author: Justice Souter Justice Stevens, Justice Thomas,

text:
    SAFECO INSURANCE COMPANY OF AMERICA ET AL. v. BURR ET AL.
    No. 06-84.
    Argued January 16, 2007
    Decided June 4, 2007

      Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and, Kennedy and Breyer, JJ., joined, in which Scaua, J., joined as to all but footnotes 11 and 15, in which Thomas and Auto, JJ., joined as to all but Part III-A, and in which Stevens and Ginsburg, JJ., joined as to Parts I, II, III-A, and IV-B. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined, post, p. 71. Thomas, J., filed an opinion concurring in part, in which Auto, J., joined, post, p. 73.

      Maureen E. Mahoney argued the cause for petitioners in both cases. On the briefs in No. 06-84 were Michael K. Kellogg, Sean A. Lev, Michael P. Kenny, Cari K. Dawson, Susan H. Ephron, and Lisa E. Lear. With Ms. Mahoney on the briefs in No. 06-100 were Richard P. Bress, Robert D. Allen, Meloney Cargil Perry, Jay F. Utley, and Brandon P. Long.

      Patricia A. Millett argued the cause for the United States as amicus curiae in both cases. With her on the brief were
      Solicitor General Clement, Deputy Solicitor General Hungar, John F. Daly, and Lawrence DeMille-Wagman.

      Scott A. Shorr argued the cause for respondents in both cases. With him on the brief were Robert A. Shlachter, Steve D. Larson, and Scott L. Nelson.

       Together with No. 06-100, GEICO General Insurance Co. et al. v. Edo, also on certiorari to the same court.

       Briefs of amici curiae urging reversal in both cases were filed for the American Insurance Association by Seth P. Waxman, Noah A. Levine, J. Stephen Zielezienski, and Allan J. Stein; for the Consumer Data Industry Association by Anne P. Fortney; for Farmers Insurance Co. of Oregon et al. by Theodore J. Boutrous, Jr., Gail E. Lees, Mark A. Perry, William E. Thomson, Christopher Chorba, Barnes H. Ellis, and James N. West-wood; for the Financial Services Roundtable et al. by L. Richard Fischer, Beth S. Brinkmann, Seth M. Galanter, Robin S. Conrad, and Shane Brennan; for Ford Motor Co. by David G. Leitch, John M. Thomas, Walter Dellinger, and Matthew M. Shors; for the Freedomworks Foundation by Gene C. Schaerr, Steffen N. Johnson, and Linda T. Coberly; for Mortgage Insurance Cos. of America et al. by Thomas M. Hefferon, Richard M. Wyner, Joseph F. Yenouskas, and Jeremiah S. Buckley; for the National Association of Mutual Insurance Cos. by Sheila L. Bimbaum, Barbara Wrubel, Douglas W. Dunham, and Ellen P. Quackenbos; for the Property Casualty Insurers Association of America by Susan M. Popik and Merri A. Baldwin; for Trans Union LLC by Michael O’Neil and Roger L. Long-tin; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A Samp.

      Briefs of amici curiae urging affirmance in both cases were filed for the State of Oregon et al. by Hardy Myers, Attorney General of Oregon, Peter Shepherd, Deputy Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General, by Eugene A Adams, Interim Attorney General of the District of Columbia, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Mike Beebe of Arkansas, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Tom Miller of Iowa, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Eliot Spitzer of New York, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Henry McMaster of South Carolina, Larry Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, Peggy A Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming; for Insurance Commissioners of the State of Delaware et al. by Patrick T. Ryan, Jeanie Kunkle Vaudt, Assistant Attorney General of Iowa, John W. Campbell,

        John H. Clough, Michael W. Ridgeway, Rob McKenna, Attorney General of Washington, and Christina Beusch, Assistant Attorney General of Washington; and for the National Consumer Law Center, Inc., et al. by Richard J. Rubin, Joanne S. Faulkner, and Elizabeth D. De Armond.

   Justice Souter

delivered the opinion of the Court.

The Fair Credit Reporting Act (FCRA or Act) requires notice to any consumer subjected to “adverse action . . . based in whole or in part on any information contained in a consumer [credit] report.” 15 U. S. C. § 1681m(a). Anyone who “willfully fails” to provide notice is civilly liable to the consumer. § 1681n(a). The questions in these consolidated cases are whether willful failure covers a violation committed in reckless disregard of the notice obligation, and, if so, whether petitioners Safeco and GEICO committed reckless violations. We hold that reckless action is covered, that GEICO did not violate the statute, and that while Safeco might have, it did not act recklessly.

I

A

Congress enacted FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy. See 84 Stat. 1128, 15 U. S. C. § 1681; TRW Inc. v. Andrews, 534 U. S. 19, 23 (2001). The Act requires, among other things, that “any person [who] takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report” must notify the affected consumer. 15 U. S. C. § 1681m(a). The notice must point out the adverse action, explain how to reach the agency that reported on the consumer’s credit, and tell the consumer that he can get a free copy of the report and dispute its accuracy with the agency. Ibid. As it applies to an insurance company, “adverse action” is “a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for.” § 1681a(k)(l)(B)(i).

FCRA provides a private right of action against businesses that use consumer reports but fail to comply. If a violation is negligent, the affected consumer is entitled to actual damages. § 1681o(a) (2000 ed., Supp. IV). If willful, however, the consumer may have actual damages, or statutory damages ranging from $100 to $1,000, and even punitive damages. § 1681n(a) (2000 ed.).

B

Petitioner GEICO writes auto insurance through four subsidiaries: GEICO General, which sells “preferred” policies at low rates to low-risk customers; Government Employees, which also sells “preferred” policies, but only to government employees; GEICO Indemnity, which sells standard policies to moderate-risk customers; and GEICO Casualty, which sells nonstandard policies at higher rates to high-risk customers. Potential customers call a toll-free number answered by an agent of the four affiliates, who takes information and, with permission, gets the applicant’s credit score. This information goes into GEICO’s computer system, which selects any appropriate company and the particular rate at which a policy may be issued.

For some time after FCRA went into effect, GEICO sent adverse action notices to all applicants who were not offered “preferred” policies from GEICO General or Government Employees. GEICO changed its practice, however, after a method to “neutralize” an applicant's credit score was devised: the applicant’s company and tier placement is compared with the company and tier placement he would have been assigned with a “neutral” credit score, that is, one calculated without reliance on credit history. *4 Under this new scheme, it is only if using a neutral credit score would have put the applicant in a lower priced tier or company that GEICO sends an adverse action notice; the applicant is not otherwise told if he would have gotten better terms with a better credit score.

Respondent Ajene Edo applied for auto insurance with GEICO. After obtaining Edo’s credit score, GEICO offered him a standard policy with GEICO Indemnity (at rates higher than the most favorable), which he accepted. Because Edo’s company and tier placement would have been the same with a neutral score, GEICO did not give Edo an adverse action notice. Edo later filed this proposed class action against GEICO, alleging willful failure to give notice in violation of § 1681m(a); he claimed no actual harm, but sought statutory and punitive damages under § 1681n(a). The District Court granted summary judgment for GEICO, finding there was no adverse action when “the premium charged to [Edo].. . would have been the same even if GEICO Indemnity did not consider information in [his] consumer credit history.” Edo v. GEICO Casualty Co., CV 02-678-BR, 2004 U. S. Dist. LEXIS 28522, *12 (D. Ore., Feb. 23, 2004), App. to Pet. for Cert, in No. 06-100, p. 46a.

Like GEICO, petitioner Safeco relies on credit reports to set initial insurance premiums, as it did for respondents Charles Burr and Shannon Massey, who were offered higher rates than the best rates possible. Safeco sent them no adverse action notices, and they later joined a proposed class action against the company, alleging willful violation of §1681m(a) and seeking statutory and punitive damages under §1681n(a). The District Court ordered summary judgment for Safeco, on the understanding that offering a single, initial rate for insurance cannot be “adverse action.”

The Court of Appeals for the Ninth Circuit reversed both judgments. In GEICO’s case, it held that whenever a consumer “would have received a lower rate for his insurance had the information in his consumer report been more favorable, an adverse action has been taken against him.” Reynolds v. Hartford Financial Servs. Group, Inc., 435 F. 3d 1081, 1093 (2006). Since a better credit score would have placed Edo with GEICO General, not GEICO Indemnity, the appeals court held that GEICO’s failure to give notice was an adverse action.

