- Case
- Grijalva v. ADP Screening & Selection Services, Inc.
- Court
- U.S. Court of Appeals for the Ninth Circuit
- Citation
- No. 24-2984 (9th Cir. Aug. 15, 2025)
- Decided
- August 15, 2025
- Bottom line
- Old adverse records other than criminal convictions generally cannot appear in background checks after seven years, even when tied to a status that is still current.
Background
The FCRA’s obsolescence provision, 15 U.S.C. § 1681c(a)(5), bars consumer reporting agencies from including in a consumer report any adverse item of information, other than records of convictions of crimes, that “antedates the report by more than seven years.” It is a catch-all that covers many items not listed elsewhere in § 1681c.
Tracie Ann Grijalva’s certified nursing assistant license was revoked by the Arizona State Board of Nursing in 2011. As a result, the U.S. Department of Health and Human Services’ Office of Inspector General excluded her from federally funded health care programs. She remains on the federal exclusion lists. In 2020, she received a conditional job offer for a health care consulting customer service position. The employer ordered a background check from ADP Screening and Selection Services, which ran a government sanctions search and reported both her exclusion and that the basis for it was the 2011 license revocation.
Grijalva sued, alleging that both pieces of information violated § 1681c(a)(5). The district court granted summary judgment to ADP.
What the court held
The Ninth Circuit affirmed the judgment but disagreed with part of the district court’s reasoning. In a published opinion by Judge Bade, the panel held:
- Reporting the exclusion itself did not violate § 1681c(a)(5), because the exclusion is ongoing and therefore does not antedate the report by more than seven years.
- Reporting that the license was revoked in 2011, more than seven years before the report, did violate § 1681c(a)(5).
- ADP was nonetheless not liable, because its interpretation of the statute was not objectively unreasonable. Under Safeco Insurance Co. v. Burr, that defeats willfulness, and the panel held it also meant ADP did not act negligently.
Judge Clifton concurred in part and in the judgment. He agreed that reporting the ongoing exclusion was lawful and that ADP was not liable, but he would have held that reporting the reason for the exclusion did not violate the statute. He reasoned that an employer told only of an exclusion, without the reason, “would likely assume the worst,” since some grounds for exclusion are far less serious than others.
Our take
The majority’s holding on the merits is a meaningful statement of the law in the Ninth Circuit: an ongoing status does not carry its old underlying event forward in time. A background screener can say a person is currently on an exclusion list, but it cannot use that listing as a vehicle to report an adverse event that the seven-year rule otherwise bars. We think that reading respects the statute’s text, which looks to when the “item of information” occurred.
The liability holding is the part consumers will feel. Because the question was unsettled, ADP’s contrary reading was not objectively unreasonable, so Grijalva recovered nothing. That is how Safeco works, but it means the first person to establish a legal rule often cannot benefit from it. The upside is that the rule is now clearly established in the Ninth Circuit, which makes it harder for screeners to claim the same reading is reasonable in future cases.
Judge Clifton’s concurrence raises a fair policy point about context, and we expect screeners to cite it. The statute, though, already reflects Congress’s choice: convictions are exempt from the seven-year limit, and other adverse items are not.
What it means if your report is wrong
If a background check reports an old adverse event, such as a license action, civil judgment, or non-conviction record, more than seven years old, that may violate § 1681c(a)(5) unless an exception applies (for example, certain high-salary positions are exempt from the time limits). You have the right to a copy of the report used against you and to dispute it with the screening company. Note the date of the underlying event, not just the date of any current status that refers to it.
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Sources
Primary
Commentary we reviewed
Updated November 1, 2026. "Our take" is the firm's opinion. This page is general information, not legal advice, and later decisions may change the law.