Reginald Kirtz v. Trans Union LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________________

No. 21-2149

_______________________

REGINALD KIRTZ,

Appellant

v.

TRANS UNION LLC;

PENNSYLVANIA HIGHER EDUCATION ASSISTANCE

AGENCY,

doing business American Education Services;

UNITED STATES DEPARTMENT OF AGRICULTURE

RURAL DEVELOPMENT RURAL HOUSING SERVICE

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-20-cv-05231

District Judge: The Honorable Mitchell S. Goldberg

__________________________

Argued May 24, 2022

Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges

(Filed: August 24, 2022)

Nandan M. Joshi [ARGUED]

Allison M. Zieve

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

Matthew B. Weisberg

Weisberg Law

7 South Morton Avenue

Morton, PA 19070

Counsel for Appellant

Mark B. Stern [ARGUED]

Sarah W. Carroll

United States Department of Justice

Civil Division, Appellate Staff

Room 7511

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellee

__________________________

OPINION OF THE COURT

__________________________

KRAUSE, Circuit Judge

There are profound implications to throwing open the

doors to the United States Treasury, so before we do, we need

to be sure that is what Congress intended. Here, the District

Court dismissed Appellant Reginald Kirtz’s lawsuit against the

U.S. Department of Agriculture (“USDA”) for alleged

violations of the Fair Credit Reporting Act (“FCRA”), 15

U.S.C. § 1681 et seq, because it concluded the statute did not

clearly waive the United States’ sovereign immunity. The

2

District Court was in good company, as the Courts of Appeals

to have considered this issue are split down the middle, and

until today, we had not yet spoken. But our best indicator of

Congress’s intent is the words that it chose, and in our view,

the FCRA’s plain text clearly and unambiguously authorizes

suits for civil damages against the federal government. In

reaching a contrary conclusion, the District Court relied on its

determination that applying the FCRA’s literal text would

produce results that seem implausible. That may be, but

implausibility is not ambiguity, and where Congress has

clearly expressed its intent, we may neither second-guess its

choices nor decline to apply the law as written. Accordingly,

we will reverse and remand to the District Court for further

proceedings.

I.

In 1970, Congress enacted the FCRA to “ensure fair and

accurate credit reporting, promote efficiency in the banking

system, and protect consumer privacy.” Safeco Ins. Co. of Am.

v. Burr, 551 U.S. 47, 52 (2007). As originally enacted, the

FCRA imposed substantive requirements on consumer

reporting agencies and “persons” who used information in

credit reports. See Pub. L. No. 91-508, §§ 604-615, 84 Stat.

1114, 1129-33 (1970) (“1970 Act”). The 1970 Act also

expressly defined the term “person” as “any individual,

partnership, corporation, trust, estate, cooperative, association,

government or governmental subdivision or agency, or other

entity.” Id. § 603(b).

In 1996, Congress amended the FCRA to impose new

requirements on “persons,” such as creditors and lenders, who

furnish information to credit reporting agencies. See

Consumer Credit Reporting Reform Act of 1996, Pub. L. No.

3

104-208, § 2413, 110 Stat. 3009, 3009-447 to -449 (“1996

Amendments”). One such set of requirements is triggered

when consumers contact a consumer reporting agency to

dispute the accuracy of information in their credit file under

§ 1681i(a)(1)(A) of the FCRA. The consumer reporting

agency is required to send notice of the dispute to “any person

who provided any item of information in dispute”—that is, to

the furnisher of the information. 15 U.S.C. § 1681i(a)(2)(A).

When a furnisher receives such notice from a consumer

reporting agency, it must “conduct an investigation with

respect to the disputed information,” “modify,” “delete,” or

“block the reporting of” any information found to be

inaccurate, and “report the results of the investigation” to both

the consumer reporting agency that provided notice and, “if the

investigation finds that the information is incomplete or

inaccurate,” to “all other consumer reporting agencies” to

which the furnisher provided the disputed information. Id.

§ 1681s-2(b)(1).

If a furnisher of information negligently fails to comply

with these requirements—or any of the FCRA’s other

substantive requirements—§ 1681o authorizes consumers to

bring an action for actual damages, costs, and attorney’s fees.

If the failure to comply is willful, § 1681n further provides for

statutory and punitive damages. When §§ 1681n and 1681o

were originally enacted in 1970, they imposed liability only on

consumer reporting agencies and users of information, see Pub.

L. No. 91-508 at §§ 616-17, but when Congress expanded the

FCRA’s substantive requirements in the 1996 Amendments it

also expanded these sections to authorize suits against “[a]ny

person” who fails to comply with “any requirement” under the

Act, 15 U.S.C. §§ 1681n(a), 1681o(a).

4

This appeal arises from two loans issued to Reginald

Kirtz, one by the Pennsylvania Higher Education Assistance

Agency (“AES”), a “public corporation” authorized under

Pennsylvania law to make, guarantee, and service student

loans, 24 Pa. Stat. and Cons. Stat. §§ 5101, 5104(1), and the

other by the USDA through the Rural Housing Service, which

issues loans to promote the development of safe and affordable

housing in rural communities. Kirtz alleges that, as of June

2018, both of his loan accounts were closed with a balance of

zero. Despite this, AES and the USDA continued to report the

status of Kirtz’s accounts as “120 Days Past Due Date” on his

credit file from Trans Union LLC, resulting in damage to his

credit score. Pursuant to § 1681i(a)(1)(A) of the FCRA, Kirtz

sent a letter to Trans Union disputing the inaccurate statements

on his credit file, and Trans Union gave notice of the dispute

to both AES and the USDA per § 1681i(a)(2)(A). According

to Kirtz, however, neither AES nor the USDA took any action

to investigate or correct the disputed information, in violation

of § 1681s-2(b)(1).

Kirtz commenced this action against Trans Union, AES,

and the USDA on October 20, 2020, alleging both negligent

and willful violations of the FCRA under §§ 1681n and

1681o. 1 Both AES and Trans Union filed answers to Kirtz’s

1

Specifically, Kirtz alleged that AES and the USDA

failed to comply with the duties the FCRA imposes on

furnishers of information under § 1681s-2(b)(1), and that Trans

Union failed to comply with the duties the FCRA imposes on

credit reporting agencies to ensure the accuracy of the

information contained within credit reports under §§ 1681e(b),

1681i(a)(1)(A), and 1681i(a)(5).

5

Amended Complaint, but the USDA responded by filing a

motion to dismiss for lack of subject matter jurisdiction based

on the United States’ sovereign immunity. 2 See Fed. R. Civ.

