

acquitted, the date of such dismissal or acquittal is the date 

of disposition.” Id. at 18,818. That commentary was 

rescinded in 2011, the year after Defendant issued the Report 

that included the 2000 Charge. See Moran, 943 F.3d 

3 Before Congress’s 1998 amendment to the statute, § 1681c(a) read, 

as relevant:

[N]o consumer reporting agency may make any 

consumer report containing any of the following items 

of information:

. . .

(2) Suits and judgments which, from date of entry, 

antedate the report by more than seven years or until 

the governing statute of limitations has expired, 

whichever is the longer period.

. . .

(5) Records of arrest, indictment, or conviction of 

crime which, from date of disposition, release, or 

parole, antedate the report by more than seven years.

(6) Any other adverse item of information which 

antedates the report by more than seven years.
8 MORAN V. THE SCREENING PROS

at 1184; see also FTC, Commentary on the Fair Credit 

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

On appeal, the parties “agree[d] that the 2000 Charge is 

classified as an ‘adverse item of information’ and thus falls 

under § 1681c(a)(5).” Id. at 1182. The Report was issued 

on February 5, 2010, meaning that, under the current version 

of the law, the 2000 Charge was too old to be reported as 

measured from the date the charge was filed, but recent 

enough to be reported as measured from the date of 

disposition. § 1681c(a)(5).

We reversed the district court’s dismissal of the FCRA 

claims, holding that the “Report’s inclusion of the 2000

Charge fell outside of the permissible seven-year window, 

and thus, [Plaintiff] sufficiently stated claims pursuant to the 

FCRA.” Moran, 943 F.3d at 1186. The panel majority 

acknowledged that in its current form § 1681c(a)(5) “does 

not specifically state the date that triggers the reporting 

window.” Id. at 1183. The majority reasoned that, 

nevertheless, “the plain language of the statute suggests that 

for a criminal charge, the date of entry begins the seven-year 

window” because “[t]he statute’s use of ‘antedates’ connects 

the seven-year window directly to the adverse event itself” 

and a “charge is an adverse event upon entry.” Id. at 1183–

84.

The majority found “further support” for its 

interpretation in a 2011 staff report that accompanied the 

FTC’s rescission of the 1990 Commentary, which stated that 

the seven-year reporting window “runs from the date of the 

reported event.” Id. at 1184 (internal quotations and citation 

omitted). The majority also observed that before the statute 

was amended, the cutoff date for reporting “[r]ecords of 

arrest, indictment, or conviction of crime” ran “from date of 

disposition.” Id. at 1182 (emphasis removed). But this 
MORAN V. THE SCREENING PROS 9

language was removed in 1998, and the statute was 

substantially reorganized. See id. at 1182–83. The majority 

reasoned that the “legislative history” supported its reading 

of the statutory language since “Congress’s removal of ‘date 

of disposition’ altogether suggest[ed] an intent to keep 

records current by starting reporting windows sooner.” Id.

at 1184–85. However, the majority acknowledged that, after 

the 1998 amendment, “convictions may be reported 

indefinitely,” whereas previously convictions were subject 

to a seven-year bar. Id. Finally, the panel majority found 

that its reading of the statute was supported by “the purpose 

of the FCRA,” which “warrants an interpretation that favors 

the consumer.” Id. at 1186.

The majority rejected Defendant’s argument that the 

dismissal of a charge is itself an adverse event. 943 F.3d 

at 1184. The majority reasoned that a dismissal is itself “an 

overall positive—but at least neutral—development,” and is 

“only adverse insofar as it discloses the previous adverse 

event, i.e., the charge.” Id. Thus, “[e]ven though nonadverse information is typically not subject to reporting 

windows, a dismissal is different” because it “necessarily 

references the existence of the adverse event, to which the 

reporting window still applies,” and therefore “neither 

[event] may be reported after seven years from the . . . 

charge.” Id.