The Ninth Circuit also held that an insurer “willfully” fails to comply with FCRA if it acts with “reckless disregard” of a consumer’s rights under the Act. Id., at 1099. It explained that a company would not be acting recklessly if it “diligently and in good faith attempted to fulfill its statutory obligations” and came to a “tenable, albeit erroneous, interpretation of the statute.” Ibid. The court went on to say that “a deliberate failure to determine the extent of its obligations” would not ordinarily escape liability under § 1681n, any more than “reliance on creative lawyering that provides indefensible answers.” Ibid. Because the court believed that the enquiry into GEICO’s reckless disregard might turn on undisclosed circumstances surrounding GEICO’s revision of its notification policy, the Court of Appeals remanded the company’s case for further proceedings.

In the action against Safeco, the Court of Appeals rejected the District Court’s position, relying on its reasoning in GEICO’s case (where it had held that the notice requirement applies to a single statement of an initial charge for a new policy). Spano v. Safeco Corp., 140 Fed. Appx. 746 (2005). The Court of Appeals also rejected Safeco’s argument that its conduct was not willful, again citing the GEICO case, and remanded for further proceedings.

We consolidated the two matters and granted certiorari to resolve a conflict in the Circuits as to whether §1681n(a) reaches reckless disregard of FCRA’s obligations, and to clarify the notice requirement in § 1681m(a). 548 U. S. 942 (2006). We now reverse in both cases.

II

GEICO and Safeco argue that liability under § 1681n(a) for “willfully fail[ing] to comply” with FCRA goes only to acts known to violate the Act, not to reckless disregard of statutory duty, but we think they are wrong. We have said before that “willfully” is a “word of many meanings whose construction is often dependent on the context in which it appears,” Bryan v. United States, 524 U. S. 184, 191 (1998) (internal quotation marks omitted); and where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well, see McLaughlin v. Richland Shoe Co., 486 U. S. 128, 132-133 (1988) (“willful,” as used in a limitation provision for actions under the Fair Labor Standards Act, covers claims of reckless violation); Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125-126 (1985) (same, as to a liquidated damages provision of the Age Discrimination in Employment Act of 1967); cf. United States v. Illinois Central R. Co., 303 U. S. 239, 242-243 (1938) (“willfully,” as used in a civil penalty provision, includes “ ‘conduct marked by careless disregard whether or not one has the right so to act’ ” (quoting United States v. Murdock, 290 U. S. 389, 395 (1933))). This construction reflects common law usage, which treated actions in “reckless disregard” of the law as “willful” violations. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §34, p. 212 (5th ed. 1984) (hereinafter Prosser and Keeton) (“Although efforts have been made to distinguish” the terms “willful,” “wanton,” and “reckless,” “such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit”). The standard civil usage thus counsels reading the phrase “willfully fails to comply” in § 1681n(a) as reaching reckless FCRA violations, and this is so both on the interpretive assumption that Congress knows how we construe statutes and expects us to run true to form, see Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 159 (1993), and under the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way, Beck v. Prupis, 529 U. S. 494, 500-501 (2000).

GEICO and Safeco argue that Congress did point to something different in FCRA, by a drafting history of § 1681n(a) said to show that liability was supposed to attach only to knowing violations. The original version of the Senate bill that turned out as FCRA had two standards of liability to victims: grossly negligent violation (supporting actual damages) and willfiil violation (supporting actual, statutory, and punitive damages). S. 823, 91st Cong., 1st Sess., § 1 (1969). GEICO and Safeco argue that since a “gross negligence” standard is effectively the same as a “reckless disregard” standard, the original bill’s “willfulness” standard must have meant a level of culpability higher than “reckless disregard,” or there would have been no requirement to show a different state of mind as a condition of the potentially much greater liability; thus, “willfully fails to comply” must have referred to a knowing violation. Although the gross negligence standard was reduced later in the legislative process to simple negligence (as it now appears in § 1681o), the provision for willful liability remains unchanged and so must require knowing action, just as it did originally in the draft of §1681n.

Perhaps. But Congress may have scaled the standard for actual damages down to simple negligence because it thought gross negligence, being like reckless action, was covered by willfulness. Because this alternative reading is possible, any inference from the drafting sequence is shaky, and certainly no match for the following clue in the text as finally adopted, which points to the traditional understanding of willfulness in the civil sphere.

The phrase in question appears in the preamble sentence of § 1681n(a): “Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer____” Then come the details, in paragraphs (1)(A) and (1)(B), spelling out two distinct measures of damages chargeable against the willful violator. As a general matter, the consumer may get either actual damages or “damages of not less than $100 and not more than $1,000.” § 1681n(a)(l)(A). But where the offender is liable “for obtaining a consumer report under false pretenses or knowingly without a permissible purpose,” the statute sets liability higher: “actual damages ... or $1,000, whichever is greater.” § 1681n(a)(1)(B).

If the companies were right that “willfully” limits liability under § 1681n(a) to knowing violations, the modifier “knowingly” in § 1681n(a)(l)(B) would be superfluous and incongruous; it would have made no sense for Congress to condition the higher damages under § 1681n(a) on knowingly obtaining a report without a permissible purpose if the general threshold of any liability under the section were knowing misconduct. If, on the other hand, “willfully” covers both knowing and reckless disregard of the law, knowing violations are sensibly understood as a more serious subcategory of willful ones, and both the preamble and the subsection have distinct jobs to do. See United States v. Menasche, 348 U. S. 528, 538-539 (1955) (“'[G]ive effect, if possible, to every clause and word of a statute’ ” (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883))).

The companies make other textual and structural arguments for their view, but none is persuasive. Safeco thinks our reading would lead to the absurd result that one could, with reckless disregard, knowingly obtain a consumer report without a permissible purpose. But this is not so; action falling within the knowing subcategory does not simultaneously fall within the reckless alternative. Then both GEICO and Safeco argue that the reference to acting “knowingly and willfully” in FCRA’s criminal enforcement provisions, §§1681q and 1681r, indicates that “willfully” cannot include recklessness. But we are now on the criminal side of the law, where the paired modifiers are often found, see, e. g., 18 U. S. C. § 1001 (2000 ed. and Supp. IV) (false statements to federal investigators); 20 U. S. C. § 1097(a) (embezzlement of student loan funds); 18 U. S. C. § 1542 (2000 ed. and Supp. IV) (false statements in a passport application). As we said before, in the criminal law “willfully” typically narrows the otherwise sufficient intent, making the government prove something extra, in contrast to its civil law usage, giving a plaintiff a choice of mental states to show in making a case for liability, see n. 9, supra. The vocabulary of the criminal side of FCRA is consequently beside the point in construing the civil side.

III

A

Before getting to the claims that the companies acted recklessly, we have the antecedent question whether either company violated the adverse action notice requirement at all. In both cases, respondent-plaintiffs’ claims are premised on initial rates charged for new insurance policies, which are not “adverse” actions unless quoting or charging a first-time premium is “an increase in any charge for... any insurance, existing or applied for.” 15 U. S. C. § 1681a(k)(l)(B)(i).

In Safeco’s case, the District Court held that the initial rate for a new insurance policy cannot be an “increase” because there is no prior dealing. The phrase “increase in any charge for . . . insurance” is readily understood to mean a change in treatment for an insured, which assumes a previous charge for comparison. See Webster’s New International Dictionary 1260 (2d ed. 1957) (defining “increase” as “[a]ddition or enlargement in size, extent, quantity, number, intensity, value, substance, etc.; augmentation; growth; multiplication”). Since the District Court understood “increase” to speak of change just as much as of comparative size or quantity, it reasoned that the statute’s “increase” never touches the initial rate-offer^where there is no change.

The Government takes the part of the Court of Appeals in construing “increase” to reach a first-time rate. It says that regular usage of the term is not as narrow as the District Court thought: the point from which to measure difference can just as easily be understood without referring to prior individual dealing. The Government gives the example of a gas station owner who charges more than*the posted price for gas to customers he does not like; it makes sense to say that the owner increases the price and that the driver pays an increased price, even if he never pulled in there for gas before. See Brief for United States as Amicus Curiae 26. The Government implies, then, that reading “increase” requires a choice, and the chosen reading should be the broad one in order to conform to what Congress had in mind.