P. 12(b)(1). The District Court agreed with the USDA that

§§ 1681n and 1681o did not unequivocally express Congress’s

intent to waive sovereign immunity and granted the USDA’s

motion to dismiss. Applying the statutory definition of

“person” to the civil liability provisions, the Court reasoned,

would require doing so throughout the FCRA, leading to

certain results that seemed implausible. Thus, the Court

rejected that reading, even recognizing those provisions

authorize suits against “[a]ny person,” and § 1681a(b)

expressly defines “person” to include any “government or

governmental subdivision or agency.”

II.

Kirtz originally invoked the District Court’s jurisdiction

under 15 U.S.C. § 1681p and 28 U.S.C. § 1331. We have

2

Though AES was established by the Pennsylvania

Legislature as “a public corporation and government

instrumentality,” 24 Pa. Stat. and Cons. Stat. § 5101, it is not

supported by tax revenue, is controlled by a largely

autonomous board of directors, and would be responsible for

paying any civil judgment against it from its own funds, rather

than those of the Commonwealth, see id. at §§ 5104(3),

5105.10. For these reasons, some courts have expressed doubt

as to whether AES shares Pennsylvania’s sovereign immunity

from suit. See, e.g., United States ex rel. Oberg v. Pa. Higher

Educ. Assistance Agency, 804 F.3d 646, 650 (4th Cir. 2015).

Because AES did not move to dismiss on sovereign immunity

grounds, however, the District Court did not consider that

issue, and it is consequently not implicated in this appeal.

6

jurisdiction under 28 U.S.C. § 1291. We review the District

Court’s legal conclusion that the FCRA does not waive the

federal government’s sovereign immunity de novo. See Karns

v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018).

The sole question at issue in this appeal is whether

§§ 1681n and 1681o of the FCRA waive the USDA’s

sovereign immunity. We have not addressed this question, but

four other Courts of Appeals have. The District Court aligned

itself with the Fourth and Ninth Circuits, which concluded that

the United States is not subject to liability under the FCRA. See

Robinson v. United States Dep’t of Educ., 917 F.3d 799 (4th

Cir. 2019); Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir.

2018). The D.C. and Seventh Circuits, on the other hand, have

reached the opposite conclusion, holding that the FCRA’s plain

language indeed waives the United States’ sovereign

immunity. See Mowrer v. United States Dep’t of Transp., 14

F. 4th 723 (D.C. Cir. 2021); Bormes v. United States, 759 F.3d

793 (7th Cir. 2014). For the reasons that follow, we agree with

the reasoning of the D.C. and Seventh Circuits and hold that

§§ 1681n and 1681o unequivocally waive the sovereign

immunity of the United States.

A.

The United States and its agencies—including the

USDA—enjoy sovereign immunity from suit, but Congress

may waive that immunity by enacting a statute that authorizes

suit against the government for damages or other relief. See

FAA v. Cooper, 566 U.S. 284, 290–91 (2012); Doe 1 v. United

States, 37 F.4th 84, 86–88 (3d Cir. 2022). Whether a statute

waives sovereign immunity is a question of statutory

interpretation. Any waiver must be “unequivocally expressed”

in the statutory text, Sossamon v. Texas, 563 U.S. 277, 284

7

(2011) (quoting Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 99 (1984)), but “Congress need not state its intent

in any particular way” and is “never required” to use “magic

words” to waive immunity, Cooper, 566 U.S. at 291. Rather,

if, after applying the “traditional tools of statutory

construction,” there is “no ambiguity,” courts must apply a

waiver as written, Richlin Sec. Serv. Co. v. Chertoff, 553 U.S.

571, 590 (2008), and may not “narrow [a] waiver that Congress

intended,” United States v. Idaho ex rel. Dir., Idaho Dep’t of

Water Res., 508 U.S. 1, 7 (1993) (internal quotation marks

omitted).

On the other hand, if the waiver is ambiguous—

meaning the language Congress purportedly used to waive

immunity is reasonably susceptible to more than one

meaning—then the sovereign immunity canon requires courts

to construe that ambiguity in favor of immunity. See Cooper,

566 U.S. at 290.

Importantly, while we speak of Congress’s “intent” to

waive sovereign immunity, our inquiry is limited the statutory

text. Legislative history may neither supply a waiver that is

not present in the text nor destroy one that is. See Lane v. Pena,

518 U.S. 187, 192 (1996). Instead, if a waiver is “clearly

discernable from the statutory text in light of traditional

interpretive tools,” we must give effect to it. Cooper, 566 U.S.

at 291. For the reasons that follow, we hold that §§ 1681n and

1681o of the FCRA satisfy this standard.

B.

1.

8

The FCRA provides that any “person” who either

negligently or willfully “fail[s] to comply with any

requirement imposed under [the FCRA] with respect to any

consumer is liable to that consumer” for civil damages. 15

U.S.C. §§ 1681n(a), 1681o(a). The FCRA also expressly

defines the term “person” to include any “government or

governmental subdivision or agency.” Id. § 1681a(b). The

term “person” is usually presumed to not include the sovereign.

See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529

U.S. 765, 780–81 (2000). But that presumption only applies

“[i]n the absence of an express statutory definition[.]” Return

Mail, Inc. v. United States Postal Serv., 139 S. Ct. 1853, 1861-

62 (2019). And here, the FCRA contains such an express

definition: it defines “person” to include any “government or

governmental subdivision or agency.” 15 U.S.C. § 1681a(b).

This definition, moreover, explicitly applies “for

purposes of this subchapter,” id. at § 1681a(a), meaning

subchapter III of chapter 41 of Title 15, containing the entirety

of the FCRA, including both its substantive requirements and

its enforcement provisions, see id. §§ 1681–1681x. Indeed,

where Congress wanted to use a different or narrower

definition of “person” within the FCRA, it knew how to do so:

§ 1681g, for example, imposes certain disclosure obligations

on “[a]ny person who makes or arranges loans and who uses a

consumer credit score,” 15 U.S.C. § 1681g(g)(1), but that

section explicitly excludes from the FCRA’s definition of

“person” any “enterprise” as defined in a separate statute, id.

§ 1681g(g)(1)(G). We presume, therefore, that Congress’s

failure to do so in §§ 1681n and 1681o was deliberate and

intended to convey the full statutory definition. And that

presumption is buttressed by the fact that § 1681n clearly

distinguishes between “natural person” and the statutorily-

9

defined term “person.” See id. § 1681n(a)(1)(B), n(a).

Together, these statutory provisions demonstrate that Congress

intended for the term “person” in the civil liability provisions

to carry its expressly defined meaning, rather than a narrower

or a colloquial meaning.