Judge Kleinfeld dissented from the FCRA holding, 

reasoning that a record of dismissal is an “adverse item of 

information” under § 1681c(a)(5), and because the dismissal 

of the 2000 Charge did not antedate the Report by more than 

seven years, the Report’s disclosure of the dismissal was 

timely. Id. at 1187, 1189–90. Judge Kleinfeld also reasoned 

that the fact that the 1998 amendment to the statute expanded 

reporting of convictions from a seven-year window to 
10 MORAN V. THE SCREENING PROS

indefinitely showed that “Congress concluded that . . . 

landlords . . . needed to know more about convictions.” Id.

at 1191–92. Moreover, Judge Kleinfeld reasoned that some 

deference was due to “long established commercial norms,” 

and observed that the statute “ha[d] been interpreted for 

decades to permit” reporting charges that had been dismissed 

within seven years of a report. Id. at 1193–94 (internal 

quotations omitted).

C. The Decision Below

On remand, Plaintiff filed a motion for summary 

judgment on his causes of action under §§ 1681c(a) and 

1681e (and some of the state law claims). The district court 

informed Plaintiff that it was considering granting summary 

judgment for Defendant on certain causes of action pursuant 

to Fed R. Civ. P. 56(f), and gave Plaintiff an opportunity to 

present additional evidence in response to arguments raised 

by Defendants. It then granted summary judgment to 

Defendant on all of Plaintiff’s FCRA claims and, declining 

to exercise supplemental jurisdiction over the remaining 

state law claims, remanded the case to California state court.

The district court held that Defendant’s violation of 

§ 1681c(a) was neither willful nor negligent. The district 

court reasoned that this court previously stated that the 

statutory interpretation was a matter of first impression, that 

none of the information included by Defendant was 

inaccurate, and that at the time of the reporting the FTC’s 

only guidance (admittedly discussing the statute before the 

1998 amendment) asserted that the seven-year reporting 

period ran from the date of disposition. Moreover, Judge 

Kleinfeld’s partial dissent, an amicus brief submitted to this 

court, and a declaration submitted by Defendant’s expert 

tended to prove that the statute had been interpreted for 

decades to permit the report of a dismissal of charges 
MORAN V. THE SCREENING PROS 11

occurring within seven years of the report. And Defendant’s 

president testified that he was repeatedly informed in 

training sessions that criminal cases may be reported for 

seven years after dismissal.4 Further, the district court 

observed that this court “resolved the [statutory 

interpretation] question in part through reference to FTC 

guidance and amicus briefs.” Finally, the district court 

observed that it had previously found the statute to be 

sufficiently ambiguous to reverse its prior ruling on 

reconsideration.5

Plaintiff now appeals the district court’s grant of 

summary judgment to Defendant, contending that 

Defendant’s violation of § 1681c(a) was “likely willful and, 

at a minimum negligent.”6

4 The district court acknowledged that statements made to the 

company’s president would be inadmissible hearsay, but stated that it 

was not offered to prove the truth of the matter asserted but was relevant 

to whether Defendant was negligent in interpreting the statute as he was 

advised during the training sessions.

5 The district court also granted summary judgment on Plaintiff’s 

FCRA claims under § 1681e and § 1681i, and articulated an alternative 

ground for summary judgment on all of Plaintiff’s FCRA claims: that 

Plaintiff did not suffer any damages due to the alleged FCRA violations.

6 On appeal, Plaintiff has waived any challenge to the district court’s 

grant of summary judgment to Defendant on Plaintiff’s claims under 

§§ 1681i and 1681e. See Clark v. Time Warner Cable, 523 F.3d 1110, 

1116 (9th Cir. 2008) (“This court ‘will not ordinarily consider matters 

on appeal that are not specifically and distinctly argued in appellant’s 

opening brief.’”); In re Riverside-Linden Inv. Co., 945 F.2d 320, 324–25 

(9th Cir. 1991). Plaintiff’s opening brief refers to claims under § 1681i 

as among the issues on appeal and cites the statute once in defending his 

argument that he suffered actual damages and again as the basis of 

distinguishing a case, but does not refer to § 1681i claims in the summary 
12 MORAN V. THE SCREENING PROS

II. STANDARD OF REVIEW

“We review the district court’s grant of summary 

judgment de novo.” Marino v. Ocwen Loan Servicing LLC, 

978 F.3d 669, 673 (9th Cir. 2020). “Summary judgment is 

appropriate when, based on the evidence in the record, no 

reasonable fact finder could return a verdict” for the party 

against whom summary judgment is granted. See id.; Fed. 

R. Civ. P. 56. “We may affirm on any basis supported by 

the record, whether or not relied upon by the district court.” 

Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th Cir. 

2007).

III. ANALYSIS

The FCRA prohibits CRAs from reporting “[a]ny . . . 

adverse item of information, other than records of 

convictions of crimes[,] which antedates the report by more 

than seven years.” § 1681c(a)(5). The FCRA imposes 

liability for negligent or willful violations of its terms. 

§§ 1681n(a), 1681o. At issue is whether Defendant was 

negligent or willful in adopting an interpretation of 

§ 1681c(a)(5), which we subsequently held was erroneous, 

that permitted the reporting of a dismissal of a charge that 

had been filed more than seven years from the date of the 

of his argument or advance a specific and distinct argument that 

Defendant willfully or negligently violated that statute. Plaintiff’s 

opening brief does not cite § 1681e. Plaintiff does not argue that 

Defendant’s report was inaccurate. Cf. § 1681e(b). And, while his 

opening brief refers to Defendant’s compliance procedures, Plaintiff uses 

that discussion to argue that Defendant’s violation of § 1681c(a) was 

willful, not to challenge the district court’s holding as to § 1681e(a).
MORAN V. THE SCREENING PROS 13

report, where the dismissal occurred within seven years of 

the report.7

“To prove a negligent violation [of the FCRA], a plaintiff 

must show that the defendant acted pursuant to an 

objectively unreasonable interpretation of the statute.”

Marino, 978 F.3d at 673–74 (citing Syed v. M-I LLC, 

853 F.3d 492, 505 (9th Cir. 2017)). A plaintiff can prove a 

willful violation by showing a knowing or a reckless 

violation of a standard. Safeco Ins. Co. of Am. v. Burr, 

551 U.S. 47, 57 (2007). To prove a willful violation in the 

absence of knowing disregard, “a plaintiff must show not 

only that the defendant’s interpretation was objectively 

unreasonable, but also that the defendant ran a risk of 

violating the statute that was substantially greater than the 

risk associated with a reading that was merely careless.” 

Marino, 978 F.3d at 673 (citing Safeco, 551 U.S. at 69). 

Where a statute “is not subject to a range of plausible 

interpretations” and its text “unambiguously forecloses” the 

defendant’s interpretation, the defendant runs “an 

‘unjustifiably high risk of violating the statute’” sufficient 

for willful liability. Syed, 853 F.3d at 505–06.

7 Various headings in Plaintiff’s briefing assert that Defendant 

violated § 1681c(a)(2), as well as § 1681c(a)(5). The district court 

dismissed Plaintiff’s § 1681c(a)(2) claims. Moran v. Screening Pros, 

LLC, No. 2:12-CV-05808-SVW-AGR, 2012 WL 10655745, at *4–5 

(C.D. Cal. Nov. 20, 2012). Subsequently, on Plaintiff’s previous appeal, 

Plaintiff “agree[d] that the 2000 Charge is classified as an ‘adverse item 

of information’ and thus falls under § 1681c(a)(5).” Moran, 943 F.3d at 

1182. Plaintiff does not now provide a clear argument that Defendant 

violated § 1681c(a)(2). We note that the Report makes no reference to 

any “[c]ivil suits, civil judgments, [or] records of arrest,” § 1681c(a)(2). 

We therefore limit our discussion to § 1681(c)(a)(5), since Plaintiff has 

waived any argument regarding § 1681c(a)(2). See Clark, 523 F.3d 

at 1116; In re Riverside-Linden Inv. Co., 945 F.2d at 324–25.
14 MORAN V. THE SCREENING PROS

