author: MURPHY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Bruce Charles TOLLEFSON, Defendant-Appellant
    No. 16-1903
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 6, 2017
    Filed: April 6, 2017

      Counsel who represented the appellant was Steven R. Morrison of Grand Forks, ND.
    Counsel who represented the appellee was Brett M. Shasky, AUSA, of Fargo, ND.
    Before BENTON, BEAM, and MURPHY, Circuit Judges.
   MURPHY, Circuit Judge.

Bruce Tollefson pled guilty in 2005 to one count of conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846 and one count of violent crime in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(3). The district court sentenced him to 227 months imprisonment. In 2015 Tollefson moved for a sentence reduction based upon amendment 782 to the sentencing guidelines which reduced base offense levels by two for crimes involving controlled substances. The district court denied the motion. Tol-lefson appeals, and we affirm.

I.

Beginning in 2000, Tollefson conspired with others to distribute cocaine, methamphetamine, and marijuana. The members of the conspiracy would use violence and threats of violence to promote their drug activities. For example, during the course of the conspiracy Tollefson asked Charles Dewald to assault a coconspirator in order to prevent him from sharing information with the police. Dewald thereafter cut the coconspirator’s throat with a knife. Although the coconspirator survived, the wound required approximately twenty sutures to close.

In 2005 Tollefson pled guilty to one count of conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of violent crime in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(3). At sentencing the district court determined that his total offense level was 40 and that his criminal history category was II, resulting in a guideline range of 324 to 405 months imprisonment. The district court departed downward and sentenced Tollefson to 227 months, which accounted for 13 months Tollefson had served in state prison.

In 2014 the Chief Judge of the District of North Dakota issued a standing order appointing the Office of the Federal Public Defender for the Districts of South Dakota and North Dakota to represent all defendants in North Dakota “who may be eligible to seek a reduced sentence based upon retroactive application of Amendment 782” to the sentencing guidelines. Amendment 782 reduced base offense levels by two for crimes involving cocaine, methamphetamine, marijuana, and other controlled substances. U.S.S.G., app. C, amend. 782. Amendment 788 made amendment 782 retroactive. U.S.S.G., app. C, amend. 788.

On May 15, 2015 Tollefson filed a pro se motion for a sentence reduction under 18 U.S.C. § 3582(c) based upon amendment 782. Tollefson argued that his new offense level was 38, making his new guideline range 262 to 327 months. After detailing his rehabilitation efforts in prison, Tollef-son requested a new sentence of 165 months. On November 23, 2015 Tollefson’s federal public defender filed a supplement to his pro se motion. The public defender requested a new sentence of 183 months, amounting to the same percentage reduction from the bottom end of the amended guideline range as his original sentence had been from the bottom end of the original guideline range. The government objected to any reduction to Tollefson’s sentence.

On March 1, 2016 the district court denied Tollefson’s motion for a sentence reduction. The court first noted that “Tollef-son is eligible for a sentence reduction” under amendment 782, but it denied the reduction after considering “the policy statements issued by the Sentencing Commission and the factors set forth in 18 U.S.C. § 3553(a).” Tollefson filed a pro se motion to reconsider, which the district court denied. Tollefson appeals.

II.

Tollefson argues that the district court violated his Sixth Amendment right to proceed pro se when it “forced [counsel] upon him such that Tollefson had no opportunity to present his case in his own way.” We review de novo this constitutional challenge. See United States v. Fernandez, 710 F.3d 847, 849 (8th Cir. 2013) (per curiam). Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that the Sixth Amendment protects the right of a defendant “to proceed without counsel when he voluntarily and intelligently elects to do so.”

The Supreme Court has since held that its holding in Faretta “was confined to the right to defend oneself at trial” and that the “Sixth Amendment does not include any right to appeal.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 154, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). The Court based this holding on the fact that the text of the Sixth Amendment limits its protection to the “preparation for trial and at the trial itself’ and that the right of appeal “is purely a creature of statute.” Id at 160, 120 S.Ct. 684 (internal quotation marks omitted). This reasoning applies equally to postconviction sentence reduction proceedings. The Supreme Court has also held that a pro se defendant’s Sixth Amendment rights are not violated by the “unsolicited participation” of standby counsel “outside the presence of the jury.” McKaskle v. Wiggins, 465 U.S. 168, 179, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). The district court therefore did not violate Tol-lefson’s Sixth Amendment rights.

Tollefson also argues that the district court violated his due process right to be heard because it appointed the federal public defender to represent him. We review Tollefson’s due process arguments de novo. See Fernandez, 710 F.3d at 849. To comply with its due process obligations, a district court must provide a defendant “adequate notice and reasonable opportunity to be heard.” Stump v. Bennett, 398 F.2d 111, 114 (8th Cir. 1968) (en banc). The Supreme Court in Martinez held that defendants do not have a due process right to self representation on direct appeal of their convictions. 528 U.S. at 160, 120 S.Ct. 684. Similar to the right to proceed pro se, we find no reason why we should not extend the holding of Martinez to postcon-viction sentence reduction proceedings.

Tollefson argues that the district court also violated his due process right to be heard because the court waited to rule on his pro se motion for a sentence reduction until his appointed counsel filed a supplemental motion. A district court is not required “to entertain pro se motions filed by a represented party.” Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001). Tollefson was represented at the time he filed his pro se motion and did not indicate his intent to reject assistance from the federal public defender’s office until after his attorney filed the supplemental motion. The district court thus did not violate Tollefson’s due process rights.

Tollefson additionally argues that his attorney provided ineffective assistance. Because Tollefson had no right to counsel during his postconviction sentence reduction proceedings, he cannot assert a “valid claim for ineffective assistance.” See United States v. Edelmann, 458 F.3d 791, 803 (8th Cir. 2006).

III.

Tollefson next argues that the district court improperly denied his motion for a sentence reduction. We review de novo a district court’s determination of whether a defendant is “eligible for a sentence- reduction under 18 U.S.C. § 3582(c)(2).” United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012). A district court’s decision “to reduce a sentence and the extent of any reduction,” however, is reviewed “for an abuse of discretion.” United States v. Burrell, 622 F.3d 961, 964 (8th Cir. 2010).

If the Sentencing Commission reduces a defendant’s sentencing range, a district court may reduce the defendant’s term of imprisonment “after considering the factors set forth in [§ ] 3553(a) ... if such a reduction is consistent with applicable policy statements issued by the” Commission. 18 U.S.C. § 3582(c)(2). The district court must engage in a two part analysis. First, it must determine “’the amended guideline range that would have been applicable to the defendant’ had the relevant amendment been in effect at the time of the initial sentencing.” Dillon v. United States, 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting U.S.S.G. § 1B1.10(b)(1)). The court must then “consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.” Id.

Tollefson first argues that the district court erred by determining that he was categorically ineligible for a sentence reduction. The record belies this argument. The district court’s order stated “Tollefson is eligible for a sentence reduction under Amendment 782.” It also correctly applied step one of the § 3582(c)(2) analysis by indicating that Tollefson’s amended guideline range was 262 to 327 months. It then denied Tollefson relief under step two after considering the § 3553(a) factors, the offense conduct, and his “post-sentencing accomplishments.” The district court therefore did not consider Tollefson categorically ineligible for a sentence reduction.