We think the Government’s reading has the better fit with the ambitious objective set out in the Act’s statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies. See § 1681(a) (inaccurate reports “directly impair the efficiency of the banking system”; unfair reporting methods undermine public confidence “essential to the continued functioning of the banking system”; need to “insure” that reporting agencies “exercise their grave responsibilities” fairly, impartially, and with respect for privacy). The descriptions of systemic problem and systemic need as Congress saw them do nothing to suggest that remedies for consumers placed at a disadvantage by unsound credit ratings should be denied to first-time victims, and the legislative histories of FCRA’s original enactment and of the 1996 amendment reveal no reason to confine attention to customers and businesses with prior dealings. Quite the contrary. Finally, there is nothing about insurance contracts to suggest that Congress might have meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant. We therefore hold that the “increase” required for “adverse action,” 15 U. S. C. § 1681a(k)(l)(B)(i), speaks to a disadvantageous rate even with no prior dealing; the term reaches initial rates for new applicants.

B

Although offering the initial rate for new insurance can be an “adverse action,” respondent-plaintiffs have another hurdle to clear, for § 1681m(a) calls for notice only when the adverse action is “based in whole or in part on” a credit report. GEICO argues that in order to have adverse action “based on” a eredit report, consideration of the report must be a necessary condition for the increased rate. The Government and respondent-plaintiffs do not explicitly take a position on this point.

To the extent there is any disagreement on the issue, we ' accept GEICO’s reading. In common talk, the phrase “based on” indicates a but-for causal relationship and thus a necessary logical condition. Under this most natural reading of § 1681m(a), then, an increased rate is not “based in whole or in part on” the credit report unless the report was a necessary condition of the increase.

As before, there are textual arguments pointing another way. The statute speaks in terms of basing the action “in part” as well as wholly on the credit report, and this phrasing could mean that adverse action is “based on” a credit report whenever the report was considered in the rate-setting process, even without being a necessary condition for the rate increase. But there are good reasons to think Congress preferred GEICO’s necessary-condition reading.

If the statute has any claim to lucidity, not all “adverse actions” require notice, only those “based... on” information in a credit report. Since the statute does not explicitly call for notice when a business acts adversely merely after consulting a report, conditioning the requirement on action “based . . . on” a report suggests that the duty to report arises from some practical consequence of reading the report, not merely some subsequent adverse occurrence that would have happened anyway. If the credit report has no identifiable effect on the rate, the consumer has no immediately practical reason to worry about it (unless he has the power to change every other fact that stands between himself and the best possible deal); both the company and the consumer are just where they would have been if the company had never seen the report. And if examining reports that make no difference was supposed to trigger a reporting requirement, it would be hard to find any practical point in imposing the “based .. . on” restriction. So it makes more sense to suspect that Congress meant to require notice and prompt a challenge by the consumer only when the consumer would gain something if the challenge succeeded.

C

To sum up, the difference required for an increase can be understood without reference to prior dealing (allowing a first-time applicant to sue), and considering the credit report must be a necessary condition for the difference. The remaining step in determining a duty to notify in cases like these is identifying the benchmark for determining whether a first-time rate is a disadvantageous increase. And in dealing with this issue, the pragmatic reading of “based ... on” as a condition necessary to make a practical difference carries a helpful suggestion.

The Government and respondent-plaintiffs argue that the baseline should be the rate that the applicant would have received with the best possible credit score, while GEICO contends it is what the applicant would have had if the company had not taken his credit score into account (the “neutral score” rate GEICO used in Edo’s case). We think GEICO has the better position, primarily because its “increase” baseline is more comfortable with the understanding of causation just discussed, which requires notice under § 1681m(a) only when the effect of the credit report on the initial rate offered is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. If Congress was this concerned with practical consequences when it adopted a “based ... on” causation standard, it presumably thought in equally practical terms when it spoke of an “increase” that must be defined by a baseline to measure from. Congress was therefore more likely concerned with the practical question whether the consumer’s rate actually suffered when the company took his credit report into account than the theoretical question whether the consumer would have gotten a better rate with perfect credit.

The Government objects that this reading leaves a loophole, since it keeps first-time applicants who actually deserve better-than-neutral credit scores from getting notice, even when errors in credit reports saddle them with unfair rates. This is true; the neutral-score baseline will leave some consumers without, a notice that might lead to discovering errors. But we do not know how often these cases will occur, whereas we see a more demonstrable and serious disadvantage inhering in the Government’s position.

Since the best rates (the Government’s preferred baseline) presumably go only to a minority of consumers, adopting the Government’s view would require insurers to send slews of adverse action notices; every young applicant who had yet to establish a gilt-edged credit report, for example, would get a notice that his charge had been “increased” based on his credit report. We think that the consequence of sending out notices on this scale would undercut the obvious policy behind the notice requirement, for notices as common as these would take on the character of formalities, and formalities tend to be ignored. It would get around that new insurance usually comes with an adverse action notice, owing to some legal quirk, and instead of piquing an applicant’s interest about the accuracy of his credit record, the commonplace notices would mean just about nothing and go the way of junk mail. Assuming that Congress meant a notice of adverse action to get some attention, we think the cost of closing the loophole would be too high.

While on the subject of hypernotification, we should add a word on another point of practical significance. Although the rate initially offered for new insurance is an “increase” calling for notice if it exceeds the neutral rate, did Congress intend the same baseline to apply if the quoted rate remains the same over a course of dealing, being repeated at each renewal date?

We cannot believe so. Once a consumer has learned that his credit report led the insurer to charge more, he has no need to be told over again with each renewal if his rate has not changed. For that matter, any other construction would probably stretch the word “increase” more than it could bear. Once the gas station owner had charged the customer the above-market price, it would be strange to speak of the same price as an increase every time the customer pulled in. Once buyer and seller have begun a course of dealing, customary usage does demand a change for “increase” to make sense. Thus, after initial dealing between the consumer and the insurer, the baseline for “increase” is the previous rate or charge, not the “neutral” baseline that applies at the start.

IV

A

In GEICO’s case, the initial rate offered to Edo was the one he would have received if his credit score had not been taken into account, and GEICO owed him no adverse action notice under § 1681m(a).

B

Safeco did not give Burr and Massey any notice because it thought § 1681m(a) did not apply to initial applications, a mistake that left the company in violation of the statute if Burr and Massey received higher rates “based in whole or in part” on their credit reports; if they did, Safeco would be liable to them on a showing of reckless conduct (or worse). The first issue we can forget, however, for although the record does not reliably indicate what rates they would have obtained if their credit reports had not been considered, it is clear enough that if Safeco did violate the statute, the company was not reckless in falling down in its duty.

While “the term recklessness is not self-defining,” the common law has generally understood it in the sphere of civil liability as conduct violating an objective standard: action entailing “an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Farmer v. Brennan, 511 U. S. 825, 836 (1994); see Prosser and Keeton §34, at 213-214. The Restatement, for example, defines reckless disregard of a person’s physical safety this way:

“The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” 2 Restatement (Second) of Torts §500, p. 587 (1963-1964).

It is this high risk of harm, objectively assessed, that is the essence of recklessness at common law. See Prosser and Keeton § 34, at 213 (recklessness requires “a known or obvious risk that was so great as to make it highly probable that harm would follow”).

There being no indication that Congress had something different in mind, we have no reason to deviate from the common law understanding in applying, the statute. See Prupis, 529 U. S., at 500-501. Thus, a company subject to FCRA does not act in reckless disregard of it 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.

Here, there is no need to pinpoint the negligence/recklessness line, for Safeco’s reading of the statute, albeit erroneous, was not objectively unreasonable. As we said, § 1681a(k)(l)(B)(i) is silent on the point from which to measure “increase.” On the rationale that “increase” presupposes prior dealing, Safeco took the definition as excluding initial rate offers for new insurance, and so sent no adverse action notices to Burr and Massey. While we disagree with Safeco’s analysis, we recognize that its reading has a foundation in the statutory text, see supra, at 61, and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco’s favor.