Nor is there ambiguity about whether that express

definition—covering “any . . . government or governmental

subdivision or agency”—encompasses the United States and

its agencies, including the USDA. Id. § 1681a(b). As a general

matter, Congress uses the expansive modifier “any” to bring

within a statute’s reach all types of an item. See, e.g., Republic

of Iraq v. Beaty, 556 U.S. 848, 856 (2009); Ali v. Fed. Bureau

of Prisons, 552 U.S. 214, 218–220 (2008). That it intended as

much here is apparent from § 1681a(d)(2)(D), which excludes

from the definition of “consumer report” any communications

“described in” § 1681a(y), 3 which relates, inter alia, to

employment-based communications that are “not provided to

any person except . . . any Federal or State officer, agency, or

department,” 15 U.S.C. § 1681a(y)(1)(D)(ii). Were federal

agencies and departments already excluded from the FCRA’s

definition of “person,” there would be no need for these carve-

outs.

Likewise, § 1681b(b)(3)(A) imposes obligations on

“person[s]” who make adverse employment decisions based on

credit reports but makes an exception “[i]n the case of an

agency or department of the United States Government” if that

3

Due to a drafting error, § 1681a(d)(2)(D) actually

refers to § 1681a(x), but the accompanying notes make clear

that the reference should be to subsection (y). See 15 U.S.C.

§ 1681a note (References in Text Notes).

10

agency or department makes certain written findings. Id.

§ 1681b(b)(4)(A). Again, this exception would be entirely

superfluous if federal agencies and departments were not

otherwise included as “persons” within the FCRA’s

definition. 4

Even the Fourth and Ninth Circuits, though ultimately

concluding that Congress did not waive the United States’

sovereign immunity, do not dispute that the United States must

4

Other examples abound. For example, the FCRA only

permits credit reporting agencies to furnish credit reports in six

circumstances “and no other:” (1) pursuant to a court order;

(2) pursuant to the written instructions of the consumer; (3) to

“person[s]” whom the credit reporting agencies believe intend

to use the information for specified purposes; (4) in response

to a request from the head of a state or local child support

agency; (5) to an agency administering a State child support

plan; and (6) to the Federal Deposit Insurance Corporation or

the National Credit Union Administration pursuant to

applicable federal law. 15 U.S.C. § 1681b(a)(1)–(6). If the

United States and its agencies were not “persons,” within the

FCRA’s definition, credit reporting agencies would not be able

to legally provide them with credit reports. Similarly, when a

consumer disputes the accuracy of information in a credit

report, § 1681i only requires credit reporting agencies to

provide notice of disputes to “persons” who furnished the

disputed information. Id. § 1681i(a)(2). Reading the

government out of the definition of “person” would thus

eliminate the sole means by which the FCRA allows

consumers to dispute information furnished by the nation’s

largest employer and creditor.

11

be a “person” for purposes of the FCRA’s substantive

requirements; 5 rather, they draw a distinction between the

Act’s substantive and enforcement provisions. See Robinson,

917 F.3d at 806; Daniel, 891 F.3d at 773. But that distinction

is wholly artificial. The FCRA could not be clearer that its

definitions apply to the entire subchapter, see 15 U.S.C.

§ 1681a(a), and there is nothing in the text of the FCRA’s civil

liability provisions nor its other enforcement provisions to the

contrary. Nor do these courts cite any authority to support such

a departure from the statutory text.

In sum, we agree with the Seventh and D.C. Circuits

that the plain text of the statute operates as a waiver of

sovereign immunity: “[O]nce it is conceded that ‘any . . .

government’ includes the United States . . . there is no basis for

denying that the same definition governs FCRA’s private

damages actions.” 6 Mowrer, 14 F.4th at 730.

5

The United States itself conceded that it was a

“person” within the FCRA’s definition in Bormes, although it

did not do so in Robinson or Daniel. Compare Bormes, 759

F.3d at 795, with Robinson, 917 F.3d at 806, and Daniel, 891

F.3d at 773.

6

The USDA suggests that, in order to waive sovereign

immunity, Congress may not simply define a term like

“person” to include the government in a general definitional

section and then use that term in a later liability section, but

that it must instead authorize suit against the government in the

liability section itself. The Supreme Court, however, has

“never required that Congress make its clear statement in a

single section or in statutory provisions enacted at the same

time[.]” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 76 (2000).

12

2.

Our reading of the FCRA’s plain text is reinforced by a

comparison with the Truth in Lending Act (“TILA”), 15 U.S.C.

§ 1601 et seq., and the Equal Credit Opportunity Act

(“ECOA”), 15 U.S.C. § 1691 et seq., both of which are

codified alongside the FCRA in Chapter 41 of Title 15. Like

the FCRA, the TILA and ECOA define “person” to include any

“government or governmental subdivision or agency,” and

each includes “person” in its definition of the term “creditor.”

See 15 U.S.C. §§ 1602(d)–(g), 1691a(e)–(f). Both statutes also

authorize suits for civil damages against any “creditor” who

violates their substantive requirements, using nearly identical

language to the FCRA’s civil liability provisions. Compare 15

U.S.C. § 1640(a) (“[A]ny creditor who fails to comply with

any requirement imposed under [the TILA] . . . with respect to

any person is liable to such person . . . .”), and 15 U.S.C.

§ 1691e(a) (“Any creditor who fails to comply with any

requirement imposed under [the ECOA] shall be liable to the

aggrieved applicant . . . .”), with 15 U.S.C. § 1681n(a) (“Any

person who willfully fails to comply with any requirement

imposed under [the FCRA] with respect to any consumer is

liable to that consumer . . . .”).

The surrounding statutory context of each statute

confirms that Congress understood the use of the defined term

“person” to signal an unambiguous waiver of sovereign

immunity. The TILA, for example, includes a provision that

expressly preserves the United States’ sovereign immunity

against civil suits. See 15 U.S.C § 1612(b); see Moore v.

United States Dep’t. of Agriculture, 55 F.3d 991, 994 (5th Cir.

1995). Similarly, while the ECOA also authorizes punitive

damages against “creditors,” it expressly exempts any

“government or governmental subdivision or agency.” 15

13

U.S.C § 1691e(b). As these examples make plain, Congress

understood in the contexts of the TILA and ECOA that

authorizing suits against “any creditor”—i.e., any “person”—

would otherwise suffice to waive sovereign immunity, 7 and

legislated against that statutory background when it enacted the

1996 FCRA Amendments. 8 Indeed, since 1996, Congress has

amended the FCRA to expressly incorporate the ECOA’s

definition of “creditor,” and thus its definition of “person.” See

15 U.S.C. § 1681a(r)(5) (1998). These statutory parallels and

cross-references provide additional evidence that the FCRA

authorizes civil damages against “any person,” without any

exemption for the United States government.

3.

7

In distinguishing the ECOA waiver, the District Court

stressed that neither of the FCRA’s civil liability provisions

contains an exemption for government entities similar to that

found in § 1691e(b). But the inference is the exact opposite: It

is the express authorization of suits against “any creditor” in

§ 1691e(a) that waives sovereign immunity, not the

government exemption in subsection § 1691e(b), which

merely confirms the existence of the waiver. Put another way,

if Congress eliminated subsection (b) tomorrow, the waiver in

subsection (a)—which is nearly identical to the FCRA’s

waiver—would remain clear and unambiguous.