Tollefson also argues that the district court committed procedural error by failing to consider his postsentencing rehabilitation. “Although a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing, it is not required to adjust a sentence.” United States v. Hernandez-Marfil, 825 F.3d 410, 412 (8th Cir. 2016) (per curiam) (emphasis in original) (internal quotation marks omitted). The district court did not abuse its discretion here because it acknowledged Tollefson’s postsentencing rehabilitation efforts. See id. at 412-13.

Finally, Tollefson argues that the district court’s denial of his motion for a sentence reduction resulted in the imposition of an increased sentence and that the district court did not adequately explain this new sentence. Although Tollefson was eligible for a sentence reduction, “§ 3582(c)(2) does not create a right to it.” See Hernandez-Marfil, 825 F.3d at 412. The district court therefore did not create a new sentence when it declined to modify his sentence.

IV.

For these reasons we affirm the district court’s order.

      . The Honorable Ralph R. Erickson, then Chief Judge, United States District Court for the District of North Dakota.


source: Caselaw Access Project

author: GRUENDER, Circuit Judge.

license: Public Domain

text:
    Christopher WHITE, Petitioner-Appellant v. Troy STEELE, Defendant-Appellee
    No. 16-2349
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 9, 2017
    Filed: April 6, 2017

      Counsel who presented argument on behalf of the appellant was Kevin L. Schriener, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Katharine Anne Dolin, AAG, of Jefferson City, MO.
    Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and SCHREIER, District Judge.

      .The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

      . The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation.

   GRUENDER, Circuit Judge.

Christopher White was convicted of first-degree murder, armed criminal action, and first-degree assault following a jury trial in Missouri state court. White petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the State failed to disclose that a key prosecution witness received favorable consideration in exchange for his testimony. The district court denied White’s petition, and we affirm.

I.

On the morning of June 21, 2002, three men with guns approached the house of Freddie Chew. Chew drew his gun and fired one shot at the men. In response, the men shot and killed Chew. Jeffrey Shockley, a friend of Chew who was present at the scene, later identified White as one of the shooters.

Shockley testified at White’s trial in January 2004. At the time, Shockley had state felony charges pending against him for possession of cocaine and unlawful use of a weapon. On cross-examination, Shockley admitted that these state charges were pending. On re-direct, he testified that he had not received a deal from the State and did not expect to “get anything” in exchange for his testimony. The jury found White guilty of all charges, and he was sentenced to life without parole. Later, Shockley pleaded guilty to his state felony charges and received a suspended imposition of sentence and one year of unsupervised probation.

On direct appeal, White argued that a delay in his prosecution violated his right to a speedy trial, that the trial court erred in overruling his objections to the jury instructions, and that the trial court erred in preventing defense counsel from cross-examining Shockley about whether he was returning to his house to obtain drugs to sell. The Missouri Court of Appeals affirmed White’s conviction. White then filed a motion for state post-conviction relief with the Missouri trial court under Missouri Supreme Court Rule 29.15, alleging ineffective assistance of counsel. The trial court denied the motion, and the Missouri Court of Appeals affirmed.

In February 2008, White filed a federal habeas petition, reasserting the four grounds for relief previously raised in the state courts. After White filed his habeas petition, one of his fellow prisoners, Darryl Smallwood, provided him with an internal public defender conflict-of-interest form regarding his co-defendant, Juane Kennell. Kennell’s counsel had written on the form that he “learned that [Shockley’s counsel] has negotiated a deal for Jeff Shockley to testify against [Kennell] ... as well as possibly another defendant, Christopher White.” White’s counsel then obtained Shockley’s guilty plea transcript, which did not mention a plea agreement but which revealed that the State had paid to relocate Shockley from his neighborhood.

On the basis of the conflict-of-interest form and the guilty plea transcript, White amended his habeas petition in September 2009. He added a claim that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose the existence of a deal with Shockley, and he added a claim that the State violated Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by failing to correct Shockley’s testimony that he did not receive a deal. White also maintained his speedy trial and ineffective assistance claims but abandoned his other two claims. By affidavit, White asserted that he had received the conflict-of-interest form in January 2009.

The district court held that White’s Brady and Napue claims were not time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) because they were brought within one year of January 2009, which the court determined was “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” See 28 U.S.C. § 2244(d)(1)(D). Nevertheless, the district court denied White’s amended petition, holding that all of White’s claims failed on the merits.

White timely filed a motion to alter or amend the judgment, contending that his habeas petition was denied before he had completed discovery on his Brady claim. As a result, the district court granted White an evidentiary hearing. During the hearing, White and Smallwood both mentioned that Smallwood had given the conflict-of-interest form to White in 2007 or 2008. Shockley’s former defense counsel, Robert Taaffe, testified that he never obtained a plea agreement for Shockley and that there was no “secret deal.” Rather, he explained that around the time the conflict-of-interest form was dated, the State had made an offer to Shockley, but Shockley declined the offer because it required him to testify against his brother in another case. Nevertheless, based on his notes from the time he represented Shockley, Taaffe suggested that the prosecutor in White’s case “hinted at a nolle,” meaning that the charges would be dismissed. The prosecutor also testified and unequivocally denied making any such hint.

After the hearing, the State disclosed expense records showing that, in 2002, the St. Louis Circuit Attorney’s Victim Services Unit had paid for Shockley to stay at a hotel for one week and later paid him just over $1,000 to help him relocate to an apartment in another neighborhood. Despite this additional evidence, the district court denied White’s motion to alter or amend the judgment. Once again, the court held that White’s Brady and Napue claims failed on the merits, but it issued a certificate of appealability on the two claims.

II.

On appeal, White argues that the district court erred in denying his Brady and Napue claims. The State responds that White’s claims are time-barred, procedurally defaulted, and without merit. “On appeal of a district court’s denial of a § 2254 petition, we review the district court’s findings of fact for clear error and its conclusions of law de novo.” Wright v. Bowersox, 720 F.3d 979, 983 (8th Cir. 2013).

A.

The State first argues that White’s Brady and Napue claims are barred by AED-PA’s one-year statute of limitations. That provision requires a habeas petitioner to raise claims within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). White raised his Brady and Napue claims in his amended petition in September 2009, and the district court held that the petition was timely because it found that White discovered the conflict-of-interest form in January 2009. It based this finding on White’s affidavit stating that he received the form in January 2009.

The State contends that White’s affidavit is refuted by the subsequent evidentia-ry hearing, in which he and Smallwood both testified that White received the form in either 2007 or 2008. However, these statements alone do not prove that the district' court’s finding was clearly erroneous. Neither White nor Smallwood remembered the exact date that White received the form. In fact, White also testified that he received it after he filed his original habeas petition. Because he filed that petition on February 29, 2008, this means he could not have received the form in 2007. Moreover, as the State acknowledges, Smallwood’s testimony was inconsistent, and he admitted to lying about who gave him the form.