This is not a case in which the business subject to the Act had the benefit of guidance from the courts of appeals or the Federal Trade Commission (FTC) that might have warned it away from the view it took. Before these cases, no court of appeals had spoken on the issue, and no authoritative guidance has yet come from the FTC (which in any case has only enforcement responsibility, not substantive rulemaking authority, for the provisions in question, see 15 U. S. C. §§ 1681s(a)(1), (e)). Cf. Saucier v. Katz, 533 U. S. 194, 202 (2001) (assessing, for qualified immunity purposes, whether an action was reasonable in light of legal rules that were “clearly established” at the time). Given this dearth of guidance and the less-than-pellucid statutory text, 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.

* * *

The Court of Appeals correctly held that reckless disregard of a requirement of FCRA would qualify as a willful violation within the meaning of §1681n(a). But there was no need for that court to remand the cases for factual development. GEICO’s decision to issue no adverse action notice to Edo was not a violation of § 1681m(a), and Safeco’s misreading of the statute was not reckless. The judgments of the Court of Appeals are therefore reversed in both eases, which are remanded for further proceedings consistent with this opinion.

■It is so ordered.

Justice Stevens,

with whom Justice Ginsburg joins, concurring in part and concurring in the judgment.

While I join the Court’s judgment and Parts I, II, III-A, and IV-B of the Court’s opinion, I disagree with the reasoning in Parts III-B and III-C, as well as with Part IV-A, which relies on that reasoning.

An adverse action taken after reviewing a. credit report “is based in whole or in part on” that report within the meaning of 15 U. S. C. § 1681m(a). That is true even if the company would have made the same decision without looking at the report, because what the company actually did is more relevant than what it might have done. I find nothing in the statute making the examination of a credit report a “necessary condition” of any resulting increase. Ante, at 63. The more natural reading is that reviewing a report is only a sufficient condition.

The Court’s contrary position leads to a serious anomaly. As a matter of federal law, companies are free to adopt whatever “neutral” credit scores they want. That score need not (and probably will not) reflect the median consumer credit score. More likely, it will reflect a company’s assessment of the creditworthiness of a run-of-the-mill applicant who lacks a credit report. Because those who have yet to develop a credit history are unlikely to be good credit risks, “neutral” credit scores will in many cases be quite low. Yet under the Court’s reasoning, only those consumers with credit scores even lower than what may already be a very low “neutral” score will ever receive adverse action notices.

While the Court acknowledges that “the neutral-score baseline will leave some consumers without a notice that might lead to discovering errors,” ante, at 66, it finds this unobjectionable because Congress was likely uninterested in “the theoretical question whether the consumer would have gotten a better rate with perfect credit,” ante, at 65. The Court’s decision, however, disserves not only those consumers with “gilt-edged credit report[s],” ante, at 66, but also the much larger category of consumers with better-than-“neutral” scores. I find it difficult to believe that Congress could have Intended for a company’s unrestrained adoption of a “neutral” score to keep many (if not most) consumers from ever hearing that their credit reports are costing them money. In my view, the statute’s text is amenable to a more sensible interpretation.

Justice Thomas,

with whom Justice Alito joins, concurring in part.

I agree with the Court’s disposition and most of its reasoning. Safeco did not send notices to new customers because it took the position that the initial insurance rate it offered a customer could not be an “increase in any charge for . . . insurance” under 15 U. S. C. § 1681a(k)(1)(B)(i). The Court properly holds that regardless of the merits of this interpretation, it is not an unreasonable one, and Safeco therefore did not act willfully. Ante, at 68-70. I do not join Part III-A of the Court’s opinion, however, because it resolves the merits of Safeco’s interpretation of § 1681a(k)(l)(B)(i)— an issue not necessary to the Court’s conclusion and not briefed or argued by the parties.

       Justice Scalia joins all but footnotes 11 and 15 of this opinion.

       So far as it matters here, the Act defines “consumer report” as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, [or] credit capacity . . . 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 . . . credit or insurance to be used primarily for personal, family, or household purposes.” 15 U. S. C. §1681a(d)(l) (footnote omitted). The scope of this definition is not at issue.

       The specific petitioners are subsidiary companies of the GEICO Corporation; for the sake of convenience, we call them “GEICO” collectively.

       The Act defines a “credit score” as “a numerical value or a categorization derived from a statistical tool or modeling system used by a person who makes or arranges a loan to predict the likelihood of certain credit behaviors, including default.” 15 U. S. C. § 1681g(f)(2)(A) (2000 ed., Supp. IV). Under its contract with its credit information providers, GEICO learned credit scores and facts in the credit reports that significantly influenced the scores, but did not have access to the credit reports themselves.

       A number of States permit the use of such “neutral” credit scores to ensure that consumers with thin or unidentifiable credit histories are not treated disadvantageously. See, e. g., N. Y. Ins. Law Ann. §§ 2802(e), (e)(1) (West 2006) (generally prohibiting an insurer from “consider[ing] an absence of credit information,” but allowing it to do so if it “treats the consumer as if the applicant or insured had neutral credit information, as defined by the insurer”).

       Again, the actual petitioners are subsidiary companies, of Safeco Corporation in this case; for convenience, we call them “Safeco” collectively.

       The parties do not dispute that the credit scores and credit reports relied on by GEICO and Safeco are “consumer reports” under 15 U. S. C. § 1681a(d)(l).

       Prior to issuing its final opinion in this case, the Court of Appeals had issued, then withdrawn, two opinions in which it held that GEICO had “willfully” violated FCRA as a matter of law. Reynolds v. Hartford Financial Servs. Group, Inc., 416 F. 3d 1097 (CA9 2005); Reynolds v. Hartford Financial Servs. Group, Inc., 426 F. 3d 1020 (CA9 2005).

       Compare, e. g., Cushman v. Trans Union Corp., 115 F. 3d 220, 227 (CA3 1997) (adopting the “reckless disregard” standard), with Wantz v. Experian Information Solutions, 386 F. 3d 829, 834 (CA7 2004) (construing “willfully” to require that a user “knowingly and intentionally violate the Act”); Phillips v. Grendahl, 312 F. 3d 357, 368 (CA8 2002) (same).

       It is different in the criminal law. When the term “willful” or “willfully” has been used in a criminal statute, we have regularly read the modifier as limiting liability to knowing violations. See Ratzlaf v. United States, 510 U. S. 135, 137 (1994); Bryan v. United States, 524 U. S. 184, 191-192 (1998); Cheek v. United States, 498 U. S. 192, 200-201 (1991). This reading of the term, however, is tailored to the criminal law, where it is characteristically used to require a criminal intent beyond the purpose otherwise required for guilt, Ratzlaf, supra, at 136-137; or an additional “ ‘bad purpose,’ ” Bryan, supra, at 191; or specific intent to violate a known legal duty created by highly technical statutes, Cheek, supra, at 200-201. Thus we have consistently held that a defendant cannot harbor such criminal intent unless he “acted with knowledge that his conduct was unlawful.” Bryan, supra, at 193. Civil use of the term, however, typically presents neither the textual nor the substantive reasons for pegging the threshold of liability at knowledge of wrongdoing. Cf. Farmer v. Brennan, 511 U. S. 825, 836-837 (1994) (contrasting the different uses of the term “recklessness” in civil and criminal contexts).

       Since the posted price seems to be addressed to the world in general, one could argue that the increased gas price is not the initial quote. But the same usage point can be made with the example of the clothing model who gets a call from a ritzy store after posing for a discount retailer. If she quotes a higher fee, it would be natural to say that the uptown store will have to pay the “increase” to have her in its ad.

       See S. Rep. No. 91-517, p. 7 (1969) (“Those who . . . charge a higher rate for credit or insurance wholly or partly because of a consumer report must, upon written request, so advise the consumer . . . ”); S. Rep. No. 103-209, p. 4 (1993) (adverse action notice is required “any time the permissible use of a report results in an outcome adverse to the interests of the consumer”); H. R. Rep. No. 103-486, p. 26 (1994) (“[Wlhenever a consumer report is obtained for a permissible purpose . . . , any action taken based on that report that is adverse to the interests of the consumer triggers the adverse action notice requirements”).

       In fact, notice in the context of an initially offered rate may be of greater significance than notice in the context of a renewal rate; if, for instance, insurance is offered on the basis of a single, long-term guaranteed rate, a consumer who is not given notice during the initial application process may never have an opportunity to learn of any adverse treatment.

