Ilodianya v. Capital One Bank USA NA, ED Ark.

Can you pursue private rights to declaratory judgments and relief under the FCRA?
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David A. Szwak
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Ilodianya v. Capital One Bank USA NA, ED Ark.

Post by David A. Szwak »

. Declaratory Relief? Ilodianya also asks for declaratory relief. More specifically, he asks the Court to order Capital One “to correct any remaining such false information that is at issue[.]” Document No. 1–1. Capital One argues that this is really a request for an injunction, which it says is not allowed under the FCRA. Ilodianya maintains that he wants a declaration, not an injunction.

[4] Headnote Citing References[5] Headnote Citing References[6] Headnote Citing References A declaratory judgment is a “binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement.” Black's Law Dictionary (9th ed. 2009); see also 28 U.S.C. § 2201(a). An injunction, on the other hand, “orders an affirmative act or mandates a specified course of conduct.” Black's Law Dictionary (9th ed. 2009); see also Fed.R.Civ.P. 65. But here we should, as Holmes said, think things, not words. Ilodianya wants the Court to order Capital One to scrub any remaining mistakes off his credit report. Document No. 1–1 at 13. This is the essence of injunctive, not declaratory, relief.

Whether injunctive relief is available to a private plaintiff under the FCRA is another open question in our Circuit. Only one Court of Appeals appears to have decided the point. The Fifth Circuit has held that

the affirmative grant of power to the FTC to pursue injunctive relief, coupled with the absence of a similar grant to private litigants when they are expressly granted the right to obtain damages and other relief, persuasively demonstrates that Congress vested the power to obtain injunctive relief solely with the FTC.

Washington v. CSC Credit Services Inc., 199 F.3d 263, 268 (5th Cir.2000). Writing for the Sixth Circuit, Judge Sutton stuck a cautionary note about Washington in some careful dicta. Beaudry v. TeleCheck Services, Inc., 579 F.3d 702, 708–09 (6th Cir.2009). District courts have divided, with recent decisions tending to follow Washington. E.g., Young v. HSBC Mortgage Services, Inc., No. 4:07CV646 HEA, 2007 WL 2083680, at *1 (E.D.Mo. 13 July 2007) (collecting cases); Washington, 199 F.3d at 268 (same).

[7] Headnote Citing References While there is a solid argument and authority to the contrary, this Court is persuaded that Washington reads the Fair Credit Reporting Act correctly. Congress provided for injunctions in other parts of the Act but did not do so in the sections specifying the remedies available to aggrieved individuals like Ilodianya. Expressio unius est exclusio alterius. Injunctive relief is thus not available to private plaintiffs in an FCRA action. Capital One's motion is granted on this point; and *776 the Court dismisses Ilodianya's request for an injunction styled as a declaration.

So Ordered.

Ilodianya v. Capital One Bank USA NA
853 F.Supp.2d 772
February 15, 2012
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
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Chairman, Consumer Protection Section, Louisiana State Bar Association
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