At most, it is unclear when White received the form. But even where we have reason to doubt compliance with the statute of limitations, we may proceed to the merits in the interest of judicial economy. See Shelton v. Purkett, 563 F.3d 404, 407 (8th Cir. 2009) (“[Ijnstead of remanding for further development of the non-jurisdictional statute of limitations defense, we proceed directly to the merits of Shelton’s habeas corpus petition.”); Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006) (holding that even though “[i]t is doubtful that Trussell filed his petition within the one-year limitations period ... we shall, in the interest of judicial economy, proceed to the merits of Trussell’s petition”). Accordingly, we proceed to address the merits of White’s claims.

B.

“Under Brady v. Maryland, ‘suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ ” United States v. Pendleton, 832 F.3d 934, 940 (8th Cir. 2016) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). “[E]videnee is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Keys, 721 F.3d 512, 520 (8th Cir. 2013) (quotations omitted). “A reasonable probability of a different result is shown when the government’s failure to disclose undermines confidence in the outcome of the trial.” United States v. Jeanpierre, 636 F.3d 416, 423 (8th Cir. 2011) (citation omitted).

Brady’s, disclosure mandate extends to “agreements or understandings between the government and a witness for leniency in exchange for testimony.” United States v. Rushing, 388 F.3d 1153, 1158 (8th Cir. 2004) (citing Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). And, under Napue v. Illinois, “a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction.” Napue, 360 U.S. at 269, 79 S.Ct. 1173.

1.

The district court found “from a review of the evidence, and after having an opportunity to observe the demeanor of the witnesses at the habeas hearing, that no formal or tacit agreement existed between the state and Shockley.” Nothing in the record suggests that this factual finding was clearly erroneous.

At the evidentiary hearing, Kennell’s counsel testified that the notation he made on his conflict-of-interest form may have meant only that Taaffe told him “we’re trying to negotiate a plea agreement.” Taaffe verified that he did try to negotiate a plea agreement and that Shockley received a plea offer. However, Shockley rejected the offer, and we do “not require disclosure of rejected plea offers; the duty to disclose is dependent upon the existence of an agreement between the witness and the government.” Rushing, 388 F.3d at 1158.

In addition, although Taaffe testified that the prosecutor “hinted at a nolle,” he clarified that he did not believe that a “secret deal” existed. The prosecutor steadfastly denied making any such hint, and the court found his testimony credible. Moreover, there was no “nolle.” The prosecution did not dismiss the charges after Shockley testified at White’s trial, and Taaffe did not mention any contrary understanding at sentencing. Rather, Taaffe stressed to the sentencing judge that there was “no agreement” and “no quid pro quo” in exchange for Shockley’s testimony against White.

White also points out that Shockley reached an agreement with the State to testify against his brother in an unrelated case, and he argues that the jury should have heard about this agreement because it would demonstrate Shockley’s willingness to make any deal to stay out of prison. However, there is no evidence regarding any of the terms of this agreement. During the evidentiary hearing, Shockley admitted that he agreed to testify against his brother, but he denied that he did so in order to receive anything in return. Rather, he insisted that his brother had instructed him to testify.

In sum, the district court did not clearly err in finding that Shockley received no hint, deal, or agreement promising favorable consideration in exchange for his testimony against either White or his brother. Without any such agreement, there is nothing that the State could have suppressed. As a result, the State also could not have knowingly used false testimony, because Shockley’s testimony that he did not receive a deal or expect to “get anything” was not false. Indeed, without a hint or deal, even if Shockley did expect to get something, the State could not have known of Shockley’s expectation. Accordingly, the State did not violate Brady or Napue by failing to disclose an agreement that did not exist.

2.

The district court assumed that the financial assistance provided to Shockley for staying in a hotel for one week and ■relocating to another apartment was Brady material that should have been disclosed. Likewise, we assume without deciding that this financial assistance was subject to Brady’s disclosure mandate. Nevertheless, the failure to disclose this financial assistance did not violate Brady because it does not undermine confidence in the verdict.

At the evidentiary hearing, Shockley explained that the police moved him to the hotel because he had been receiving threats. He also testified that he received food vouchers but that he did not know who paid for either the hotel or the vouchers and that he never received cash or anything else of value. The assistance with relocating to a new apartment was not discussed at the evidentiary hearing, but at Shockley’s sentencing, Taaffe explained to the sentencing judge that “[h]is life has been threatened” and that the State “moved him” so that “he’s out of that element.”

White contends that we found a Brady violation in similar circumstances in United States v. Librach, but that case involved cash payments that provided the witness with an incentive to testify. See 520 F.2d 550, 554 (8th Cir. 1975) (“We have no doubt that evidence of payments of nearly $10,000 to a witness in circumstances providing him an incentive to change his testimony is favorable and material to the defense. ...”). Here, there is no evidence that this financial assistance provided Shockley with an incentive to testify. Rather than cash, Shockley received a hotel stay, food vouchers, and assistance moving out of a neighborhood where he was receiving threats. Shockley received this assistance in 2002, and White’s trial did not occur until January 2004. Furthermore, Shockley testified that he did not know who paid for this assistance and that, in any case, he was motivated to testify in order to get “revenge” for his friend Chew’s death.

Moreover, as the district court noted, disclosure of this assistance actually could have hurt White’s defense at trial. Specifically, evidence that Shockley received threats could have invited testimony or speculation by the jury that White had urged individuals to harm Shockley to prevent him from testifying. Under these circumstances, we detect no error in the district court’s conclusion that this nondisclosure does not undermine confidence in the verdict. Accordingly, the State did not violate Brady by failing to disclose this financial assistance.

III.

For the foregoing reasons, we affirm the denial of White’s petition for habeas corpus.

      . The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri.

      . Shockley admitted that at some point he agreed to testify against his brother, but he denied that he did so in order to receive favorable treatment on his own charges.

      . Likewise, although the State argues that White's claims have been procedurally defaulted, we decline to address this issue. See Dodge v. Robinson, 625 F.3d 1014, 1017 n.1 (8th Cir. 2010) ("Since we can dispose of both claims on the merits, we do not address the issue of procedural default.”); see also 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).


author: WARDLAW, Circuit Judge:

text:
    Sarmad SYED, an individual, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. M-I, LLC, a Delaware Limited Liability Company; PreCheck, Inc., a Texas Corporation, Defendants-Appellees.
    No. 14-17186
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 17, 2016 San Francisco, California
    Filed January 20, 2017
    Amended March 20, 2017

      Peter R. Dion-Kindem (argued), Peter R. Dion-Kindem P.C., Woodland Hills, California; Lonnie C. Blanchard, III, The Blanchard Law Group, Los Angeles, California; for Plaintiff-Appellant.
    Jason S. Mills (argued) and Alexis M. Gabrielson, Morgan Lewis & Bockius LLP, Los Angeles, California; Allyson N. Ho, Morgan Lewis & Bockius LLP, Dallas, Texas; Thomas M. Peterson, Morgan Lewis & Bockius LLP, San Francisco, California; Judd E. Stone, Morgan Lewis & Bock-ius LLP, Washington, D.C.; for Defendant-Appellee M-I, LLC.
    E. Michelle Drake and John Albanese, Berger & Montague, P.C., Minneapolis, Minnesota, for Amici Curiae National Association of Consumer Advocates and National Consumer Law Center.
    Daniel E. Jones, Archis A. Parasharami, and Andrew J. Pincus, Mayer Brown LLP, Washington, D.C.;' Warren Postman and Kate Comerford Todd, U.S. Chamber Litigation Center, Inc., Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States.
    Before: MARY M. SCHROEDER, KIM McLANE WARDLAW, and JOHN B. OWENS, Circuit Judges.
   ORDER

The opinion filed on January 20, 2017 is hereby amended, and an amended opinion is filed concurrently with this order.