8

The civil liability provision of the TILA was enacted

in 1980 and the relevant provision of the ECOA in 1991. And

by 1996 at least one Court of Appeals had already interpreted

the ECOA to unambiguously waive the United States’

sovereign immunity. See Moore, 55 F.3d at 994.

14

The USDA challenges our interpretation by pointing to

the original 1970 version of the FCRA, which also defined

“person” to include the government but did not impose civil

liability on “persons”—only on “consumer reporting

agenc[ies] [and] user[s] of information.” Pub. L. No. 91-508

at §§ 616-617. The USDA argues that the FCRA’s definition

of “person” could not have waived the United States’ sovereign

immunity in 1970 and that there is nothing in the text or

legislative history of the 1996 Amendments to signal a change

in Congress’s intent. This argument, however, ignores

Congress’s decision to extend civil liability under the 1996

Amendments beyond consumer reporting agencies and users

of information to “persons,” a term expressly encompassing

the United States and thus signaling a waiver of sovereign

immunity absent an exemption.

We also take issue with the USDA’s premise. The 1970

Act imposed civil liability on all “user[s] of information” who

violated its requirements, and while the statute did not

expressly define “user[s] of information,” it did prohibit

consumer reporting agencies from providing credit reports

except to “person[s]” whom the agency had reason to believe

would “use the information” for specified purposes. Pub. L.

No. 91-508 at §§ 604(3), 616-617. If only “person[s]” could

be “users of information,” then the 1970 Act’s civil liability

provisions would appear to authorize suit against any “person”

who uses credit information, including the United States. 9

9

The Seventh and D.C. Circuits have also suggested

that the 1970 Act may have waived the United States’

sovereign immunity. See Mowrer, 14 F. 4th at 730 n.1;

Bormes, 759 F.3d at 795. The Ninth Circuit, however, rejected

this reading based on the fact that the 1970 Act only imposed

15

In any event, even if the USDA is correct that the 1970

Act did not waive sovereign immunity, we are focused today

on interpreting the 1996 Amendments, and those Amendments,

in clear and unambiguous terms, authorize suits against all

“persons,” including the United States.

4.

We also find it significant that, in addition to imposing

liability on “any person,” Congress also authorized suits for

failure to comply with “any requirement imposed under [the

FCRA] with respect to any consumer[.]” 15 U.S.C.

§§ 1681n(a), 1681o(a). As previously discussed, the United

States is subject to the FCRA’s substantive requirements as

both a furnisher and a user of credit information, see id.

§§ 1681s-2, 1681b(b)(3), so even if the FCRA did not

expressly impose liability on the United States as a “person,”

the plain text would appear to authorize suit for violations of

“any requirement” to which the FCRA subjects the United

States.

This reading finds support in the Supreme Court’s

decision in Lane v. Pena, 518 U.S. 187 (1996). In that case,

the Court considered a provision of the Rehabilitation Act of

1973 that authorized civil damages “to any employee or

applicant for employment” aggrieved by an employer’s

response to an EEOC complaint. 29 U.S.C. § 794a(a)(1).

Though that provision never references the United States

government nor any defined term like “person,” the

Rehabilitation Act expressly allows employees to file EEOC

criminal liability on “persons.” See Daniel 891 F.3d at 775 &

n.12. It does not appear to have considered that only “persons”

could be “user[s] of information” under the 1970 Act.

16

complaints against federal agencies. See id. § 791(f). Based

on this and § 794a(a)(1)’s “broad language” encompassing

“any complaint,” the Supreme Court held that the provision

expressly waived federal agencies’ sovereign immunity. Lane,

518 U.S. at 193. In contrast, a different provision of the

Rehabilitation Act that imposed liability only on a narrow class

of defendants who were “recipient[s] of Federal assistance or

Federal provider[s] of such assistance” did not speak broadly

enough to waive federal sovereign immunity. Id. at 192–93

(quoting 29 U.S.C. § 794a(a)(2)).

The same is arguably true here, where the FCRA both

imposes requirements on the United States and authorizes civil

damages for failure to comply with “any requirement.” We

need not now decide, however, if the FCRA’s “any

requirement” language would suffice on its own, as in Lane, to

effect a waiver of sovereign immunity. For today’s purposes,

it is enough to observe that Congress’s use of such broad

language lends further support to our reading.

5.

In the face of the FCRA’s clear text, the USDA tells us

to look instead to the statute’s legislative history. Our inquiry,

however, is limited to ascertaining Congress’s intent as

expressed in the text, and “[l]egislative history generally will

be irrelevant to a judicial inquiry into whether Congress

intended” to waive sovereign immunity. Dellmuth v. Muth,

491 U.S. 223, 230 (1989). For the reasons we have laid out,

the FCRA’s text is clear, and legislative history cannot create

ambiguity where there is none. See, e.g., Bostock v. Clayton

Cnty., 140 S. Ct. 1731, 1749 (2020).

17

Moreover, even if the legislative history put forward by

the USDA were relevant, it would not be persuasive. The

USDA provides no evidence that Congress sought to preserve

the federal government’s immunity; instead, it offers scattered

references by members of Congress to private furnishers of

credit information, such as banks and businesses, and asks us

to infer from Congress’s silence as to public furnishers its

intent to exclude them from civil liability. 10 But Congressional

silence can hardly be said to speak loudly, particularly when

viewed alongside clear statutory text. 11 Moreover, as Kirtz

points out, the USDA’s reliance on Congressional silence

would also mean that the federal government, because it was

10

The USDA also urges us to consider the

Congressional Budget Office’s analyses of antecedent versions

of the FCRA, none of which anticipated significant

government liabilities. Cf. Daniel, 891 F.3d at 775–76. But

the “CBO is not Congress,” Sharp v. United States, 580 F.3d

1234, 1239 (Fed. Cir. 2009), and its expertise is calculating

costs, not statutory interpretation; its views are thus immaterial

to our analysis.

11

This was not always so. As the USDA points out, the

Supreme Court has in the past been willing to disregard a clear

and unambiguous waiver of immunity based solely on silence

in the Congressional record. See Appellees’ Br. at 17 (citing

Emps. of the Dep’t of Pub. Health & Welfare v. Dep’t of Pub.

Health & Welfare, 411 U.S. 279, 282–87 (1973)). That era,

however, has long since passed, and today’s precedent makes

clear that our analysis must begin and end with the text. See

Cooper, 566 U.S. at 291; Seminole Tribe of Fla. v. Fla., 517

U.S. 44, 55–56 (1996); Dellmuth, 491 U.S. at 230.

