Petition for Writ of Certiorari — Department of Agriculture Rural Development Rural Housing Service, Petitioner v. Reginald Kirtz

Supreme Court briefMar 3, 2023

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Text

No.

In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF AGRICULTURE

RURAL DEVELOPMENT RURAL HOUSING SERVICE,

PETITIONER

REGINALD KIRTZ

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

MARK B. STERN

SARAH CARROLL

DAVID L. PETERS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the civil-liability provisions of the Fair

Credit Reporting Act, 15 U.S.C. 1681 et seq., unequivocally and unambiguously waive the sovereign immunity

of the United States.

(I)

PARTIES TO THE PROCEEDING

Petitioner (defendant-appellee below) is the United

States Department of Agriculture Rural Development

Rural Housing Service.

Other defendants in the district court were Trans

Union LLC and Pennsylvania Higher Education Assistance Agency, doing business as American Education

Services.

Respondent (plaintiff-appellant below) is Reginald

Kirtz.

RELATED PROCEEDINGS

United States District Court (E.D. Pa.):

Kirtz v. Trans Union LLC, No. 20-cv-5231 (June 9,

2021)

United States Court of Appeals (3d Cir.):

Kirtz v. Trans Union LLC, No. 21-2149 (Aug. 24,

2022)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provisions involved ...................................................... 2

Statement:

A. Statutory background ....................................................... 2

B. Proceedings below ............................................................. 5

Reasons for granting the petition ............................................... 9

A. The court of appeals erred in holding that FCRA

waives sovereign immunity for private damages

suits ................................................................................... 10

1. Waivers of sovereign immunity must be

unequivocal and unambiguous ................................. 10

2. FCRA’s text does not contain an unequivocal

and unambiguous waiver of sovereign immunity.... 12

3. The statutory structure and history confirm

that FCRA does not waive sovereign immunity.... 22

B. This Court’s review is warranted .................................. 28

Conclusion ................................................................................... 31

Appendix A — Court of appeals opinion (Aug. 24, 2022)...... 1a

Appendix B — District court memorandum

(May 4, 2021) .............................................. 35a

Appendix C — Court of appeals order denying

rehearing (Nov. 3, 2022) ........................... 49a

Appendix D — Statutory provisions..................................... 51a

TABLE OF AUTHORITIES

Cases:

Alden v. Maine, 527 U.S. 706 (1999)........................ 11, 12, 31

Bormes v. United States, 759 F.3d 793

(7th Cir. 2014).................................................................. 7, 28

Daniel v. National Park Service,

891 F.3d 762 (9th Cir. 2018) .................... 7, 13, 18-20, 23, 28

Dellmuth v. Muth, 491 U.S. 223 (1989) ............................... 27

(III)

Cases—Continued:

Page

Doe v. Chao, 540 U.S. 614 (2004) .................................... 25, 26

Employees of the Department of Public Health

& Welfare v. Department of Public Health &

Welfare, 411 U.S. 279 (1973) .......................15, 16, 17, 21, 26

FAA v. Cooper, 566 U.S. 284 (2012) ........................ 12, 21, 24

Fitzpatrick v. IRS, 665 F.2d 327 (11th Cir. 1982) .............. 26

Franchise Tax Board v. Hyatt, 139 S. Ct. 1485 (2019) ...... 19

Federal Republic of Germany v. Philipp,

141 S. Ct. 703 (2021) ........................................................... 12

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017)....................................................... 23

Kimel v. Florida Board of Regents,

528 U.S. 62 (2000) ............................................................... 16

Lane v. Peña, 518 U.S. 187 (1996) ..................6, 11, 15, 24, 27

Library of Congress v. Shaw, 478 U.S. 310 (1986) ............. 17

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............................................. 19

Meyers v. Oneida Tribe of Indians,

836 F.3d 818 (7th Cir. 2016),

cert. denied, 137 S. Ct. 1331 (2017) ................................... 29

Michigan v. Bay Mills Indian Community,

572 U.S. 782 (2014).................................................. 11, 12, 20

Mowrer v. United States

Department of Transportation,

14 F.4th 723 (D.C. Cir. 2021) ......................................... 8, 28

Office of Personnel Management v. Richmond,

496 U.S. 414 (1990).............................................................. 12

Quern v. Jordan, 440 U.S. 332 (1979) .................................. 28

Return Mail, Inc. v. United States Postal Service,

139 S. Ct. 1853 (2019) ......................................................... 14

Cases—Continued:

Page

Robinson v. United States Department of

Education:

917 F.3d 799 (4th Cir. 2019), cert. denied,

140 S. Ct. 1440 (2020) ...........................7, 18, 20, 22, 28

140 S. Ct. 1440 (2020) ..................................... 10, 20, 28-31

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ................... 22

Sossamon v. Texas, 563 U.S. 277 (2011) ................. 11, 22, 24

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ......................... 2, 3

United States v. Chemical Foundation, Inc.,

272 U.S. 1 (1926) ................................................................. 17

United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834)........... 10

United States v. Cooper Corp., 312 U.S. 600 (1941) ..... 13, 17

United States v. Idaho ex rel. Director, Idaho

Department of Water Resources,

508 U.S. 1 (1993) ........................................................... 17, 21

United States v. Nordic Village, Inc.,

503 U.S. 30 (1992) ................................................................. 7

United States v. Williams, 514 U.S. 527 (1995) ................... 6

United States Department of Energy v. Ohio,

503 U.S. 607 (1992)........................................................ 11, 14

Utility Air Regulatory Group v. EPA,

573 U.S. 302, 320 (2014) ...................................................... 22

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983).............................................................. 12

Vermont Agency of Natural Resources v. United

States ex rel. Stevens, 529 U.S. 765 (2000) ....................... 20

Statutes and rule:

Act of Jan. 12, 1983,

Pub. L. No. 97-452, § 1, 96 Stat. 2467 ............................... 30

§ 1, 96 Stat. 2470 .............................................................. 30

Civil Rights Act of 1871, ch. 22, 17 Stat. 13 ......................... 28

Statutes and rule—Continued:

Page

Consumer Credit Reporting Reform Act of 1996,

Pub. L. No. 104-208, Div. A, Tit. II, Subtit. D,

Ch. 1, 110 Stat. 3009-426 ...................................................... 4

§ 2403, 110 Stat. 3009-430 to 3009-431

(15 U.S.C. 1681b(b)(2) and (3)) ................................. 14

§ 2411, 110 Stat. 3009-443 to 3009-446

(15 U.S.C. 1681m(a)).................................................. 14

§ 2412, 110 Stat. 3009-446 to 3009-447

(15 U.S.C. 1681o) ....................................................... 15

§ 2412(a), 110 Stat. 3009-446 ............................................ 4

§ 2412(b), 110 Stat. 3009-446 ............................................ 5

§ 2412(c), 110 Stat. 3009-446............................................. 5

§ 2412(d), 110 Stat. 3009-446 ............................................ 4

§ 2412(e), 110 Stat. 3009-446 ............................................ 5

§ 2413, 110 Stat. 3009-448 to 3009-449............................. 6

§ 2413(a), 110 Stat. 3009-448 ............................................ 4

§ 2415, 110 Stat. 3009-450 (15 U.S.C. 1681q) ...... 5, 14, 19

§ 2416, 110 Stat. 3009-450 ..................................... 5, 14, 19

§ 2417, 110 Stat. 3009-451 to 3009-452................. 5, 14, 19

Debt Collection Improvement Act of 1996,

Pub. L. No. 104-134, § 31001(k),

110 Stat. 1321-365 ............................................................... 30

Dodd-Frank Wall Street Reform and Consumer

Protection Act, Pub. L. No. 111-203, Tit. X, Subtit.

H, § 1088(a)(10), 124 Stat. 2088-2090

(15 U.S.C. 1681s(b)(1)(H)).................................................... 5

Equal Credit Opportunity Act,

15 U.S.C 1691 et seq. ........................................................... 24

15 U.S.C. 1691e(b) ........................................................... 24

VII

Statutes and rule—Continued:

Page

Fair Credit Reporting Act, Pub. L. No. 91-508,

Tit. VI, 84 Stat. 1127 (15 U.S.C. 1681 et seq.)..................... 2

sec. 601:

§ 602, 84 Stat. 1128 ...................................................... 2

§ 602(a)(4), 84 Stat. 1128 ............................................. 3

§ 602(b), 84 Stat. 1128.................................................. 3

§ 603(a), 84 Stat. 1128 ................................................ 13

§ 603(b), 84 Stat. 1128............................................ 3, 13

§ 603(f ), 84 Stat. 1129 ............................................ 2, 13

§§ 604-605, 84 Stat. 1129-1130 .............................. 2, 13

§ 604(3), 84 Stat. 1129 .................................................. 4

§ 606, 84 Stat. 1130 .................................................. 3, 4

§ 606(a), 84 Stat. 1130 .................................................. 3

§ 606(b), 84 Stat. 1130.................................................. 3

§ 607, 84 Stat. 1130-1131 ............................................. 4

§§ 607-614, 84 Stat. 1130-1133 .............................. 2, 13

§§ 610-612, 84 Stat. 1131-1133 .................................... 4

§ 613(1), 84 Stat. 1133 .................................................. 4

§ 615, 84 Stat. 1133 .................................................. 3, 4

§§ 616-617, 84 Stat. 1134 ....................................... 3, 13

§ 619, 84 Stat. 1134 .......................................... 3, 13, 14

§ 620, 84 Stat. 1134 .................................................. 3, 4

15 U.S.C. 1681(b) ....................................................... 2, 66a

15 U.S.C. 1681a(a) ................................................... 13, 67a

15 U.S.C. 1681a(b) ......................................... 6, 13, 18, 67a

15 U.S.C. 1681b................................................................ 18

15 U.S.C. 1681c-1(i)(4) .................................................... 18

15 U.S.C. 1681n............................... 4-6, 12, 20, 23, 26, 68a

15 U.S.C. 1681n(a)(1)(A) ......................................... 26, 68a

15 U.S.C. 1681o ............................... 4-6, 12, 15, 23, 26, 69a

15 U.S.C. 1681q.........................................5, 13, 14, 19, 70a

VIII

Statutes and rule—Continued:

Page

15 U.S.C. 1681s .............................................. 5, 14, 19, 71a

15 U.S.C. 1681s(a) ................................................... 19, 71a

15 U.S.C. 1681s(c) .................................................... 19, 73a

15 U.S.C. 1681s-2(b) .......................................... 25, 26, 76a

15 U.S.C. 1681s-2(b)(1) ......................................... 4, 6, 76a

15 U.S.C. 1681u ................................................................ 23

15 U.S.C. 1681u(j) ................................................ 7, 23, 79a

Fair Labor Standards Act of 1938,

29 U.S.C. 201 et seq. ..................................................... 15

29 U.S.C. 203 (1970) .................................................. 21

Federal Tort Claims Act, 28 U.S.C. 2674 .............................. 8

Intelligence Authorization Act for Fiscal Year 1996,

Pub. L. No. 104-93, Tit. VI, sec. 601(a),

§ 624(i), 109 Stat. 976 (15 U.S.C. 1681u( j))....................... 23

Little Tucker Act, 28 U.S.C. 1346(a) ................................ 8

Privacy Act of 1974, Pub. L. No. 93-579,

88 Stat. 1896 (5 U.S.C. 552a).............................................. 24

5 U.S.C. 552a(a)(1)-(5) ..................................................... 24

5 U.S.C. 552a(b) ............................................................... 24

5 U.S.C. 552a(c)(4) ........................................................... 25

5 U.S.C. 552a(d) ............................................................... 25

5 U.S.C. 552a(g) ............................................................... 25

5 U.S.C. 552a(g)(1)(A) ..................................................... 25

5 U.S.C. 552a(g)(2)(A) ..................................................... 25

5 U.S.C. 552a(g)(4)(A) ..................................................... 25

Truth in Lending Act, 15 U.S.C. 1601 et seq. ................ 24

15 U.S.C. 1612(b) ............................................................. 24

11 U.S.C. 106(a)(3) ................................................................. 20

20 U.S.C. 1080a ............................................................... 25

20 U.S.C. 1087a(b)(2) ...................................................... 25

20 U.S.C. 1087e(a)(1) ............................................................. 25

Statutes and rule—Continued:

Page

28 U.S.C. 1602 et seq.............................................................. 12

28 U.S.C. 1605-1607 ............................................................... 20

28 U.S.C. 1606 ........................................................................ 20

29 U.S.C. 203 (1970)............................................................... 21

31 U.S.C. 3711(e) ...................................................... 25, 30

31 U.S.C. 3711(g) ............................................................ 30

Fed. R. Civ. P. 54(b)................................................................. 8

Miscellaneous:

120 Cong. Rec. (1974):

p. 36,613 ............................................................................ 26

pp. 36,650-36,660 .............................................................. 26

p. 36,956 ............................................................................ 26

140 Cong. Rec. 8941 (1994) ................................................... 27

Department of the Treasury, Fiscal Year 2021

Report to Congress: U.S. Government Non-Tax

Receivables and Debt Collection Activities of

Federal Agencies (Nov. 2021), www.fiscal.

treasury.gov/files/dms/debt21.pdf. ................................... 30

H.R. Rep. No. 486, 103d Cong., 2d Sess. (1994) ................. 27

Joseph W. Mead, Interagency Litigation and Article

III, 47 Ga. L. Rev. 1217 (2013) .......................................... 19

S. Rep. No. 185, 104th Cong., 1st Sess. (1995) .................... 27

The Federalist No. 81 (Alexander Hamilton)

(Jacob E. Cooke ed. 1961) .................................................. 10

In the Supreme Court of the United States

No.