       For instance, if a consumer’s driving record is so poor that no insurer • would give him anything but the highest possible rate regardless of his credit report, whether or not an insurer happened to look at his credit report should have no bearing on whether the consumer must receive notice, since he has not been treated differently as a result of it.

       The history of the Act provides further support for this reading. The originally enacted version of the notice requirement stated: “Whenever the charge for... insurance is increased either wholly or partly because of information contained in a consumer report..., the user of the consumer report shall so advise the consumer . . . .” 15 U. S. C. §1681m(a) (1976 ed.). The “because of” language in the original statute emphasized that the consumer report must actually have caused the adverse action for the notice requirement to apply. When Congress amended FCRA in 1996, it sought to define “adverse action” with greater particularity, and thus split the notice provision into two separate subsections. See 110 Stat. 3009-426 to 3009-427, 3009-443 to 3009-444. In the revised version of §1681m(a), the original “because of” phrasing changed to “based ... on,” but there was no indication that this change was meant to be a substantive alteration of the statute’s scope.

       While it might seem odd, under the current statutory structure, to interpret the definition of “adverse action” (in § 1681a(k)(l)(B)(i)) in conjunction with § 1681m(a), which simply applies the notice requirement to a particular subset of “adverse actions,” there are strong indications that Congress intended these provisions to be construed in tandem. When FCRA was initially enacted, the link between the definition of “adverse action” and the notice requirement was clear, since “adverse action” was defined within § 1681m(a). See 15 U. S. C. § 1681m(a) (1976 ed.). Though Congress eventually split the provision into two parts (with the definition of “adverse action” now located at § 1681a(k)(l)(B)(i)), the legislative history suggests that this change was not meant to alter Congress’s intent to define “adverse action” in light of the notice, requirement. See S. Rep. No. 103-209, at 4 (“The Committee bill... defines an ‘adverse action’ as any action that is adverse to the interests of the consumer and is based in whole or in part on a consumer report”); H. R. Rep. No. 103-486, at 26 (“[A]ny action based on [a consumer] report that is adverse to the interests of the consumer triggers the adverse action notice requirements”).

       Consider, too, a consumer who, at the initial application stage, had a perfect credit score and thus obtained the best insurance rate, but, at the renewal stage, was charged at a higher rate (but still lower than the rate he would have received had his credit report not been taken into account) solely because his credit score fell during the interim. Although the consumer clearly suffered an “increase” in his insurance rate that was “based on” his credit score, he would not be entitled to an adverse action notice under the baseline used for initial applications.

       We reject Edo’s alternative argument that GEICO’s offer of a standard insurance policy with GEICO Indemnity was an “adverse action” requiring notice because it amounted to a “denial” of insurance through a lower cost, “preferred” policy with GEICO General. See §1681a(k) (l)(B)(i) (defining “adverse action” to include a “denial. . . of . . . insurance”). An applicant calling GEICO for insurance talks with a sales representative who acts for all the GEICO companies. The record has no indication that GEICO tells applicants about its corporate structure, or that applicants request insurance from one of the several companies or even know of their separate existence. The salesperson takes information from the applicant and obtains his credit score, then either denies any insurance or assigns him to one of the companies willing to provide it; the other companies receive no application and take no separate action. This way of accepting new business is clearly outside the natural meaning of “denial” of insurance.

       Unlike civil recklessness, criminal recklessness also requires subjective knowledge on the part of the offender. Brennan, 511 U. S., at 836-837; ALI, Model Penal Code §2.02(2)(c) (1985).

       Respondent-plaintiffs point to a letter, written by an FTC staff member to an insurance company lawyer, that suggests that an “adverse action” occurs when “the applicant will have to pay more for insurance at the inception of the policy than he or she would have been charged if the consumer report had been more favorable.” Letter from Hannah A. Stires to James M. Ball (Mar. 1, 2000), http://www.ftc.gov/os/statutes/fcra/ ballhtm (as visited May 17, 2007, and available in Clerk of Court’s case file). But the letter did not canvass the issue, and it explicitly indicated that it was merely “an informal staff opinion... not binding on the Commission.” Ibid.

       Respondent-plaintiffs argue that evidence of subjective bad faith must be taken into account in determining whether a company acted knowingly or recklessly for purposes of § 1681n(a). To the extent that they argue that evidence of subjective bad faith can support a willfiilness finding even when the company’s reading of the statute is objectively reasonable, their argument is unsound. Where, as here, the statutory text and relevant court and agency guidance allow for more than one reasonable interpretation, it would defy history and current thinking to treat a defendant who merely adopts one such interpretation as a knowing or reckless violator. Congress could not have intended such a result for those who followed an interpretation that could reasonably have found support in the courts, whatever their subjective intent may have been.
      Both Safeco and GEICO argue that good-faith reliance on legal advice should render companies immune to claims raised under §1681n(a). While we do not foreclose this possibility, we need not address the issue here in light of our present holdings.

       Stranger still, companies that automatically disqualify consumers who lack credit reports will never need to send any adverse action notices. After all, the Court’s baseline is “what the applicant would have had if the company had not taken his credit score into account,” ante, at 65, but from such companies, what the applicant “would have had” is no insurance at all. An offer of insurance at any price, however inflated by a poor and perhaps incorrect credit score, will therefore never constitute an adverse action.

       The Court also justifies its deviation from the statute's text by reasoning that frequent adverse action notices would be ignored. See ante, at 66-67. To borrow a sentence from the Court’s opinion: “Perhaps.” Ante, at 59. But rather than speculate about the likely effect of “hypernotification,” ante, at 67, I would defer to the Solicitor General’s position, informed by the Federal Trade Commission’s expert judgment, that consumers by and large benefit from adverse action notices, however common. See Brief for United States as Amicus Curiae 27-29.


source: Caselaw Access Project

author: Justice Ginsburg

license: Public Domain

text:
    SOLE, SECRETARY, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al. v. WYNER et al.
    No. 06-531.
    Argued April 17, 2007
    Decided June 4, 2007

      Ginsbubg, J., delivered the opinion for a unanimous Court.

      Virginia A. Seitz argued the cause for petitioners. With her on the briefs were Carri S. Leininger and James O. Williams, Jr.

      Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Clement, Deputy Solicitor General Garre, Michael Jay Singer, and Michael E. Robinson.

      Seth M. Galanter argued the cause for respondents. With him on the brief were Beth S. Brinkmann, Randall C. Marshall, James K. Green, and Steven R. Shapiro.

       Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia et al. by Robert F. McDonnell, Attorney General of Virginia, William C. Mims, Chief Deputy Attorney General, William E. Thro, State Solicitor General, Stephen R. McCullough, Deputy State Solicitor General, and Dan Schweitzer, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John IK Suthers of Colorado, Thurbert E. Baker of peorgia, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiana, Mike Cox of Michigan, Jeremiah IK (Jay) Nixon of Missouri, George J. Chanos of Nevada, Kelly A Ayotte of New Hampshire, Wayne Stenehjem of North Dakota, Thomas IK Corbett, Jr., of Pennsylvania, Henry McMaster of South Carolina, Larry Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, Robert M. McKenna of Washington, Darrell V McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Patrick J. Crank of Wyoming; and for the National League of Cities et al. by Richard Ruda and Lawrence Rosenthal.

      Briefs of amici curiae urging affirmance were filed for Americans United for Separation of Church and State et al. by Andrew J. Pincus, Charles A Rothfeld, Dana Berliner, John W. Whitehead, Giovanna Shay, Ayesha N. Khan, Richard B. Katskee, Alex J. Luchenitser, Ronald A Lindsay, Brian Woljman, Steven Schwartz, and Judith E. Schaeffer; for the Brennan Center for Justice by Laura W. Brill and Wendy R. Weiser; for the Center for Individual Rights by Michael E. Rosman; and for the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity et al. by Catherine R. Albiston.

   Justice Ginsburg

delivered the opinion of the Court.

For private actions brought under 42 U. S. C. § 1983 and other specified measures designed to secure civil rights, Congress established an exception to the “American Rule” that “the prevailing litigant is ordinarily not entitled to collect [counsel fees] from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). That exception, codified in 42 U. S. C. § 1988(b), authorizes federal district courts, in their discretion, to “allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” This case presents a sole question: Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a “prevailing party” within the compass of § 1988(b)?