18

not discussed in the floor debates, could not be subject to the

FCRA’s substantive requirements, which it clearly is.

C.

The District Court in this case was persuaded to follow

the Fourth and Ninth Circuits, each of which held that

Congress needed to be even clearer to meet the standard set by

other, more specific, waivers of sovereign immunity. It goes

without saying, though, that some waivers of sovereign

immunity will be more explicit than others. And the Supreme

Court has been clear that “Congress need not state its intent in

any particular way,” and that we may not impose any “magic

words” requirement. Cooper, 566 U.S. at 291. Thus, while

other waivers of sovereign immunity may provide helpful

points of reference, they do not dictate the manner in which

Congress must convey its intent, nor can they inject ambiguity

into otherwise clear text.

The Fourth and Ninth Circuits placed great emphasis on

a second, more specific waiver of sovereign immunity within

the FCRA itself. Section 1681u requires credit reporting

agencies to disclose certain credit information to the Federal

Bureau of Investigation for counterintelligence purposes and

permits the FBI to disseminate that information to other federal

agencies subject to specific requirements. See 15 U.S.C.

§ 1681u(a)–(b), (g). Where the FBI or “[a]ny agency or

department of the United States” fails to comply with

requirements on its use of consumers’ credit information,

§ 1681u(j) imposes statutory, actual, and punitive damages. Id.

§ 1681u(j). Contrasting the explicit reference to the United

States in this waiver with the terms of §§ 1681n and 1681o,

these Courts reasoned that Congress intended to waive

19

sovereign immunity only in the former. See Robinson, 917

F.3d at 803-04; Daniel, 891 F.3d at 771–72.

We are not persuaded. As the D.C. Circuit correctly

observed, “there is a good reason why [§ 1681u(j)] specifically

targets federal agencies,” which is that only federal agencies

are subject to § 1681u’s substantive requirements in the first

place. Mowrer, 14 F.4th at 729. In contrast, §§ 1681n and

1681o concern requirements that apply not merely to the

government but to “persons” generally, so it makes sense to

employ the broader term rather than enumerate specific entities

already encompassed by the statutory definition.

The Fourth and Ninth Circuits also contrasted §§ 1681n

and 1681o with other waivers in other statutes that specifically

authorize suits against the United States. See Robinson, 917

F.3d at 803; Daniel, 891 F.3d at 772–73. The Federal Tort

Claims Act (“FTCA”), for instance, provides that “[t]he United

States shall be liable . . . in the same manner and to the same

extent as a private individual under like circumstances[.]” 28

U.S.C. § 2674. Likewise, the Clean Water Act (“CWA”)

provides that “any citizen may commence a civil action . . .

against any person (including (i) the United States, and (ii) any

other governmental instrumentality or agency . . .).” 33 U.S.C.

§ 1365(a), (a)(1).

Again, however, there are reasonable explanations for

why each of these waivers lists the United States specifically.

The FTCA, like § 1681u(j) of the FCRA, only applies to the

federal government, so there is no need to name any other

entity as liable. And the CWA’s definition of “person,” unlike

the FCRA’s, only includes state and municipal governments,

meaning that the United States would not otherwise be

20

included in the Act’s waiver if it were not specifically included.

See 33 U.S.C. § 1362(5).

The last group of comparators on which the Fourth and

Ninth Circuits rely are those that explicitly reference the

federal government not only in defining the potential

defendants but again in imposing liability. The Resource

Conservation and Recovery Act (“RCRA”), for instance,

defines the term “person” to “include each department, agency,

and instrumentality of the United States,” but also includes

additional language in its liability provision authorizing suits

“against any person, including (a) the United States, and

(b) any other governmental instrumentality or agency . . . .” 42

U.S.C. §§ 6903(15), 6972; see also Robinson, 917 F.3d at 803;

Daniel, 891 F.3d at 771 n.5. Likewise, the USDA points to the

Family and Medical Leave Act (“FMLA”) and the Age

Discrimination in Employment Act (“ADEA”), each of which

defines “employer” to include any “public agency,” 29 U.S.C.

§§ 2611(4), 203(d)—a term expressly defined to encompass

the federal government, see 29 U.S.C. § 2611(4) 12—before

imposing civil liability on “any employer (including a public

agency),” 29 U.S.C. §§ 2617(a)(2), 216(b). While the USDA

contends that these statutes, with their built-in redundancies,

should set the standard for the FCRA’s waiver, that would

impose the exact sort of “magic words” requirement that the

Supreme Court has long rejected. See Cooper, 566 U.S. at 291.

Even more troubling, the USDA’s approach would require that

12

Both statutes incorporate by reference the definition

of “public agency” under 29 U.S.C § 203(x), which includes

“the Government of the United States; the government of a

State or political subdivision thereof; [and] any agency of the

United States . . . .”

21

Congress employ “magic words” that are superfluous and

duplicative of an express statutory definition. Certainly,

Congress is free to repeat itself for good measure, as it did in

the FMLA, ADEA, and RCRA, but we will not require it to do

so.

In sum, none of the more explicit waivers cited by the

USDA or invoked by the Fourth or Ninth Circuits call into

question the clarity with which Congress spoke in the 1996

Amendments.

D.

In departing from the FCRA’s plain text, the Fourth and

Ninth Circuits assumed that treating the government as a

“person” for purposes of the FCRA’s civil liability provisions

would require doing so in every other provision of the statute,

including those that subject “persons” to punitive damages, 15

U.S.C. § 1681n(a)(2), criminal liability, id. § 1681q, and civil

enforcement actions by the Federal Trade Commission, id.

§ 1681s(a), and the states, id. § 1681s(c). This, according to

these sister Circuits, would lead to a parade of implausible and

untenable results. See Robinson, 917 F.3d at 804–05; Daniel,

891 F.3d at 770–71.

Marshaling that parade, however, is a legal bogeyman.

Courts have never been required to choose between

mechanically applying a statutory definition everywhere in a

statute or applying it nowhere. To the contrary, the Supreme

Court has repeatedly held that where a statute contains an

“express definition,” that definition is “virtually conclusive”

and must be applied for all purposes “[s]ave for some

exceptional reason.” Sturgeon v. Frost, 139 S. Ct. 1066, 1086

(2019) (internal quotation marks omitted). These reasons

22

include circumstances where applying a definition to a specific

provision would be unconstitutional, see Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 73–74, 91 (2000) (declining to apply the

ADEA’s definition of “public agency” to unconstitutionally

abrogate state sovereign immunity), where it would be absurd,

see Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510

(1989) (declining to apply the plain text of Federal Rule of

Evidence 609(a) in a way that “would deny a civil plaintiff the

same right to impeach an adversary’s testimony that it grants

to a civil defendant”), or where it would be “incompatible”

with Congress’s regulatory scheme, see Util. Air Regul. Grp.

v. EPA, 573 U.S. 302, 319–20 (2014) (declining to apply a

broad definition of the term “air pollutant” in the Clean Air Act

where doing so would render the EPA’s regulatory scheme

unworkable).