Plaintiff argues that Defendant was at least negligent 

because “this Court found Defendant’s interpretation [of 

§ 1681c(a)] to be in direct conflict with the plain language 

of the statute” and “confirmed that the statutory text is 

unambiguous that the reporting period began from the date 

of entry.” However, our previous holding does not show that 

Defendant’s interpretation of the statute was objectively 

unreasonable. To be sure, we stated “the plain language of 

the statute suggests that for a criminal charge, the date of 

entry begins the seven-year window.” Moran, 943 F.3d at 

1183–84. But that sentence began with the observation that 

“§ 1681c(a)(5) does not specifically state the date that 

triggers the reporting window.” Id. at 1183. Moreover, the 

panel majority did not rely on the text of the statute alone to 

reach its interpretation. The majority remarked that if 

“language is ambiguous, we look to . . . legislative history, 

and the statute’s overall purpose to illuminate Congress’s 

intent,” id. at 1183 (internal quotation marks omitted), and 

then supported its holding with numerous extra-textual 

sources: “the FTC’s interpretation of the statute” in a 2011 

staff report, the “FCRA’s legislative history,” an amicus 

brief filed by the Consumer Financial Protection Bureau and 

the FTC, and the panel’s assessment of “the purpose of the 

FCRA.” Id. at 1184–86. In fact, the only panel member who 

stated that “there is no ambiguity in the statute” was Judge 

Kleinfeld in partial dissent, who argued that the majority’s 

interpretation lacked “support in the text of the statute.” Id.

at 1187, 1194.

Plaintiff also argues that because the 1998 amendment 

removed the phrase “the date of disposition” from what was 

previously § 1681c(a)(5), “anybody reading the statute 

should know [that] Congress no longer wished to calculate 

the reporting period [from the date of disposition] when it 

intentionally deleted the word ‘disposition’ from the 
MORAN V. THE SCREENING PROS 15

statutory language.” But although Congress removed “the 

date of disposition” as the reference date, it did not replace 

that phrase with another reference date in § 1681c(a)(5), 

even though a different provision of the statute, 

§ 1681c(a)(2), explicitly measures a reporting window 

“from the date of entry.” And when we held that the sevenyear reporting window in § 1681c(a)(5) regarding a 

dismissal of a charge is measured from the date the criminal 

charge was filed, not when it was dismissed, the panel was 

not unanimous.

Finally, Plaintiff argues that “[i]t was reckless for 

Defendant to rely on [the] outdated 1990 commentary.” 

While the 1990 Commentary necessarily addressed the law 

as it was written before the 1998 amendment, it was the only 

guidance from the FTC on this issue in 2010 when 

Defendant issued the Report, and it indicated that the sevenyear reporting period ran from the date of disposition of a 

criminal charge. That guidance was rescinded only after 

Defendant issued the disputed report. And Defendant 

introduced evidence that the statute had “been interpreted for 

decades to permit” CRAs to report the dismissal of a charge 

where the dismissal occurred within seven years from the 

report.8

8 In the operative complaint, Plaintiff brought state law claims under 

California’s Investigative Consumer Reporting Agencies Act and 

California’s Unfair Competition Law. In briefing, Plaintiff suggests that 

Defendant’s reporting of dismissed charges violated California’s 

Consumer Credit Reporting Agencies Act (“CCRAA”). These state law 

allegations are not the subject of this appeal, and we do not reach them. 

We also reject Plaintiff’s argument that Defendant’s violation of 

§ 1681c(a) was somehow willful because Defendant had a written policy 

designed to comply with the CCRAA. Even if Defendant willfully 

violated the CCRAA, or its own policy designed to comply with 
16 MORAN V. THE SCREENING PROS

Whether Defendant correctly interpreted § 1681c(a)(5) 

to permit the reporting of a criminal charge that was filed 

outside of, but dismissed within, the statute’s seven-year 

window arose as a matter of first impression during this 

lawsuit. Defendant introduced evidence that its 

interpretation was consistent with industry norms. The 

FTC’s only guidance on the question at the time (although 

discussing the statute before the 1998 amendment) appeared 

to permit reporting the charge. The district court initially 

held that Defendant misread § 1681c(a)(5), but then reversed 

that holding on reconsideration. On appeal, the panel 

majority held that the district court got it right the first time, 

but one of our colleagues dissented, finding that the 

majority’s view lacked “support in the text of the statute,” 

Moran, 943 F.3d at 1187 (Kleinfeld, J., concurring in part 

and dissenting in part). We cannot say, nor could any other 

reasonable fact finder, that on this record Defendant’s 

violation of § 1681c(a)(5) was negligent, much less willful.

IV. CONCLUSION

For the reasons stated above, the district court’s grant of 

summary judgment to Defendant on Plaintiff’s claims under 

the FCRA is AFFIRMED.

California law, it does not follow that Defendant’s violation of the FTCA 

was willful. Here, Defendant has shown that its conduct resulted from 

an erroneous but reasonable misreading of the language of the FTCA.