With that amendment, the panel has unanimously voted to deny the petition for panel rehearing. Judges Wardlaw and Owens have voted to deny the petition for rehearing en banc, and Judge Schroeder has so recommended.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

Accordingly, the petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc will be entertained. The mandate shall issue forthwith.

IT IS SO ORDERED.

OPINION

WARDLAW, Circuit Judge:

The modern information age has shined a spotlight on information privacy, and on the widespread use of consumer credit reports to collect information in violation of consumers’ privacy rights. This case presents a question of first impression in the federal courts of appeals: whether a prospective employer may satisfy the Fair Credit Reporting Act’s (“FCRA”) disclosure requirements by providing a job applicant with a disclosure that “a consumer report may be obtained for employment purposes” which simultaneously serves as a liability waiver for the prospective employer and others. See 15 U.S.C. § 1681b(b)(2)(A). We hold that a prospective employer violates Section 1681b(b)(2)(A) when it procures a job applicant’s consumer report after including a liability waiver in the same document as the statutorily mandated disclosure. We also hold that, in light of the clear statutory language that the disclosure document must consist “solely” of the disclosure, a prospective employer’s violation of the FCRA is “willful” when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.

I.

A. Fair Credit Reporting Act.

Congress enacted the FCRA in 1970 in response to concerns about corporations’ increasingly sophisticated use of consumers’ personal information in making credit and other decisions. Fair Credit Reporting Act. of 1970, Pub. L. 91-508, § 602, 84 Stat. 1114, 1128. Specifically, Congress recognized the need to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). Congress thus required the use of reasonable procedures in procuring and using a “consumer report,” defined as

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 (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under [the statute].

15 U.S.C. § 1681a(d).

Congress amended the FCRA in 1996. Consumer Credit Reporting Reform Act of 1996, Pub. L. 104-208, § 2403, 110 Stat. 3009-426, 3009-431. It recognized “the significant amount of inaccurate information that was being reported by consumer re-, porting agencies and the difficulties that consumers faced getting such errors corrected.” S. Rep. No. 108-166 at 5-6 (2003) (describing 1996 amendments). Congress was specifically concerned that prospective employers were obtaining and using consumer reports in a manner that violated job applicants’ privacy rights. S. Rep. No. 104-185 at 35 (1995). The disclosure and authorization provision codified at 15 U.S.C. § 1681b(b)(2)(A) was intended to address this concern by requiring the prospective employer to disclose that it may obtain the applicant’s consumer report for employment purposes and providing the means by which the prospective employee might prevent the prospective employer from doing so — withholding of authorization. S. Rep. No. 104-185 at 35. This provision furthers Congress’s overarching purposes of ensuring accurate credit reporting, promoting efficient error correction, and protecting privacy. See Safeco, 551 U.S. at 52, 127 S.Ct. 2201. Indeed, in addition to securing job applicants’ privacy rights by enabling them to withhold authorization to obtain their consumer reports, the provision promotes error correction by providing applicants with an opportunity to warn a prospective employer of errors in the report before the employer decides against hiring the applicant on the basis of information contained in the report.

Congress prohibited procurement of consumer reports unless certain specified procedures were followed:

(2) Disclosure to consumer
(A) In general
Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless—
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.

15 U.S.C. § 1681b(b)(2)(A). Congress amended the statute in 1998 to add language providing that the authorization may be made on the same document as the disclosure. Consumer Reporting Employment Clarification Act of 1998, Pub. L. 105-347, § 2,112 Stat. 3208, 3208.

The FCRA provides a private right of action against those who violate its statutory requirements in procuring and using consumer reports. The affected consumer is entitled to actual damages for a negligent violation. 15 U.S.C. § 1681o. For a willful violation, however, a consumer may recover statutory damages ranging from $100 to $1,000, punitive damages, and attorney’s fees and costs. 15 U.S.C. § 1681n.

B. Syed’s Lawsuit Against M-I.

Syed applied for a job with M-I in 2011. M-I provided Syed with a document labeled “Pre-employment Disclosure Release.” See Appendix A. The Disclosure Release informed Syed that his credit history and other information could be collected and used as a basis for the employment decision, authorized M-I to procure Syed’s consumer report, and stipulated that, by signing the document, Syed was waiving his rights to sue M-I and its agents for violations of the FCRA. Syed’s signature served simultaneously as an authorization for M-I to procure his consumer report, and as a broad release of liability-

The liability waiver at the heart of the present dispute reads as follows:

I understand the information obtained will be used as one basis for employment or denial of employment. I hereby discharge, release and indemnify prospective employer, PreCheck, Inc., their agents, servants and employees, and all parties that rely on this release and/or the information obtained with this release from any and all liability and claims arising by reason of the use of this release and dissemination of information that is false and untrue if obtained by a third party without verification.

Appendix A.

Syed alleges that the Disclosure Release failed to satisfy the disclosure requirements mandated by 15 U.S.C. § 1681b(b)(2)(A). Syed does not contend that M-I’s form contained too little information. Instead, he argues that it contained too much. Specifically, he alleges that M-I’s inclusion of the liability waiver violated the statutory requirement that the disclosure document consist “solely” of the disclosure. See § 1681b(b)(2)(A)(i). Syed alleges that he realized M-I had violated the statute when, upon reviewing his personnel file, he noticed that M-I had procured his consumer report, in spite of the allegedly deficient disclosure with which it had provided him. He alleges that he filed the complaint within two years of reviewing his file.

On May 19, 2014, Syed filed a putative class action in district court on behalf of himself and any person whose consumer report was obtained by M-I after receiving ¿ disclosure in violation of Section 1681b(b)(2)(A)(i) within the two-year limitations period. He sought statutory damages pursuant to Section 1681n(a)(l)(A), punitive damages pursuant to Section 1681n(a)(2), and attorney’s fees and costs pursuant to Section 1681n(a)(3). Syed did not seek actual damages, which would have required proof of actual harm. See Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir. 2001) (citing cases).

The original complaint alleged that MI’s statutory violation had been “willful,” the predicate for Syed’s claimed statutory and punitive damages. See 15 U.S.C. § 1681n; see also Safeco, 551 U.S. at 53, 127 S.Ct. 2201. On August 28, 2014, the district court dismissed Syed’s complaint for failure to state a claim, with leave to amend. It held that the allegation of willfulness consisted only of “labels and conclusions.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Syed filed his First Amended Complaint (“FAC”) on September 2, 2014. The FAC sets forth the same factual and legal allegations as did the original complaint. However, it also includes citations to Federal Trade Commission (“FTC”) staff opinion letters and district court opinions that Syed asserts support his position that M-I “knew or should have known about its legal obligations under the FCRA,” thus rendering its statutory violation willful.

