Hoke v. Retail Credit Corp.
| Decision Date | 19 August 1975 |
| Docket Number | No. 74-2358,74-2358 |
| Citation | 521 F.2d 1079 |
| Parties | Harold Reed HOKE, M.D., Appellant, v. RETAIL CREDIT CORPORATION et al., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Michael E. Weddington, Raleigh, N. C. (James D. Blount, Jr., Smith, Anderson, Blount & Mitchell, Raleigh, N. C., on brief), for appellees.
Before HAYNSWORTH, WINTER and CRAVEN, Circuit Judges.
Suing under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1671 Et seq., 1 Dr. Harold Reed Hoke sought damages from Retail Credit Corporation (Retail Credit) and two of its employees 2 for injuries allegedly sustained from inaccurate information contained in a personal report issued by Retail Credit to the Texas Board of Medical Examiners. The Board had requested the report to aid in its assessment of Dr. Hoke's application for a license to practice medicine in Texas. The district court rendered summary judgment in favor of the defendants, concluding that the plaintiffs could not prevail as a matter of law because the report was not a "consumer report" within the meaning of FCRA. 3 Since, in our view, the report was a "consumer report" covered by FCRA we reverse and remand for further proceedings consistent with this opinion.
The case turns on FCRA's definition of "consumer report." In pertinent part, § 1681a(d) provides:
(d) The term "consumer report" means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (1) credit or insurance to be used primarily for personal, family, or household purposes, or (2) employment purposes, or (3) other purposes authorized under section 1681b of this title. . . . 4
A consumer report, therefore, is virtually any information communicated by a "consumer reporting agency" for any one of the purposes enumerated in 1681a and 1681b, including but not limited to, "employment purposes" (§ 1681a(d) and § 1681b(3)(B)) and eligibility for a government license or benefit (§ 1681b(3)(D)). Since there can be no question but that Retail Credit is a consumer reporting agency within the terms of the FCRA, 5 we must decide whether the allegedly inaccurate information was furnished by Retail Credit for one or more of the purposes specified in §§ 1681a and 1681b.
We consider first if the furnishing of the report was for "employment purposes" within the meaning of §§ 1681a(d) and 1681b(3)(B). 6
The purpose of the Texas licensing procedure is to assess and certify Dr. Hoke's fitness and eligibility to practice medicine within the state of Texas. Although the terminology customarily used with regard to the employment of persons engaged in ordinary commercial activities is sometimes ill-suited to a description of the practice of a learned profession, in the context of FCRA the practice of medicine necessarily takes the form of some type of "employment." A physician may accept full or part-time employment as a physician by a hospital, clinic, medical school, or professional association. In those instances he is an employee, albeit a professional one. If he concludes to practice his profession as a single practitioner or as a member of a medical partnership, we still consider him as "employed," either self-employed or employed by the patients who pay him fees for the medical services that he provides. 7 And since the Sine qua non to the practice of medicine in Texas, and elsewhere, is a license to practice medicine, and since the information furnished by Retail Credit related to the question of whether the license would be granted, we have no hesitancy in concluding that the information was furnished for "employment purposes" in the broad generic sense of the words.
The statutory definition of employment purposes within the Act is (15 U.S.C. § 1681a(h)):
The term "employment purposes" when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.
The statutory definition adopts the generic meaning of the words defined. We note, of course, the concluding words of this definition "as an employee." It might be argued that the term "employment purposes" is restricted to the situation in which information is sought by an actual or prospective employer, e. g., if the Texas Licensing Board were to hire Dr. Hoke itself. But we think not. Such an argument assumes that the phrase "as an employee" modifies both "retention" And the words preceding it "employment, promotion, reassignment." We think it modifies only "retention." The words "employment, promotion, (and) reassignment," having specific meanings in the area of activities for the production of income, need no modifier. By contrast, "retention," a word of varied meanings in varied contexts, does. Hence, we conclude that the statutory and generic definitions of the operative words are congruent and that furnishing information in the present circumstances brought Retail Credit under the terms of FCRA.
The report involved here is also a consumer report under §§ 1681a(d)(3) and 1681b(3)(D). We reach this conclusion from the actual language of §§ 1681a(d) and 1681b(3)(D) and from the presence of § 1681f, its legislative history, and its place in the overall statutory scheme. Section 1681b(3)(D) provides:
A consumer reporting agency may furnish a consumer report under the following circumstances and no other:
(3) To a person which it has reason to believe
(D) intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality Required by law to consider an applicant's financial responsibility or status . . . . (Emphasis added.)
Retail Credit asserts that the report involved here is not a "consumer report" under those sections. Its argument is that § 1681a(d) incorporates all of the language contained in § 1681b(3)(D), including the requirement that the governmental agency to which the report is furnished be "required by law to consider an applicant's financial responsibility or status." Since the Texas State Board of Medical Examiners, under the evidence adduced on the motion, is not required by law to be concerned with plaintiff's financial responsibility or status, so the argument runs, the information furnished could not constitute a "consumer report." 8 We disagree.
While § 1681a is a purely definitional section, § 1681b is, as its title states, a list of the "permissible purposes of consumer reports." Only secondarily does § 1681b(3)(D) supplement § 1681a's definition of what is a "consumer report," and then only according to the language in the latter and not because of an additional specific definition in § 1681b.
What is most significant is that § 1681a(d), in listing the purposes which render the furnishing of information a "consumer report" speaks in terms of "eligibility for . . . (the) purposes authorized under section 1681b. . . . ." Translated to the facts of this case, § 1681a(d)(3) may be read to mean that the furnishing of information about an individual to serve as a factor for a determination of plaintiff's eligibility for a license to practice medicine renders the report a "consumer report," irrespective of the actual authority of the Texas licensing board to consider financial responsibility or status, or Retail Credit's reasonable belief as to the board's authority. The matter of the board's authority to consider financial responsibility or status, or Retail Credit's reasonable belief as to the board's authority in that respect, is significant only to Retail Credit's statutory right to furnish the information, not as to whether the information furnished is a "consumer report." 9 We so read it. It is not necessary to read § 1681a(d)(3) as incorporating all of the minutiae of § 1681b(3)(D), only the general subject matter.
There is a compelling reason to read § 1681a(d)(3) as incorporating only the general subject matter (but not all specific detail) of § 1681b(3)(D). A reading which separates restrictive and definitional aspects of § 1681b(3)(D) is necessary to give meaning and effect to § 1681f, which provides:
Notwithstanding the provisions of section 1681b of this title, a consumer reporting agency may furnish identifying information respecting any consumer, limited to his name, address, former addresses, places of employment, or former places of employment, to a governmental agency.
If § 1681a(d)(3), the definitional provision, is read to incorporate all of the restrictive detail of § 1681b(3)(D), § 1681f would be rendered superfluous, because a consumer reporting agency (Retail Credit) could report the information authorized by § 1681f, and more, with impunity, if it could establish that the governmental agency to which it reported was not required by law to consider an applicant's financial responsibility or status and, hence, that the information reported was not a "consumer report" within the meaning of § 1681a(d). Section 1681b(3)(D) would, in effect, restrict the coverage of FCRA rather than the activities of consumer reporting agencies.
The legislative history belies this result. The Senate committee report explained the relationship between the two sections in this way:
The disclosure of information to governmental agencies is limited to identifying type information . . . unless the governmental agency has obtained a court order or is a bona fide creditor, insurer, employer, or licensor." Report of the Committee on Banking and Currency, Fair Credit Reporting,...
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