When it comes to sovereign immunity, it is

understandable and entirely appropriate that the District Court

was wary of implausible results and cautious about exposing

the public fisc to liability. But even exceptional circumstances

justify departing from a statutory definition only to the extent

necessary to avoid untenable—not merely implausible—

results. For all other provisions of a statute, courts must

continue to apply statutory terms as defined. With this

standard in mind, we consider the two categories of

purportedly “untenable” applications of the term “person” that

led the Fourth and Ninth Circuits to reject the FCRA’s

statutory definition.

1.

One category of potentially problematic applications is

those that appear untenable on their face, but which can be

reconciled with the statute without rejecting its definition

23

wholesale by using well-established canons of statutory

construction.

Section 1681q, for instance, imposes criminal penalties,

including fines and imprisonment, on any “person” who

knowingly obtains credit information under false pretenses. It

would be absurd, however, to subject the federal government

to criminal prosecution, not to mention the impossibility of

imprisoning a government entity. 13 See United States v.

Cooper Corp., 312 U.S. 600, 606–07 (1941) (holding that a

provision of the Sherman Act imposing criminal penalties on

“person[s]” could not “embrace the United States”); United

States v. Singleton, 165 F.3d 1297, 1300 (10th Cir. 1999)

(imposing criminal penalties on the United States government

is “patently absurd”); Berger v. Pierce, 933 F.2d 393, 397 (6th

Cir. 1991) (“[I]t is self-evident that a federal agency is not

subject to state or federal criminal prosecution.”). The canon

against absurdity thus leans against applying the FCRA’s

definition of “person” to this provision.

Similarly, a court could not interpret the term “person”

as used in §§ 1681n and 1681o as authorizing suits against state

13

The Seventh Circuit in Bormes viewed the FCRA’s

criminal liability provisions as unproblematic because it

interpreted them as authorizing criminal prosecutions only

against federal employees. See Bormes, 759 F.3d at 796. But

as the Ninth Circuit correctly observed, a faithful application

of the FCRA’s definition “would read ‘the United States’ into

the FCRA’s enforcement provisions, not ‘federal employees.’”

Daniel, 891 F.3d at 770. For the reasons we explain, however,

whether the FCRA’s definition of “person” may be applied to

§ 1681q is immaterial to whether it may be applied to §§ 1681n

and 1681o.

24

governments without running afoul of the Eleventh

Amendment and principles of state sovereign immunity, which

prohibit Congress from abrogating state sovereign immunity

under its Commerce Clause authority. See Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 72–73 (1996). And from that, the

Fourth Circuit reasoned that Congress could not have intended

for those provisions to waive the federal government’s

immunity either. See Robinson, 917 F.3d at 805. We see it

differently. There is no constitutional bar to Congress waiving

the federal government’s sovereign immunity in the FCRA, so

regardless of how Seminole Tribe affects state sovereign

immunity under the statute, it does not allow us to impute a

statutory bar in derogation of the statutory text.

To the contrary, doing so would disregard the central

tenet of Seminole Tribe and conflate Congress’s intent with its

power. In Seminole Tribe, the Supreme Court clearly

distinguished between two distinct inquiries—(1) whether

Congress has unequivocally expressed its intent to waive

immunity, and (2) whether Congress has acted pursuant to a

valid grant of authority, see 517 U.S. at 55—and addressed

each independently. It concluded that while Congress clearly

intended to abrogate state immunity, it lacked the power to do

so. See id. at 56–57, 72–73. Here, however, the plain text of

§§ 1681n and 1681o clearly expresses Congress’s intent to

authorize suits against both the federal and state governments,

and under Seminole Tribe we cannot infer from Congress’s

lack of authority under the Commerce Clause an intent to

preserve state immunity, let alone federal immunity. See id. at

55–57, 72.

Indeed, that inference has been resoundingly rejected by

the Supreme Court. In Kimel, the Court applied Seminole’s

twin inquiries to the ADEA, which subjects “public agencies”

25

to civil damages. See 528 U.S. at 78, 29 U.S.C. §§ 203(d),

203(x), 216(b). On the second prong, the Court concluded, as

in Seminole Tribe, that Congress lacked authority to abrogate

state sovereign immunity. See 528 U.S. at 91. But that

conclusion did not negate the Court’s holding as to the first

prong that Congress had clearly expressed its intent to do so by

authorizing suits against “public agencies,” a term defined to

include state agencies. See id. at 73-74. The same holds true

for the FCRA; whether Congress intended to abrogate state

sovereign immunity does not turn on whether it had authority

to do so. And where there is no constitutional bar to waiving

federal sovereign immunity, there is even less reason to

question the FCRA’s plain text.

2.

The other category of applications that concerned the

Fourth and Ninth Circuits are those that would produce results

that may be implausible, but which, ultimately, are not

untenable.

For example, there is a “presumption against [the]

imposition of punitive damages on governmental entities,” Vt.

Agency, 529 U.S. at 785, but that presumption, like sovereign

immunity, may be overcome by a clear expression of

Congress’s intent, see City of Newport v. Fact Concerts, Inc.,

453 U.S. 247, 263–64 (1981). Section 1681n(a)(2) meets that

standard.

Similarly, while Congress has only rarely expressed its

intent to subject the United States and its agencies to

enforcement actions brought by administrative agencies and

states, neither is unprecedented. RCRA, for instance,

authorizes the Environmental Protection Agency to bring

26

enforcement actions against other federal agencies, see 42

U.S.C. §§ 6928(a)(1) (authorizing civil actions by the EPA

Administrator), 6972(a)(1) (authorizing civil actions against

any “person,” including the United States and its agencies), and

both RCRA and the CWA permit states, as “persons,” to bring

actions against the federal government as well, see id.

§§ 6972(a)(1) (authorizing suits against the United States by

“any person”), 6903(15) (defining “person” to include States);

33 U.S.C. §§ 1365(a)(1) (authorizing suits against the United

States by “any citizen”), 1365(g) (defining “citizen” as “a

person”), 1362(5) (defining “person” to include States). The

Fourth and Ninth Circuits did not identify any principle,

constitutional or otherwise, that would preclude Congress from

adopting a similar enforcement mechanism for the FCRA.