On October 23, 2014, the district court again dismissed Syed’s FAC for failure to state a claim, this time without leave to amend. The district court reasoned that Syed had still not sufficiently pleaded willfulness. The court concluded that the FTC letters could not have “warned [M-I] away from the view it took” because they were informal staff opinions, not authoritative guidance. See Safeco, 551 U.S. at 70, 70 n.19, 127 S.Ct. 2201. Similarly, the court found that the judicial opinions cited by Syed did not demonstrate that M-I’s conduct had been willful because the opinions issued after M-I had provided Syed the Disclosure Release in 2011.

II.

We have jurisdiction under 28 U.S.C. § Í291 to review the district court’s final judgment dismissing with prejudice Syed’s claims against M-I.

We review de novo the grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Fayer v. Vaughn, 649 F.3d 1061, 1063-64 (9th Cir. 2011). In so doing, we accept “all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). In addition, “the district court’s interpretation of a statute is a question of law which we review de novo.” Pakootas v. Teck Cominco Metals, Ltd., 830 F.3d 975, 980 (9th Cir. 2016) (internal quotation marks omitted).

III.

Syed has established Article III standing. A plaintiff who alleges a “bare procedural violation” of the FCRA, “divorced from any concrete harm,” fails to satisfy Article Ill’s injury-in-fact requirement. Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). However, Syed alleges more than a “bare procedural violation.” The disclosure requirement at issue, 15 U.S.C. § 1681b(b)(2)(A)(i), creates a right to information by requiring prospective employers to inform job applicants that they intend to procure their consumer reports as part of the employment application process. The authorization requirement, § 1681b(b)(2)(A)(ii), creates a right to privacy by enabling applicants to withhold permission to obtain the report from the prospective employer, and a concrete injury when applicants are deprived of their ability to meaningfully authorize the credit check. By providing a private cause of action for violations of Section 1681b(b)(2)(A), Congress has recognized the harm such violations cause, thereby articulating a “chain[] of causation that will give rise to a case or controversy.” See Spokeo, 136 S.Ct. at 1549 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 580, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (Kennedy, J., concurring)).

Syed alleged in his complaint that he “discovered Defendant M-I’s violation(s) within the last two years when he obtained and reviewed his personnel file from Defendant M-I and discovered that Defendant M-I had procured and/or caused to be procured a ‘consumer report’ regarding him for employment purposes based on the illegal disclosure and authorization form.” This allegation is sufficient to infer that Syed was deprived of the right to information and the right to privacy guaranteed by Section 168lb(b)(2)(A)(I) — (ii) because it indicates that Syed was not aware that he was signing a waiver authorizing the credit check when he signed it. Drawing all reasonable inferences in favor of the nonmov-ing party, we can fairly infer that Syed was confused by the inclusion of the liability waiver with the disclosure and would not have signed it had it contained a sufficiently clear disclosure, as required in the statute. Therefore, Syed did allege a concrete injury and has Article III standing to bring this lawsuit. See Thomas v. FTS USA, LLC, 193 F.Supp.3d 623, 628-638 (E.D. Va. 2016) (holding that an improper disclosure under 15 U.S.C. § 1681b(b)(2)(A) causes “a concrete injury sufficient to confer standing”).

IV.

A. M-I violated the FCRA by including a liability waiver on the same document as its disclosure.

Neither the Supreme Court nor any circuit court of appeals has addressed whether a prospective employer may satisfy 15 U.S.C. § 1681b(b)(2)(A) by providing a disclosure on a document that also includes a liability waiver. The district court avoided this interpretive question, holding only that M-I’s view that it had not violated the FCRA, whether correct or not, was “not objectively unreasonable,” and that M-I therefore could not be held liable for statutory or punitive damages. See Safeco, 551 U.S. at 69-70, 127 S.Ct. 2201. We conclude that the inclusion of the liability waiver did violate the FCRA, and next consider whether that violation was willful.

1. Section 1681b(b)(2)(A) unambiguously requires a document that “consists solely of the disclosure.”

We must begin with the text of the statute. Where congressional intent “has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (internal quotation marks omitted). And when “the meaning of the words seems to us to be intelligible upon a simple reading, ... we shall spend no time upon generalities concerning the principles of [statutory] interpretation.” United States v. M.H. Pulaski Co., 243 U.S. 97, 106, 37 S.Ct. 346, 61 L.Ed. 617 (1917).

The ordinary meaning of “solely” is “[a]lone; singly” or “[e]ntirely; exclusively.” American Heritage Dictionary of the English Language 1666 (5th ed. 2011). M-I argues that the statute’s requirement that the disclosure appear on a “document that consists solely of the disclosure” is ambiguous because subsection (ii) of the provision provides that the consumer may authorize the procurement of a consumer report on the document containing the disclosure. See 15 U.S.C. § 1681b(b)(2)(A). If the statute allows for an authorization on the same document as the disclosure, M-I reasons, then the statute must not really require the document to “consist[] solely of the disclosure.” See § 1681b(b)(2)(A). M-I thus urges us to find that Section 1681b(b)(2)(A) is internally inconsistent, and to give no effect to Congress’s use of the term “solely.”

However, contrary to M-I’s contention, the statutory allowance for the consumer to “authorize in writing” the procurement of a consumer report on the same document as the disclosure does not undermine the requirement that the document consist “solely of the disclosure.” The two clauses are consistent because the authorization clause is an express exception to the requirement that the document consist “solely of the disclosure.” While the statute does not specifically designate it as such, the authorization clause immediately follows the disclosure clause, and makes express reference to it. See § 1681b(b)(2)(A)(ii). This is not a ease where we must rationalize two plainly inconsistent subsections, or smooth over a “mistake in draftsmanship.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). To the contrary, it is clear that Congress intended the two subsections to work together.

Allowing an authorization on the same document as the disclosure is consistent with the purpose of the statute. Congress passed Section 1681b(b)(2)(A) in order to protect consumers from “improper invasion[s] of privacy,” S. Rep. No. 104-185 at 35 (1995), and the disclosure and authorization requirements fit hand in glove to achieve that purpose. Indeed, each would be largely ineffective on its own. Had the statute required disclosure without conditioning the procurement of a consumer report on the job applicant’s authorization, it would have failed to give the applicant control over the procurement of the personal information contained in the consumer report. On the other hand, had the statute conditioned the procurement of a report on the job applicant’s authorization without mandating clear disclosure by the prospective employer, Congress’s purpose' would have been frustrated because applicants would not understand what they were authorizing. The disclosure and authorization clauses therefore work in tandem to further the congressional purpose of protecting consumers from “improper invasion[s] of privacy.” See id.