Viewing the two stages of the litigation as discrete episodes, plaintiffs below, respondents here, maintain that they prevailed at the preliminary injunction stage, and therefore qualify for a fee award for their counsels’ efforts to obtain that interim relief. Defendants below, petitioners here, regard the case as a unit; they urge that a preliminary injunction holds no sway once fuller consideration yields rejection of the provisional order’s legal or factual underpinnings. We agree with the latter position and hold that a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of § 1988(b). A plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.

I

In mid-January 2003, plaintiff-respondent T. A. Wyner notified the Florida Department of Environmental Protection (DEP) of her intention to create on Valentine’s Day, February 14, 2003, within John D. MacArthur Beach State Park, an antiwar artwork. The work would consist of nude individuals assembled into a peace sign. By letter dated February 6, DEP informed Wyner that her peace sign display would be lawful only if the participants complied with the “Bathing Suit Rule” set out in Fla. Admin. Code Ann. § 62D-2.014(7)(b) (2005). That rule required patrons, in all areas of Florida’s state parks, to wear, at a minimum, a thong and, if female, a bikini top.

To safeguard the Valentine’s Day display, and future expressive activities of the same order, against police interference, Wyner filed suit in the United States District Court for the Southern District of Florida on February 12,2003. She invoked the First Amendment’s protection of expressive conduct, and named as defendants the Secretary of DEP and the Manager of MacArthur Beach Park. Her complaint requested immediate injunctive relief against interference with the peace sign display, App. 18, and permanent injunctive relief against interference with “future expressive activities that may include non-erotic displays of nude human bodies,” id., at 19. An exhibit attached to the complaint set out a May 12,1995 Stipulation for Settlement with DEP. Id., at 22-23. That settlement had facilitated a February 19, 1996 play Wyner coordinated at MacArthur Beach, a production involving nude performers. A term of the settlement provided that Wyner would “arrange for placement of a bolt of cloth in a semi-circle around the area where the play [would] be performed,” id., at 23, so that beachgoers who did not wish to see the play would be shielded from the nude performers.

The day after the complaint was filed, on February 13, 2003, the District Court heard Wyner’s emergency motion for a preliminary injunction. Although disconcerted by the hurried character of the proceeding, see id., at 37, 93, 95, the court granted the preliminary injunction. “The choice,” the court explained, “need not be either/or.” Wyner v. Struhs, 254 F. Supp. 2d 1297, 1303 (SD Fla. 2003). Pointing to the May 1995 settlement laying out “agreed-upon manner restrictions,” the court determined that “[p]laintiff[’s] desired expression and the interests of the state may both be satisfied simultaneously.” Ibid. In this regard, the court had inquired of DEP’s counsel at the preliminary injunction hearing: “Why wouldn’t the curtain or screen solve the problem of somebody [who] doesn’t want to see . .. nudity? Seems like that would solve [the] problem, wouldn’t it?” App. 86. Counsel for DEP responded: “That’s an option. I don’t think necessarily [defendants] would be opposed to that----” Ibid.; see id., at 74 (testimony of Chief of Operations for Florida Park Service at the preliminary injunction hearing that the Service’s counsel, on prior occasions, had advised: “[I]f they go behind the screen and they liv[e] up to the agreement then it’s okay. If they don’t go behind the screen and they don’t live up to the agreement then it’s not okay.”):

The peace symbol display took place at MacArthur Beach the next day. A screen was put up, apparently by the State, as the District Court anticipated. See id., at 108. See also id., at 94 (District Judge’s statement at the conclusion of the preliminary injunction hearing: “I want to make it clear ... that the [preliminary] injunction doesn’t preclude the department, if it chooses, from using... some sort of barrier____”). But the display was set up outside the barrier, and participants, once disassembled from the peace symbol formation, went into the water in the nude. See id., at 108; Deposition of T. A. Wyner in Case No. 03-80103-CIV (SD Fla., Nov. 14, 2003), pp. 99-100.

. Thereafter, Wyner pursued her demand for a permanent injunction. Her counsel represented that on February 14, 2004, Wyner intended to put on another production at MacArthur Beach, again involving nudity. See App. 107. After discovery, both sides moved for summary judgment. At the hearing on the motions, held January 21, 2004, the' District Court asked Wyner’s counsel about the screen put up around the preceding year’s peace symbol display. Counsel acknowledged that the participants in that display ignored the barrier and set up in front of the screen. Id., at 108.

A week later, having unsuccessfully urged the parties to resolve the case as “[they] did before in [the 1995] settlement,” id., at 143, the court denied plaintiff’s motion for summary judgment and granted defendants’ motion for summary final judgment. The deliberate failure of Wyner and her co-participants to remain behind the screen at the 2003 Valentine’s Day display, the court concluded, demonstrated that the Bathing Suit Rule’s prohibition of nudity was “no greater than is essential... to protect the experiences of the visiting public.” Wyner v. Struhs, Case No. 03-80103-CIV (SD Fla., Jan. 28, 2004) (Summary Judgment Order), App. to Pet. for Cert. 42a. While Wyner ultimately failed to prevail on the merits, the court added, she did obtain a preliminary injunction prohibiting police interference with the Valentine’s Day 2003 temporary art installation, id., at 45a, and therefore qualifiéd as a prevailing party to that extent, see Wyner v. Struhs, Case No. 03-80103-CIV (SD Fla., Aug. 16, 2004) (Omnibus Order), App. to Brief in Opposition 5a-13a. The preliminary injunction could not be revisited at the second stage of the litigation, the court noted, for it had “expired on its own terms.” Id., at 4a. So reasoning, the court awarded plaintiff counsel fees covering the first phase of the litigation.

The Florida officials appealed, challenging both the order granting a preliminary injunction and the award of counsel fees. Wyner, however, pursued no appeal from the final order denying a permanent injunction. The Court of Appeals for the Eleventh Circuit held first that defendants’ challenges to the preliminary injunction were moot because they addressed “a finite event that occurred and ended on a specific, past date.” Wyner v. Struhs, 179 Fed. Appx. 566, 567, n. 1 (2006) (per curiam). The court then affirmed the counsel fees award, reasoning that plaintiff had gained through the preliminary injunction “the primary relief [she] sought,” i. e., the preliminary order allowed her to present the peace symbol display unimpeded by adverse state action. Id., at 569.

Wyner would not have qualified for an award of counsel fees, the court recognized, had the preliminary injunction rested on a mistake of law. Id., at 568, 569-570. But it was “new developments,” the court said, id., at 569, not any legal error, that accounted for her failure “to achieve actual success on the merits at the permanent injunction stage,” id., at 569, n. 7. Plaintiff and others participating in the display, as Wyner’s counsel admitted, did not stay behind the barrier at the peace symbol display, id., at 569; further, the court noted, “a fair reading of the record show[ed] that [p]laintif[f] had no intention of remaining behind a [barrier] during future nude expressive works,” ibid. The likelihood of success shown at the preliminary injunction stage, the court explained, id., at 569, n. 7, had been overtaken by the subsequent “demonstrat[ion] that the less restrictive alternative,” i. e., a cloth screen or other barrier, “was not sufficient to protect the government’s interest,” id., at 569. But that demonstration, the court concluded, did not bar an award of fees, because the “new facts” emerged only at the summary judgment stage. Ibid. We granted certiorari, Struhs v. Wyner, 549 U. S. 1162 (2007), and now reverse.

II

“The touchstone of the prevailing party inquiry,” this Court has stated, is “the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792-793 (1989). See Hewitt v. Helms, 482 U. S. 755, 760 (1987) (plaintiff must “receive at least some relief on the merits of his claim before he can be said to prevail”); Maher v. Gagne, 448 U. S. 122, 129 (1980) (upholding fees where plaintiffs settled and obtained a consent decree); cf. Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 605 (2001) (precedent “counsel[s] against holding that the term ‘prevailing party’ authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties”). The petitioning state officials maintain that plaintiff here does not satisfy that standard for, as a consequence of the final summary judgment, “[t]he state law whose constitutionality [Wyner] attacked[, i. e., the Bathing Suit Rule,] remains valid and enforceable today.” Brief for Petitioners 3. The District Court left no doubt on that score, the state officials emphasize; ordering final judgment for defendants, the court expressed, in the bottom line of its opinion, its “hope” that plaintiff would continue to use the park, “albeit not in the nude.” Summary Judgment Order, App. to Pet. for Cert. 46a.