They held only that it would be “implausible” or “anomalous”

for Congress to do so without being more explicit. See

Robinson, 917 F.3d at 805; Daniel, 891 F.3d at 770–71. We

are aware of no principle of law, however, that requires

Congress to express its intent to authorize administrative or

state enforcement in a particular way beyond a clear

statement. 14

14

The closest the USDA comes to identifying such a

principle is its reference to the Supreme Court’s decision in

Library of Congress v. Shaw, 478 U.S. 310 (1986). In that

case, the Court applied the longstanding principle, dating from

common law, that even where Congress has waived the United

States’ immunity, “interest cannot be recovered unless the

award of interest was affirmatively and separately

contemplated by Congress.” Id. at 315. That principle,

however, is not implicated in this case.

27

In sum, there are two provisions for which applying the

FCRA’s definition of “person” would lead to untenable results

and a handful for which the results would be merely unusual,

but none ultimately precludes our application of that definition

to the civil liability provisions at issue here. 15

15

The USDA argues that if a statutory term cannot be

applied as defined to every part of a statute, that term is

ambiguous. See also Robinson, 917 F.3d at 805 (“The pro-

waiver camp cannot have it both ways—literal most often, just

not when it suits to blur the lines.”). This argument, however,

confuses ambiguity with applicability. The term “person” as

defined in the FCRA remains unambiguous, even if

exceptional reasons counsel against applying it in a particular

instance. Moreover, the USDA’s all-or-nothing approach is

inconsistent with cases in which the Supreme Court has

declined to apply a statutory definition without calling into

question its unambiguous meaning. See, e.g., Util. Air, 573

U.S. at 319–20 (recognizing that the term “air pollutant” in the

Clean Air Act was defined broadly enough to include

greenhouse gases but declining to apply it where doing so

would lead to unworkable results); Nw. Austin Mun. Util. Dist.

No. 1 v. Holder, 557 U.S. 193, 206–11 (2009) (recognizing that

the term “political subdivision” in the Voting Rights Act

unambiguously excluded certain districts that did not conduct

their own voter registration but declining to apply that

definition where doing so would frustrate the Act’s purpose);

United States v. Pub. Utils. Comm’n, 345 U.S. 295, 312–16

(1953) (recognizing that the term “person” under the Federal

Power Act unambiguously excluded municipalities but

declining to apply that definition in a way that would frustrate

28

3.

The upshot of that discussion is that we see no

exceptional reason that absolves us of our duty to apply the

FCRA’s definition to §§ 1681n and 1681o. There is no

constitutional impediment to Congress waiving the United

States’ sovereign immunity, and it is certainly not absurd for

Congress to do so. Nor would waiving the federal

government’s immunity be “incompatible” with the FCRA’s

enforcement scheme or “destroy” the statute’s major purposes.

Digit. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 778 (2018)

(first quoting Util. Air, 573 U.S. at 322 and then quoting

Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201

(1949)). To the contrary, one of the FCRA’s express findings

is that the banking system depends on “fair and accurate credit

reporting,” 15 U.S.C. § 1681(a)(1), and authorizing

enforcement against the federal government—the nation’s

largest employer and creditor—is a reasonable means of

furthering that goal. 16

The closest the Fourth and Ninth Circuits come to

identifying a reason not to apply the FCRA’s express definition

of “person” to the civil liability provisions is their observation

that waiving immunity for FCRA claims would expose the

federal fisc to potential liability. See Robinson, 917 F.3d at

the Act’s purposes by depriving municipalities of the right to

complain and petition).

16

We need not resolve here whether Congress in fact

chose to waive sovereign immunity specifically to further any

particular end; it suffices that waiver is not incompatible with

the FCRA’s purposes. Cf. Digit. Realty, 138 S. Ct. at 778.

29

804; Daniel, 891 F.3d at 775–76. But this is true whenever

Congress decides to waive immunity for damages claims and

is certainly not an exceptional reason to depart from

Congress’s clear intent. Whether to subject the federal fisc to

liability is a policy choice reserved to Congress and one that

we are bound to honor, not second-guess. See Doe, 37 F.4th at

88 (emphasizing that the clear-statement rule for finding a

waiver of sovereign immunity “ensures that elected officials,

not judges, choose when to open the public purse”).

E.

The USDA also directs our attention to the Seventh

Circuit’s decision in Meyers v. Oneida Tribe of Indians of Wis.,

836 F.3d 818, 826 (7th Cir. 2016), which held that the FCRA

did not unambiguously abrogate tribal sovereign immunity, 17

and suggests that the court has backed away from its position

in Bormes. The Fourth and Ninth Circuits likewise viewed

Meyers as a retreat. See Robinson, 917 F.3d at 806–07; Daniel,

891 F.3d at 774.

We disagree. As the Seventh Circuit correctly

explained in Meyers, there are important differences between

waiver of the federal government’s own immunity and

abrogation of Indian tribes’ inherent sovereignty that warrant

different analyses. See Meyers, 836 F.3d at 826–27. Indian

tribes are “‘domestic dependent nations’ that exercise inherent

17

Technically, the Seventh Circuit was analyzing

whether the Fair and Accurate Credit Transaction Act (“the

FACTA”) waived tribal immunity. See Meyers, 836 F.3d at

819–20. The FACTA amended the FCRA in 2003 and

employs the same statutorily-defined term “person” in its civil

liability provision. See 15 U.S.C. § 1681a(b), c(g)(1).

30

sovereign authority[.]” Okla. Tax Comm’n v. Citizen Band

Potawatomi Tribe of Okla., 498 U.S. 505, 509 (quoting

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831)).

Congress, however, may abrogate that sovereignty at any time

pursuant to its plenary authority over tribes. See, e.g.,

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014).

But Indian tribes are not vassal states, nor is the United

States an empire. Rather, Congress is presumed to legislate for

the benefit of Indian tribes, with all statutory language

“‘construed liberally in favor of the Indians’” and any

“‘ambiguous provisions interpreted to their benefit.’” Ysleta

Del Sur Pueblo v. Texas, 142 S.Ct. 1929, 1941 n.3 (2022)

(quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766

(1985)); see also McClanahan v. State Tax Comm'n of Ariz.,

411 U.S. 164, 174–75 (1973); Choate v. Trapp, 224 U.S. 665,

675 (1912). This canon of interpretation is robust and

displaces rules that would otherwise govern outside the Indian

law context. See, e.g., Cobell v. Salazar, 573 F.3d 808, 812

(D.C. Cir. 2009) (explaining that the Indian canons “trump[]”

and “mute[]” the application of Chevron deference) (internal

quotation marks omitted). For this reason, too, Congress must

speak with particular clarity when it chooses to abrogate tribal

sovereign immunity. See, e.g., Bay Mills, 572 U.S. at 788–90.

Application of these unique canons of construction would thus

require us to not only identify a clear statement from Congress,

but also to pause and consider whether Congress believed that

waiving tribal immunity under the FCRA would have inured

to tribes’ benefit, an inquiry that may perhaps require

specificity beyond that required to waive the United States’

immunity. See Justin W. Aimonetti, “Magic Words” and

Original Understanding: An Amplified Clear Statement Rule

31

to Abrogate Tribal Sovereign Immunity, 2020 Pepp. L. Rev. 1,

29–34 (2020).