Congress reasonably could have concluded that permitting the consumer to provide an authorization on the same page as the disclosure would enhance the effectiveness of each clause. A job applicant may read a disclosure more closely if he understands that the potential employer may obtain his consumer report only if he signs an authorization for it to do so. The decision to authorize or deny the prospective employer’s use of his report to accept or reject his employment application may be better informed if the authorization immediately follows the disclosure.

We thus reject M-I’s argument that Section 1681b(b)(2)(A) is internally inconsistent. “It is our duty to give effect, if possible, to every clause and word of a statute.” United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (internal quotation marks omitted). M-I’s interpretation fails to give effect to the term “solely,” violating the precept that “statutes should not be construed to make surplusage of any provision.” Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 804 (9th Cir. 1989) (alterations and internal quotation marks omitted). That other FCRA provisions mandating disclosure omit the term “solely” is further evidence that Congress intended that term to carry meaning in 15 U.S.C. § 1681b(b)(2)(A)(i). See 15 U.S.C. §§ 1681d, 1681s-3.

2. The statute does not implicitly authorize the inclusion of a liability waiver in a disclosure document.

Congress’s express exception to the “solely” requirement, allowing the disclosure document to also contain the authorization to procure a consumer report, does not mean that the statute contains other implicit exceptions as well. See United States v. Johnson, 529 U.S. 53, 58, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). Indeed, in light of Congress’s express grant of permission for the inclusion of an authorization, the familiar judicial maxim expres-sio unius est exclusio alterius counsels against finding additional, implied, exceptions. See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 188, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). We therefore reject M-I’s contention that a liability waiver is an implicit exception to the “solely” requirement in 15 U.S.C. § 1681b(b)(2)(A)(i).

Moreover, “[a]n implied exception to an express statute is justifiable only when it comports with the basic purpose of the statute.” Walker v. Fairbanks Inv. Co., 268 F.2d 48, 53 (9th Cir. 1959). Here, an implied exception permitting the inclusion of a liability waiver on the same document as the disclosure does not comport with the FCRA’s basic purpose. To the contrary, it would frustrate Congress’s goal of guarding a job applicant’s right to control the dissemination of sensitive personal information. See 15 U.S.C. § 1681(a)(4); S. Rep. No. 104-185 at 35. An authorization requiring the job applicant’s signature focuses the applicant’s attention on the nature of the personal information the prospective employer may obtain, and the employer’s inability to obtain that information without his consent. But a liability waiver does just the opposite — it pulls the applicant’s attention away from his privacy rights protected by the FCRA by calling his attention to the rights he must forego if he signs the document. Indeed, by reading M-I’s Disclosure Release, a job applicant could reasonably conclude that his signature was not consent to the procurement of the consumer report, but to a broad release of the employer from claims arising from the totality of the “investigative background inquiries” referenced in the first sentence of the form. See Appendix A. Thus, 15 U.S.C. § 1681b(b)(2)(A) does not contain an implied exception allowing a prospective employer to include a liability waiver on the same document as the statutorily mandated disclosure.

3. The statute’s explicit language cannot be interpreted as permitting the inclusion of a liability waiver.

M-I also argues that the statute contains an explicit exception allowing for the inclusion of a liability waiver, positing that a liability waiver is one type of authorization. But we need not speculate about how broadly Congress intended us to read the term “authorization,” because Congress told us exactly what it meant when it described the authorization as encompassing only “the procurement of [a consumer] report.” 15 U.S.C. § 1681b(b)(2)(A)(ii). Further, even assuming the statute were not as clear as it is, M-I’s interpretation is inconsistent with the plain meaning of the term “authorize.” To authorize is to “grant authority or power to.” American Heritage Dictionary 120. To waive is to “give up ... voluntarily” or “relinquish.” Id. at 1947. Authorization bestows, whereas waiver abdicates. A consumer may authorize the procurement of a consumer report or waive an employer’s liability, but he may not “authorize” a “waiver.” We decline to so harry the English language. See Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 82, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991). We thus reject M-I’s argument that the statute somehow explicitly permits the inclusion of a liability waiver on the disclosure document.

4. Whether the disclosure is “clear and conspicuous” is irrelevant to the analysis.

Next, M-I suggests that its inclusion of a liability waiver was permissible because even with the waiver, the disclosure was still “clear and conspicuous.” M-I cites Smith v. Waverly Partners, LLC, No. 3:10-CV-00028-RLV-DSC, 2012 WL 3645324, at *6 (W.D.N.C. Aug. 23, 2012), for the proposition that a disclosure made pursuant to Section 1681b(b)(2)(A) is valid despite the inclusion of a liability waiver where the waiver is “not so great a distraction as to discount the effectiveness of the disclosure.” The district court in Smith concluded that “in order to give Congress’s inclusion of the word ‘solely’ meaningful effect, ... inclusion of the waiver provision was statutorily impermissible and ... the waiver is therefore invalid.” Id. Only then, analyzing the single, separated sentence releasing the company from liability, did the court hold that the waiver was “not so great a distraction as to discount the effectiveness of the disclosure.” Id. It is inexplicable to us that a court would find that including a waiver violated the FCRA, but because the disclosure was “clear and conspicuous,” an additional requirement under the FCRA, see 15 U.S.C. § 1681b(b)(2)(A)(i), the disclosure was nonetheless “adequate.” See Smith, 2012 WL 8645324, at *6. Because the question of whether a disclosure is “clear and conspicuous” within the meaning of Section 1681b(b)(2)(A)(i) is separate from the question of whether a document consists “solely” of a disclosure, and is not one that is before us here, we decide only that including the waiver violated the statute’s “solely” requirement. Further, we question whether the Smith court’s approach comports with the clear mandate and purpose of the FCRA’s disclosure procedures.

B. M-I’s statutory violation was willful as a matter of law.

Syed seeks statutory and punitive damages only, not actual damages. Statutory and punitive damages are available under the FCRA only where a defendant “willfully fails to comply” with the statute. 15 U.S.C. § 1681n(a). Therefore, we must decide whether M-I willfully failed to comply with Section 1681b(b)(2)(A) by procuring Syed’s consumer report after including a liability waiver on the same document as the statutorily mandated disclosure. We may resolve this question as a matter of law, as the parties acknowledge.

The Supreme Court has clarified that, under Section 1681n, willfulness reaches actions taken in “reckless disregard of statutory duty,” in addition to actions “known to violate the Act.” Safeco, 551 U.S. at 56-57, 127 S.Ct. 2201. A party does not act in reckless disregard of the FCRA “unless the action is not only a violation under a reasonable reading of the statute’s terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.” Id. at 69, 127 S.Ct. 2201.

1. M-I’s interpretation of the statute • was not objectively reasonable.

M-I contends that, even if it violated the statute by procuring Syed’s consumer report, its interpretation of 15 U.S.C. § 1681b(b)(2)(A) was not so erroneous that its non-compliance was willful within the meaning of Section 1681n. Indeed, M-I argues that its reading was not “objectively unreasonable” because the statutory text was “less[ ]than[ ]pellucid.” See id. at 70, 127 S.Ct. 2201.