Wyner, on the other hand, urges that despite the denial of a permanent injunction, she got precisely what she wanted when she commenced this litigation: permission to create the nude peace symbol without state interference. That fleeting success, however, did not establish that she prevailed on the gravamen of her plea for injunctive relief, i. e., her charge that the state officials had denied her and other participants in the peace symbol display “the right to engage in constitutionally protected expressive activities.” App. 18. Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.

At the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff’s ultimate success on the merits. See, e. g., Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 (2004); Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975). The foundation for that assessment will be more or less secure depending on the thoroughness of the exploration undertaken by the parties and the court. In some cases, the proceedings prior to a grant of temporary relief are searching; in others, little time and resources are spent on the threshold contest.

In this case, the preliminary injunction hearing was necessarily hasty and abbreviated. Held one day after the complaint was filed and one day before the event, the timing afforded the state officer defendants little opportunity to oppose Wyner’s emergency motion. Counsel for the state defendants appeared only by telephone. App. 36. The emergency proceeding allowed no time for discovery, nor for adequate review of documents or preparation and presentation of witnesses. See id., at 38-39. The provisional relief immediately granted expired before appellate review could be gained, and the court’s threshold ruling would have no preclusive effect in the continuing litigation. Both the District Court and the Court of Appeals considered the preliminary injunction a moot issue, not fit for reexamination or review, once the display took place. See Summary Judgment Order, App. to Pet. for Cert. 34a; Omnibus Order, App. to Brief in Opposition 3a-4a; 179 Fed. Appx., at 567, n. 1; cf. Lewis v. Continental Bank Corp., 494 U. S. 472, 477-479 (1990). In short, the provisional relief granted terminated only the parties’ opening engagement. Its tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial stage premature.

Of controlling importance to our decision, the eventual ruling on the merits for defendants, after both sides considered the case fit for final adjudication, superseded the preliminary ruling. Wyner’s temporary success rested on a premise the District Court ultimately rejected. That court granted preliminary relief on the understanding that a curtain or screen would adequately serve Florida’s interest in shielding the public from nudity that recreational beach users did not wish to see. See supra, at 79-80; 254 F. Supp. 2d, at 1303 (noting that the parties had previously agreed upon “a number of... manner restrictions that are far less restrictive than the total ban on nudity”). At the summary judgment stage, with the benefit of a fuller record, the District Court recognized that its initial assessment was incorrect. Participants in the peace symbol display were in fact unwilling to stay behind a screen that separated them from other park visitors. See Summary Judgment Order, App. to Pet. for Cert. 42a. See also App. 108 (acknowledgment by Wyner’s counsel that participants in the February 14, 2003 protest “in effee[t] ignored the screen”). In light of the demonstrated inadequacy of the screen to contain the nude display, the District Court determined that enforcement of the Bathing Suit Rule was necessary to “preserv[e] park aesthetics” and “protect the experiences of the visiting public.” Summary Judgment Order, App. to Pet. for Cert. 41a, 42a.

Wyner contends that the preliminary injunction was not undermined by the subsequent adjudication on the merits because the decision to grant preliminary relief was an “as applied” ruling. In developing this argument, she asserts that the officials engaged in impermissible content-based administration of the Bathing Suit Rule. But the District Court assumed, “for the purposes of [its initial] order,” the content neutrality of the state officials’ conduct. See 254 F. Supp. 2d, at 1302. See also 179 Fed. Appx., at 568, and n. 4 (reiterating that, “for the sake of the preliminary injunction order,” the District Court “assumed content neutrality”). That specification is controlling. See Fed. Rule Civ. Proc. 65(d) (requiring every injunction to “set forth the reasons for its issuance” and “be specific in terms”). See also Schmidt v. Lessard, 414 U. S. 473, 476 (1974) (per curiam) (Rule 65(d) “was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders.”).

The final decision in Wyner’s case rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks was unconstitutional as applied to expressive, nonerotic nudity. At the end of the fray, Florida’s Bathing Suit Rule remained intact, and Wyner had gained no enduring “chang[e] [in] the legal relationship” between herself and the state officials she sued. See Texas State Teachers Assn., 489 U. S., at 792.

Ill

Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral. A plaintiff who “secur[es] a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against [her],” has “[won] a battle but los[t] the war.” Watson v. County of Riverside, 300 F. 3d 1092, 1096 (CA9 2002). We are presented with, and therefore decide, no broader issue in this case.

We express no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees. We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under § 1988(b) if the merits of the case are ultimately decided against her.

* * *

For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       The rule reads: “In every area of a park including bathing areas no individual shall expose the human, male or female genitals, pubic area, the entire buttocks or female breast b.elow the top of the nipple, with less than a fully opaque covering.” Fla. Admin. Code Ann. § 62D~2.014(7)(b) (2005).

       Wyner was joined by coplaintiff George Simon, who served as a videographer for expressive activities Wyner previously organized at MacArthur Beach. See App. 13. For convenience, we refer to the coplaintiffs collectively as Wyner or plaintiff.

        Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 600 (2001), held that the term “prevailing party” in the fee-shifting provisions of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990 does not “includfe] a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” The dissent in Buekhannon would have deemed such a plaintiff “prevailing,” not because of any temporary relief gained (in that case, a consent stay pending litigation), but because the lawsuit caused the State to amend its laws, terminating the controversy between the parties, and permanently giving plaintiff the real-world outcome it sought. See id,., at 622, 624-625 (opinion of Ginsburg, J.). Our decision today is consistent with the views of both the majority and the dissenters in Buekhannon.

         In resolving Wyner’s claim for counsel fees, we express no opinion on the dimensions of the First Amendment’s protection for artworks that involve nudity.


author: Per Curiam.

text:
    CLAIBORNE v. UNITED STATES
    No. 06-5618.
    Argued February 20, 2007
    Decided June 4, 2007

      Michael Dwyer argued the cause for petitioner. With him on the briefs were Lee T. Lawless and David Hemingway.

      Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Dan Himmelfarb, Matthew D. Roberts, Nina Goodman, and Jeffrey P. Singdahlsen

       Briefs of amici curiae urging reversal were filed for Families Against Mandatory Minimums by Gregory L. Poe, Mary Price, and Peter Goldberger; for Federal Public and Community Defenders et al. by Thomas W. Hillier II, Amy Baron-Evans, Laura E. Mate, and Sara E. Noonan; for the National Association of Criminal Defense Lawyers by Miguel A. Estrada, David Debold, and Jeffrey L. Fisher; for the New York Council of Defense Lawyers by Alexandra A E. Shapiro and Paul H. Schwartz; for the Sentencing Project et al. by Matthew M. Shors and Pammela Quinn; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.

        Robert E. Toone and Katherine J. Fick filed a brief for Senator Edward M. Kennedy et al. as amici curiae urging affirmance.
      Briefs of amici curiae were filed for Law Professors Who Study Sentencing Reform by Edward S. Lee; and for the United States Sentencing Commission by David C. Frederick and Pamela O. Barron.

   Per Curiam.

The Court is advised that the petitioner died in St. Louis, Missouri, on May 30, 2007. The judgment of the United States Court of Appeals for the Eighth Circuit is therefore vacated as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

It is so ordered.


author: Per Curiam. Justice Thomas,

text:
    ERICKSON v. PARDUS ET AL.
    No. 06-7317.
    Decided June 4, 2007
   Per Curiam.

Imprisoned by the State of Colorado and alleging violations of his Eighth and Fourteenth Amendment protections against cruel and unusual punishment, William Erickson, the petitioner in this Court, filed suit against prison officials in the United States District Court for the District of Colorado. He alleged that a liver condition resulting from hepatitis C required a treatment program that officials had commenced but then wrongfully terminated, with life-threatening consequences. Deeming these allegations, and others to be noted, to be “conclusory,” the Court of Appeals for the Tenth Circuit affirmed the District Court’s dismissal of petitioner’s complaint. 198 Fed. Appx. 694,698 (2006). The holding departs in so stark a manner from the pleáding standard mandated by the Federal Rules of Civil Procedure that we grant review. We vacate the court’s judgment and remand the case for further consideration.