UNITED STATES DEPARTMENT OF AGRICULTURE

RURAL DEVELOPMENT RURAL HOUSING SERVICE,

PETITIONER

REGINALD KIRTZ

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States

Department of Agriculture Rural Development Rural

Housing Service (USDA), respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Third Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a34a) is reported at 46 F.4th 159. The opinion of the district court (App., infra, 35a-48a) is not published in the

Federal Supplement but is available at 2021 WL

1750141.

JURISDICTION

The judgment of the court of appeals was entered on

August 24, 2022. A petition for rehearing was denied on

(1)

November 3, 2022 (App., infra, 49a-50a). On January

17, 2023, Justice Alito extended the time within which

to file a petition for a writ of certiorari to and including

March 3, 2023. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix to this brief. App., infra, 51a-79a.

STATEMENT

Respondent filed suit in the United States District

Court for the Eastern District of Pennsylvania, alleging

that USDA and the other defendants violated provisions of the Fair Credit Reporting Act, 15 U.S.C. 1681

et seq. The district court granted the government’s motion to dismiss on sovereign-immunity grounds. App.,

infra, 35a-48a. The court of appeals reversed. Id. at 1a34a.

A. Statutory Background

1. In 1970, Congress enacted the Fair Credit Reporting Act (FCRA or 1970 Act), Pub. L. No. 91-508,

Tit. VI, 84 Stat. 1127 (15 U.S.C. 1681 et seq.), to “promote efficiency in the Nation’s banking system and to

protect consumer privacy,” TRW Inc. v. Andrews, 534

U.S. 19, 23 (2001); see 15 U.S.C. 1681(b).

As originally enacted in 1970, FCRA principally imposed duties only on “consumer reporting agencies.”

E.g., 1970 Act, sec. 601, § 602, 84 Stat. 1128. Those are

entities engaged in “assembling or evaluating consumer

credit information or other information on consumers

for the purpose of furnishing consumer reports to third

parties.” § 603(f ), 84 Stat. 1129; see §§ 604-605, 607-614,

84 Stat. 1129-1133. Congress’s express goal in imposing

those duties was “to require that consumer reporting

agencies adopt reasonable procedures for meeting the

needs of commerce for consumer credit * * * in a manner which is fair and equitable to the consumer” and is

conducted with a “respect for the consumer’s right to

privacy.” § 602(a)(4) and (b), 84 Stat. 1128; see TRW,

534 U.S. at 23. The 1970 Act also required “users of

consumer reports,” such as potential employers or creditors, to inform consumers of the reasons for any adverse actions taken on the basis of information in the

relevant consumer report. § 615, 84 Stat. 1133. In its

remedial provisions, the 1970 Act imposed civil liability

on “[a]ny consumer reporting agency or user of information” that violated FCRA’s provisions. §§ 616-617,

84 Stat. 1134. The statute authorized recovery of actual

damages, costs, reasonable attorney’s fees, and, in the

case of willful violations, punitive damages. Ibid. It also

imposed criminal liability on officers and employees of

consumer reporting agencies who disclosed consumer

information without authorization. § 620, 84 Stat. 1134.

The 1970 Act contained one provision imposing duties and another imposing liability on a “person,” a term

the statute defined to include “any individual, partnership, corporation, trust, estate, cooperative, association,

government or governmental subdivision or agency, or

other entity.” Sec. 601, § 603(b), 84 Stat. 1128 (emphasis

added). Section 606 imposed certain conditions on when

a “person” could “procure or cause to be prepared an

investigative consumer report on any consumer.”

§ 606(a), 84 Stat. 1130; see § 606(b), 84 Stat. 1130. And

Section 619 imposed criminal liability on “[a]ny person”

obtaining consumer information “under false pretenses.” 84 Stat. 1134. The 1970 Act did not otherwise

contain any substantive requirements or remedial provisions applying directly to a “person” as such, in con-

trast to the various provisions applicable to “consumer

reporting agencies” and “users of information.” Instead, with the exception of Section 606, the 1970 Act

used “person” or “persons” only in provisions imposing

duties on consumer reporting agencies with respect to

a person. E.g., § 604(3), 84 Stat. 1129 (identifying circumstances in which a consumer reporting agency may

furnish a consumer report to a “person”); § 613(1), 84

Stat. 1133 (requiring consumer reporting agencies to

make disclosures to consumers about “the name and address of the person to whom [certain] information is being reported”); see, e.g., §§ 607, 610-612, 615, 620, 84

Stat. 1130-1134.