M-I’s arguments on this score track its contentions as to why its actions did not violate the statute at all. However, for the reasons outlined above, we conclude that the FCRA unambiguously bars a prospective employer from including a liability waiver on a disclosure document provided a job applicant pursuant to Section 1681b(b)(2)(A).

M-I also contends that its interpretation of the statute is objectively reasonable in light of the dearth of guidance from federal appellate courts and administrative agencies. No court of appeals has spoken to the issue of whether a disclosure document provided pursuant to Section 1681b(b)(2)(A) may permissibly include a liability waiver. Nor has an administrative agency promulgated authoritative guidance on the issue.

A lack of “guidance,” however, does not itself render Mi’s interpretation reasonable. The Supreme Court has analogized the assessment of whether a FCRA violation may give rise to a claim for statutory damages to the determination of whether government employees may be held personally liable in suits for damages. Safeco, 551 U.S. at 70, 127 S.Ct. 2201. In the qualified immunity context, we have held that “when an officer’s conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.” Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004) (internal quotation marks omitted). Similarly, at least one circuit court of appeals has concluded that, in the FCRA context, a “lack of definitive authority does not, as a matter of law, immunize [a party] from potential liability” for statutory damages. Cortez v. Trans Union, LLC, 617 F.3d 688, 721 (3d Cir. 2010).

Despite the apparent dearth of guidance on the issue at the time M-I procured Syed’s consumer report, M-I’s inclusion of a liability waiver in the statutorily mandated disclosure document comports with no reasonable interpretation of 15 U.S.C. § 1681b(b)(2)(A). Therefore, we conclude that Mi’s interpretation was “objectively unreasonable.”

2. M-I’s non-compliance was willful.

The parties appear to assume that, under Safeco, an objectively unreasonable interpretation of the FCRA is by definition a reckless one, as well. However, this interpretation improperly conflates recklessness and negligence. In tort law, negligent actions are those which do not meet the standard of objective reasonableness. See Restatement (Second) of Torts § 283 comment c (Am. Law Inst. 1965); W. Page Keeton et al., Prosser and Keaton on The Law of Torts § 32, at 173-74 (5th ed. 1984). On the other hand, one acts recklessly when he creates an “unreasonable risk of physical harm to another” that is “substantially greater than that which is necessary to make his conduct negligent.” See Restatement (Second) Torts § 500. The Supreme Court has specifically distinguished recklessness from negligence in the FCRA context, noting that a violation is only reckless (and therefore willful) where an employer adopts a reading of the statute that runs a risk of error “substantially greater than the risk associated with a reading that was merely careless.” Safeco, 551 U.S. at 69, 127 S.Ct. 2201 (emphasis added); see also id. at 70, 127 S.Ct. 2201 (“Safeco’s reading was not objectively unreasonable, and so falls well short of raising the ‘unjustifiably high risk’ of violating the statute necessary for reckless liability.”)

Moreover, equating negligence with recklessness would fail to give effect to the FCRA’s allowance of actual damages for negligent violations, on the one hand, and statutory and punitive damages for willful ones, on the other. See 15 U.S.C. §§ 1681n, 1681o; Safeco, 551 U.S. at 69-70, 127 S.Ct. 2201; see also Menasche, 348 U.S. at 538-39, 75 S.Ct. 513 (“It is our duty to give effect, if possible, to every clause and word of a statute....”) (internal quotation marks omitted). Accordingly, if M-I’s interpretation of the FCRA is merely objectively unreasonable, it does not follow that Syed is entitled to statutory damages.

We must determine whether M-I’s interpretation of 15 U.S.C. § 1681b(b)(2)(A) to permit a liability waiver in a disclosure document crossed the “negligence/recklessness line.” See Safeco, 551 U.S. at 69, 127 S.Ct. 2201. It is possible to imagine an interpretation of 15 U.S.C. § 1681b(b)(2)(A) that would be objectively unreasonable without rising to the level of recklessness. For instance, the Seventh Circuit has held that a company did not recklessly disregard the FCRA’s mandate of “clear and conspicuous” disclosure by using six-point type, even if the company’s actions were negligent. Murray v. New Cingular Wireless Servs., Inc., 523 F.3d 719, 726-27 (7th Cir. 2008) (Easterbrook, J.) (qualifying that such a practice “would be reckless today,” given intervening legal authority).

Here, however, the term we are called upon to construe is not subject to a range of plausible interpretations. To the contrary, 15 U.S.C. § 1681b(b)(2)(A) unambiguously forecloses the inclusion of a liability waiver in a disclosure document. Thus, we need not consider M-I’s subjective interpretation of the FCRA in determining whether it acted in reckless disregard of the statutory language, and therefore willfully. Indeed, M-I concedes that this question may be resolved purely as a matter of law. Because the statute unambiguously bars M-I’s interpretation, whether or not M-I actually believed that its interpretation was correct is immaterial. See Reardon v. ClosetMaid Corp., No. 2:08-cv-01730, 2013 WL 6231606, at *11 (W.D. Pa. Dec. 2, 2013) (holding that there was “no issue of material fact” about whether defendant violated 15 U.S.C. § 1681b(b)(2)(A) willfully and granting plaintiff summary judgment). Notwithstanding that we are the first federal appellate court to construe Section 1681b(b)(2)(A), this is not a “borderline case.” See Cortez, 617 F.3d at 722. An employer “whose conduct is first examined under [a] section of the Act should not receive a pass because the issue has never been decided.” Id.

M-I ran an “unjustifiably high risk of violating the statute.” See Safeco, 551 U.S. at 70, 127 S.Ct. 2201 (internal quotation marks omitted). In other words, M-I acted in “reckless disregard of statutory duty.” Its violation of the FCRA was therefore willful under 15 U.S.C. § 1681n. See Safeco, 551 U.S. at 56-57, 127 S.Ct. 2201.

C. The complaint’s factual allegations preclude dismissal on statute of limitations grounds.

In the alternative, M-I urges us to affirm the district court’s dismissal of Syed’s complaint on the ground that Syed’s claims are barred by the FCRA’s two-year statute of limitations. The FCRA requires a plaintiff to bring an action within the earlier of “(1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for [the employer’s] liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs.” 15 U.S.C. § 1681p. The district court dismissed Syed’s action because he failed to state a claim under Federal Rule of Civil Procedure 12(b)(6), not because the claim was time-barred. However, we may “affirm on any basis fairly supported by the record.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir. 2007).

M-I argues that Syed “discovered” the violation within the meaning of 15 U.S.C. § 1681p when he signed M-I’s allegedly deficient Disclosure Release form upon applying for a job in 2011. Because Syed challenges only the disclosure document, and not the manner in which M-I used his consumer report, M-I contends that the date of disclosure is the relevant one here.

However, a prospective employer does not violate Section 1681b(b)(2)(A) by providing a disclosure that violates the FCRA’s disclosure requirement. See Harris v. Home Depot U.S.A., Inc., 114 F.Supp.3d 868, 869 (N.D. Cal. 2015); Singleton v. Domino’s Pizza, LLC, No. DKC 11-1823, 2012 WL 245965, at *7 (D. Md. Jan. 25, 2012). The employer violates .the FCRA only where, after violating its disclosure procedures, it “procuréis] or cause[s] to be procured” a consumer report about the job applicant. See 15 U.S.C. § 1681b(b)(2)(A)(i).