Even applying the ordinary rules of statutory

construction, however, it is not clear that Congress intended to

abrogate tribal immunity. It is indisputable that the United

States is a “government” within the FCRA’s definition, as

evidenced by those provisions that explicitly treat “person” as

including the federal government. See 15 U.S.C.

§§ 1681a(y)(1)(D)(ii), 1681b(b). In contrast, there is not a

single mention of either “Indians” or “tribes” anywhere in the

FCRA’s text, let alone any provision that specifically treats

tribes as “persons.”

This is significant; as the Seventh Circuit correctly

noted, “there is not one example in all of history where the

Supreme Court has found that Congress intended to abrogate

tribal sovereign immunity without expressly mentioning Indian

tribes somewhere in the statute.” Meyers, 836 F.3d at 824

(quoting In re Greektown Holdings, LLC, 532 B.R. 680, 693

(E.D. Mich. 2015)) (emphasis in original). Thus, even if Indian

tribes are “governments,” 18 we have no textual basis from

18

Though we need not decide the issue, we note that the

unique status of Indian tribes may not map neatly onto the term

“government” as used in the FCRA. While “the Supreme

Court has referred to Indian tribes as ‘sovereigns,’ ‘nations,’

and even ‘distinct, independent political communities,

retaining their original natural rights,’” it has never equated

them with the federal and state “governments.” In re Whitaker,

474 B.R. 687, 695 (8th Cir. 2012). As such, the term

“government” itself may be ambiguous with respect to Indian

tribes, in which case that ambiguity must be resolved in favor

of tribal immunity.

32

which to conclude that Congress ever contemplated them as

such for purposes of the FCRA. This ambiguity, which is not

present with respect the United States, requires that we

construe the FCRA in favor of tribal immunity. Cf. Meyers,

836 F.3d at 826 (“[I]t is one thing to read ‘the United States’

when Congress says ‘government.’ But it [is] quite another . . .

to read ‘Indian tribes’ when Congress says ‘government.’”

(internal quotation marks omitted) (emphasis in original)).

In short, the Seventh Circuit’s decisions in Bormes and

Meyers are in perfect harmony given the unique status of

Indian tribes, the special rules of construction that apply in the

Indian law context, and the complete lack of any reference to

Indian tribes in the FCRA.

F.

Finally, the USDA contends that construing “person” to

include the federal government would expand the United

States’ liability beyond that provided for by the Privacy Act of

1974, codified at 5 U.S.C. § 552a, which also regulates

information about individuals contained within systems of

records maintained by federal agencies including, in some

cases, consumer credit information. 19 Where a federal agency

fails to correct inaccurate information on an individual, the

Privacy Act allows for injunctive relief, but not money

19

Similar arguments based on the Privacy Act were

raised in Bormes, Daniel, and Robinson. Although none of

these courts discussed those arguments in their opinions, we

address the issue here for the sake of completeness and for the

benefit of courts that may be presented with this same

argument in the future.

33

damages unless the failure is “intentional or willful.” 5 U.S.C.

§ 552a(g)(1), (4). The USDA’s argument, in short, is that

construing the 1996 FCRA amendments to allow for money

damages without proof of intentional or willful conduct would

upset the careful balance struck by the Privacy Act.

We find this argument unpersuasive for two reasons.

First, the Privacy Act’s remedial scheme in no way limited

Congress’s ability, more than two decades later, to revisit an

area of perceived need. To the contrary, it would have been

quite reasonable for Congress, in enacting the 1996 FCRA

amendments, to find that the Privacy Act’s remedial scheme,

with its strict limit on money damages, was insufficient to

ensure the accuracy of consumer credit information. In any

event, the mere fact that the 1996 FCRA amendments struck a

balance that may be inconsistent with the Privacy Act is no

reason to set aside clear statutory text.

Second, USDA has not identified any actual

inconsistency between the Privacy Act and the 1996

amendments. No doubt, there is some overlap between the

information covered by the two statutes, as the Privacy Act

addresses any information on an individual that is maintained

in a system of records maintained by a federal agency, see 5

U.S.C. § 552a(a)(4), which may include some consumer credit

information, as is the case with the system of records

maintained by the USDA Rural Housing Service, see 81 Fed.

Reg. 25369 (Apr. 28, 2016); 63 Fed. Reg. 38546 (Aug. 17,

1998). And the FCRA and the Privacy Act also both provide

a way to request correction of inaccurate information and

require that notice of any correction be sent to any “person” to

whom the inaccurate information was given. See 15 U.S.C.

§ 1681s-2(b)(1) (requiring a federal agency, as a “person,” to

respond to notification from a consumer reporting agency of a

34

dispute, to conduct a reasonable investigation, to correct any

inaccurate information, and then to report the correction to

both the consumer reporting agency that notified the agency of

the dispute, but also any other consumer reporting agencies to

which the inaccurate information was also provided); See 5

U.S.C. § 552a(c)(4) (requiring federal agencies to “inform any

person or other agency” to which disputed information was

previously disclosed “about any correction” made). 20

But there the overlap ends. For one thing, the

government’s duties to correct inaccurate information under

both statutes are triggered by different events. Under § 1681s-

2 of the FCRA, these duties are triggered only upon receiving

notice from a consumer reporting agency of disputed

information; notice from an individual is insufficient. In

contrast, the government’s duty to amend a record under the

Privacy Act, may only be triggered by a request from an

individual. See 5 U.S.C. § 552a(d). For another, the two

statutes impose liability on federal agencies in different ways.

Under the FCRA, a federal agency is liable for any failure to

comply with the Act’s substantive requirements, see §§ 1681n,

1681o, whereas under the Privacy Act, an individual may only

seek civil damages for failure to correct inaccurate information

20

The USDA reads the term “agency” in 5 U.S.C. § 552a(c)(4)

to include credit reporting agencies, but this is inaccurate, as

the Privacy Act explicitly defines “agency” to include only

government agencies and government corporations. See 5

U.S.C. §§ 552a(a)(1), 552(f)(1), 551(1). Credit reporting

agencies are covered as “persons” under this provision, as

§ 551(2) defines “person” to include any “individual,

partnership, corporation, association, or public or private

organization other than an agency.”.

35

if that failure leads to a determination adverse to the individual,

5 U.S.C. §§ 522a(g)(1)(C)–(D), 522a(g)(4). These important

differences reinforce our view that the Privacy Act provides no

obstacle to reading “person” in the FCRA to include the federal

government.

III.

For the foregoing reasons, we will reverse the judgment

of the District Court and remand for further proceedings not

inconsistent with this opinion.

36