Petitioner was incarcerated in the Limón Correctional Facility in Limón, Colorado, where respondents Barry Pardus and Dr. Anita Bloor were working as prison officials. After Dr. Bloor removed petitioner from the hepatitis C treatment he had been receiving, petitioner sued under Rev. Stat. § 1979, 42 U. S. C. § 1983, complaining, inter alia, that Dr. Bloor had violated his Eighth Amendment rights by demonstrating deliberate indifference to his serious medical needs. See, e. g., Estelle v. Gamble, 429 U. S. 97, 104-105 (1976) (“[Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . .. proscribed by the Eighth Amendment,” and this includes “indifference . . . manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed” (footnotes and internal quotation marks omitted)); see also Helling v. McKinney, 509 U. S. 25, 35-37 (1993).

Petitioner based his claim on the following1 allegations, which we assume to be true for purposes of review herd: Officials at Colorado’s Department of Corrections (Department) diagnosed petitioner as requiring treatment for hepatitis C. After completing the necessary classes arid otherwise complying with the protocols set forth by the Department, petitioner began treatment for the disease. The treatment, which would take a year to complete, involved weekly self-injections of medication by use of a syringe. Soon after petitioner began this treatment, prison officials were unable to account for one of the syringes made available to petitioner (and other prisoners) for medical purposes. Upon searching, they found it in a communal trash can, modified in a manner suggestive of use for injection of illegal drugs. Prisoner Complaint in Civ. Action No. 05-CV-00405-LTB-MJW (D. Colo.), p. 3 (hereinafter Petitioner’s Complaint).

Prison officials, disbelieving petitioner’s claim not to have taken the syringe, found that his conduct constituted a violation of the Colorado Code of Penal Discipline for possession of drug paraphernalia. Letter from Anthony A. DeCesaro to William Erickson (Sept. 30,2004), attached to Petitioner’s Complaint. This conduct, according to the officials, led to the “reasonable inference” that petitioner had intended to use drugs, so the officials removed petitioner from his hepatitis C treatment. Ibid. “The successful treatment of Hepatitis C is incumbent upon the individual remaining drug and alcohol free to give the liver a better chance of recovery,” they indicated, ibid., an explanation they later offered to defend against petitioner’s allegations of cruel and unusual punishment, see Defendants’ Motion to Dismiss in Civ. Action No. 05-CV-00405-LTB-MJW, p. 10. Assuming that a person in the course of this treatment takes illicit drugs, the prison’s protocol mandates a waiting period of one year followed by a mandatory drug education class lasting six months. Brief in Opposition 4. Petitioner therefore could face a delay of some 18 months before he would be able to restart treatment.

In his complaint petitioner alleged Dr. Bloor had “removed [him] from [his] hepatitis C treatment” in violation of Department protocol, “thus endangering [his] life.” Petitioner’s Complaint 2. Petitioner attached to the complaint certain grievance forms. In these he claimed, among other things, he was suffering from “continued damage to [his] liver” as a result of the nontreatment. Colorado Dept, of Corrections Offender Grievance Form (June 30, 2004). The complaint requested relief including damages and an injunction requiring that the Department treat petitioner for hepatitis C “under the standards of the treatment [protocol] established by [the Department].” Petitioner’s Complaint 8.

Three months after filing his complaint, and well before the District Court entered a judgment against him, petitioner filed a Motion for Expedited Review Due to Imminent Danger in Civ. Action No. 05-B-405 (M JW) (D. Colo.). Indicating it was “undisputed” that he had hepatitis C, that he met the Department’s standards for treatment of the disease, and that “fiirtherance of this disease can cause irreversible damage to [his] liver and possible death,” petitioner alleged that “numerous inmates” in his prison community had died of the disease and that he was “in imminent danger” himself “due to [the Department’s] refusal to treat him.” Ibid. He had identified similar allegations in an earlier filing, explaining that “his liver is suffering irreversible damage” due to the decision to remove him from treatment and that he “will suffer irreparable damage if his disease goes untreated.” Plaintiff’s Objections to the Magistrate’s Recommendations in Civ. Action No. 05-CV-00405-LTB-MJW (Feb. 27, 2005), p. 3.

Respondents answered these filings with a motion to dismiss. The Magistrate Judge recommended, as relevant, that the District Court dismiss the complaint on the ground it failed to allege Dr. Bloor’s actions had caused petitioner “substantial harm.” Recommendation on Defendants’ Motion to Dismiss (Feb. 9, 2006), p. 12. The District Court issued a short order indicating its agreement with the Magistrate Judge and dismissing the complaint.

The Court of Appeals affirmed. It quoted extensively . from the Magistrate Judge’s discussion of “substantial harm” before holding that petitioner had made “only conclusory allegations to the effect that he has . suffered a cognizable independent harm as a result of his removal from the [hepatitis C] treatment program.” 198 Fed. Appx., at 698. Acknowledging decisions by courts that have found Eighth Amendment violations when delays in medical treatment have involved “life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner’s medical problems” (and that have, moreover, indicated the Eighth Amendment “protects against future harm to an inmate”), id., at 697 (internal quotation marks omitted), the court nevertheless found petitioner’s complaint deficient: Petitioner had, according to the court, failed to “allege that as a result of the discontinuance of the treatment itself shortly after it began or the interruption of treatment for approximately eighteen months he suffered any harm, let alone substantial harm, [other] than what he already faced from the Hepatitis C itself,” id., at 698 (internal quotation marks omitted). Having reached this conclusion, the court saw no need to address whether the complaint alleged facts sufficient to support a finding that Dr. Bloor had made her decisions with a “sufficiently culpable state of mind.” Id., at 697, 698 (internal quotation marks omitted).

It may in the final analysis be shown that the District Court was correct to grant respondents’,motion to dismiss. That is not the issue here, however. It was error for the Court of Appeals to conclude that the allegations in question, concerning harm caused petitioner by the termination of his medication, were too conclusory to establish for pleading purposes that petitioner had suffered “a cognizable independent harm” as a result of his removal from the hepatitis C treatment program. Id., at 698.

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not necessary; the statement need only “ ‘give the defendant fair notice of what the . .. claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U. S. 41, 47 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Bell Atlantic Corp., supra, at 555-556 (citing Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002); Neitzke v. Williams, 490 U. S. 319, 327 (1989); Scheuer v. Rhodes, 416 U. S. 232, 236 (1974)).

The complaint stated that Dr. Bloor’s decision to remove petitioner from his prescribed hepatitis C medication was “endangering [his] life.” Petitioner’s Complaint 2. It alleged this medication was withheld “shortly after” petitioner had commenced a treatment program that would take one year, that he was “still in need of treatment for this disease,” and that the prison officials were in the meantime refusing to provide treatment. Id., at 3, 4. This alone was enough to satisfy Rule 8(a)(2). Petitioner, in addition, bolstered his claim by making more specific allegations in documents attached to the complaint and in later filings.

The Court of Appeals’ departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case because petitioner has been proceeding, from the litigation’s outset, without counsel. A document filed pro se is “to be liberally construed,” Estelle, 429 U. S., at 106, and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,” ibid, (internal quotation marks omitted). Cf. Fed. Rule Civ. Proe. 8(f) (“All pleadings shall be so construed as to do substantial justice”).

Whether petitioner’s complaint is sufficient in all respects is a matter yet to be determined, for respondents raised multiple arguments in their motion to dismiss. In particular, the proper application of the controlling legal principles to the facts is yet to be determined. The case cannot, however, be dismissed on the ground that petitioner’s allegations of harm were too conclusory to put these matters in issue. Certiorari and leave to proceed in forma pauperis are granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia would deny the petition for a writ of certiorari.

Justice Thomas,

dissenting.

I have repeatedly stated that the Eighth Amendment’s prohibition on cruel and unusual punishment historically concerned only injuries relating to a criminal sentence. Farmer v. Brennan, 511 U. S. 825, 861 (1994) (opinion concurring in judgment); Helling v. McKinney, 509 U. S. 25, 42 (1993) (dissenting opinion); Hudson v. McMillian, 503 U. S. 1, 18-20 (1992) (same). But even applying the Court’s flawed Eighth Amendment jurisprudence, “I would draw the line at actual, serious injuries and reject the claim that exposure to the risk of injury can violate the Eighth Amendment.” Helling, supra, at 42 (Thomas, J., dissenting). Consistent with these views, I would affirm the judgment of the Court of Appeals. I respectfully dissent.