M-I urges a contrary interpretation, relying on cases construing statutes of limitations involving inadequate disclosures on loan documents under the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”), Pub. L. 108-159, 111 Stat. 1952, which amended the FCRA, and the Truth in Lending Act of 1968 (“TILA”), Pub. L. 90-321, 82 Stat. 146 (codified at 15 U.S.C. § 1601 et seq). M-I is correct that the statutes of limitations under FACTA and TILA generally begin to run when the disclosure is made. However, this is so because the disclosure and transaction usually occur simultaneously in the lending context. See Ancheta v. Golden Empire Mortg., Inc., No. 10-CV-05589-LHK, 2011 WL 826177, at *4 (N.D. Cal. March 7, 2011) (“FACTA claims presumptively accrue on the date of the loan transaction, because it should be clear on this date whether or not a credit score disclosure is made.”).

Here, Syed does not allege that M-I procured his consumer report at the same time it made its disclosure, which would have meant that he could have discovered the statutory violation when he received the Disclosure Release. To the contrary, he alleges that he was unaware M-I had procured his consumer report until he reviewed his personnel file “within the last two years.” Because we must treat this allegation as true at the motion-to-dismiss stage, Syed adequately pleaded that his claim fell within the FCRA’s two-year statute of limitations. See Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995) (“[A] complaint cannot be dismissed [for untimeliness] unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.”). Therefore, dismissal of Syed’s complaint was not warranted on the ground that his claim was time-barred.

V.

The FCRA’s employment disclosure provision “says what it means and means what it says.” See Simmons v. Himmelreich, — U.S. -, 136 S.Ct. 1843, 1848, 195 L.Ed.2d 106 (2016). The statute unambiguously bars the inclusion of a liability waiver on the same document as a disclosure made pursuant to 15 U.S.C. § 1681b(b)(2)(A). M-I willfully violated the statute by procuring Syed’s consumer report without providing a disclosure “in a document that consisted] solely of the disclosure.” § 1681b(b)(2)(A)(i). Therefore, the district court erred in dismissing Syed’s complaint.

REVERSED and REMANDED.

APPENDIX A

      . The statutory provision at issue, 15 U.S.C. § 1681b(b)(2)(A), governs the procurement of consumer reports "for employment purposes with respect to any consumer.” Thus, the statute's application is not limited to employer-employee relationships. However, for the sake of brevity, we describe the parties governed by the statute as “prospective employers” and "job applicants,” while recognizing that the statute in fact applies more broadly.

      . This opportunity is particularly important given that, in practice, the FCRA does not otherwise provide an opportunity for a job applicant or employee to dispute his consumer report before adverse action is taken. See Richard Fischer, A.S. Pratt & Sons, Law of Financial Privacy ¶ 1.04[2][F] (2014).

      . Syed also named PreCheck, the company hired by M-I to obtain his consumer report, as a defendant. Syed has since settled his claims against PreCheck. Thus, only his claims against M-I are at issue in this appeal.

      . In reviewing a Rule 12(b)(6) dismissal by the district court, we "accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmov-ing party." Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000). Moreover, at the Rule 12(b)(6) stage, “we presume that 'general allegations embrace those specific facts that are necessary to support a claim.’ ” Smith v. Pac. Properties and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Of course, standing “must be supported at each stage of the litigation in the same manner as any other essential element of the case,” Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002), and what suffices at the Rule 12(b)(6) stage may not suffice at later stages of the proceedings when the facts are tested.

      . M-I’s argument that the legislative history supports its interpretation of the statute is also misguided. M-I's reading is in fact inconsistent with Congress’s intent, because the inclusion of a liability waiver tends to distract from the disclosure's clarity. In any event, "it is well-settled that 'reference to legislative history is inappropriate when the text of the statute is unambiguous.’ ” United States v. Sioux, 362 F.3d 1241, 1246 (9th Cir. 2004). Thus, we look no further than the statutory text.

      . The FTC has released three informal staff opinion letters relevant to the issue at hand, each supporting Syed’s interpretation of Section 1681b(b)(2)(A). See FTC, Opinion Letter, 1997 WL 33791227, at *1 (Oct. 21, 1997) ("[The] document should include nothing more than the disclosure and the authorization for obtaining a consumer report.”); FTC, Opinion Letter, 1998 WL 34323748, at *2 (Feb. 11, 1998) (disclosure may describe the "nature of the consumer reports” it covers, but otherwise should “not be encumbered with extraneous information"); FTC, Opinion Letter, 1998 WL 34323756, at *1 (June 12, 1998) (inclusion of a waiver in a disclosure form violates Section 168 lb(b)(2)(A)). However, informal opinion letters do not constitute authoritative guidance. See Safeco, 551 U.S. at 70 n.19, 127 S.Ct. 2201. Therefore, we do not rely on them here.

      . In Safeco, the Supreme Court did not foreclose the possibility that a party’s subjective interpretation of the FCRA may be relevant in some circumstances. 551 U.S. at 70 n.20, 127 S.Ct. 2201; see also In re Seagate Tech., LLC, 497 F.3d 1360, 1384 (Fed. Cir. 2007), abrogated on other grounds by Halo Elecs., Inc. v. Pulse Elecs., Inc., - U.S. -, 136 S.Ct. 1923, 195 L.Ed.2d 278 (2016) (a FCRA defendant's "subjective beliefs may become relevant ... if [the plaintiff] successfully makes [a] showing of objective unreasonableness”). However, where a party’s action violates an unambiguous statutory requirement, that fact alone may be sufficient to conclude that its violation is reckless, and therefore willful. We observe that, in tort law, from which the Safeco Court drew its interpretation of willfulness under the FCRA, recklessness may be determined by objective evidence alone. Keeton et al., supra, § 34 at 213-14.

      . We are persuaded by the opinions of a number of other district courts rejecting the argument that a prospective employer’s inclusion of a liability waiver in a disclosure made pursuant to 15 U.S.C. § 168lb(b)(2)(A) was not willful as a matter of law. Harris v. Home Depot U.S.A., Inc., 114 F.Supp.3d 868, 870-71 (N.D. Cal. 2015); Speer v. Whole Foods Mkt. Grp., Inc., No. 8:14-cv-3035-T-26TBM, 2015 WL 1456981, at *3 (M.D. Fla. March 30, 2015); Avila v. NOW Health Grp., Inc., No. 14 C 1551, 2014 WL 3537825, at *3 (N.D. Ill. July 17, 2014); see also Ramirez v. Midwest Airlines, Inc., 537 F.Supp.2d 1161, 1171 (D. Kan. 2008) (holding that defendant could not avoid liability for willful violation as a matter of law under the FCRA, 15 U.S.C. § 1681c(g), because there was “no plausible alternative reading of the statute in the foundation of the statutory text”). For the reasons described in Part IV.A.4, we disagree with the contrary analysis of the court in Smith, 2012 WL 3645324, at *6.