2. In 1996, Congress amended FCRA by expanding

its regulatory focus beyond consumer reporting agencies to include persons who furnish information to those

agencies. See Consumer Credit Reporting Reform Act

of 1996 (1996 Act), Pub. L. No. 104-208, Div. A, Tit. II,

Subtit. D, Ch. 1, 110 Stat. 3009-426. As relevant here, a

newly enacted provision obligated a “person” to conduct

an investigation and take specific steps “[a]fter receiving notice * * * of a dispute with regard to the completeness or accuracy of any information provided by

[the] person to a consumer reporting agency.” 1996 Act

§ 2413(a), 110 Stat. 3009-448; see 15 U.S.C. 1681s2(b)(1).

The 1996 Act also amended FCRA’s remedial provisions to apply to “[a]ny person,” not just to “[a]ny consumer reporting agency or user of information.”

§ 2412(a) and (d), 110 Stat. 3009-446; see 15 U.S.C.

1681n and 1681o. It added a provision for statutory

damages in addition to actual and punitive damages, expanded the availability of attorney’s fees, and enhanced

the criminal penalties applicable to “person[s].” 1996

Act §§ 2412(b), (c), and (e), 2415, 110 Stat. 3009-446 to

3009-447, 3009-450; see 15 U.S.C. 1681n, 1681o, 1681q.

The 1996 Act also authorized both the Federal Trade

Commission (FTC) and state governments to bring actions against “person[s]” who violate FCRA, including

to obtain civil penalties in the case of FTC enforcement

actions, and damages and injunctive relief in the case of

state enforcement actions. 1996 Act §§ 2416, 2417, 110

Stat. 3009-450 to 3009-452; see 15 U.S.C. 1681s. (The

Bureau of Consumer Financial Protection now shares

enforcement authority with the FTC. See Dodd-Frank

Wall Street Reform and Consumer Protection Act, Pub.

L. No. 111-203, Tit. X, Subtit. H, § 1088(a)(10), 124 Stat.

2088-2090 (15 U.S.C. 1681s(b)(1)(H)).) The 1996 Act did

not, however, modify or amend the definition of “person” in the 1970 Act.

B. Proceedings Below

1. The United States Department of Agriculture operates the Rural Housing Service, which offers loans

and other financial services to promote housing in rural

areas. App., infra, 4a. Respondent alleges that a credit

report prepared by a consumer reporting agency erroneously stated that his payments on a Rural Housing

Service loan were past due when, he maintains, the loan

had been fully paid. Ibid. Respondent alleges that he

sent a dispute letter to the credit reporting agency,

which alerted USDA of the issue, but that USDA failed

to make a good-faith effort to investigate or correct the

disputed information. Id. at 4a-5a, 36a-37a.

Respondent filed this suit against USDA, the consumer reporting agency, and another loan provider.

App., infra, 4a-5a, 36a-37a. As relevant here, respondent contended that USDA’s alleged failure to investigate and correct the disputed loan status after having

received notice of the dispute violated 15 U.S.C. 1681s2(b)(1)—a provision added by Section 2413 of the 1996

Act, 110 Stat. 3009-448 to 3009-449—which imposes

those obligations on persons that furnish credit information to consumer reporting agencies. App., infra, 4a

n.1, 37a. Claiming that the alleged violations were both

negligent and willful, see id. at 4a, 37a, respondent

sought actual, statutory, and punitive damages, plus attorney’s fees, see Am. Compl. 12.

USDA moved to dismiss respondent’s claims against

it on the ground that, although the 1970 Act’s definition

of “person” includes “any * * * government or governmental subdivision or agency,” 15 U.S.C. 1681a(b), the

remedial provisions that were amended in 1996 to extend to “person[s]” (15 U.S.C. 1681n, 1681o) do not unequivocally and unambiguously waive the sovereign immunity of the United States for purposes of imposing

monetary liability, including civil penalties, punitive

damages, and attorney’s fees. See App., infra, 5a, 37a38a.

2. The district court dismissed respondent’s claims

against USDA. App., infra, 35a-48a. The court explained that a “waiver of the government’s immunity

‘must be unequivocally expressed in statutory text,’ ” id.

at 38a (quoting Lane v. Peña, 518 U.S. 187, 192 (1996)),

and that “[e]ven when a waiver is unequivocally expressed, the scope of that waiver must be strictly construed in favor of the government, settling any ambiguity in favor of immunity,” ibid. (citing United States v.

Williams, 514 U.S. 527, 531 (1995)). The court further

explained that “[a]mbiguity exists when there is a ‘plausible’ reading of the statute that does not impose ‘monetary liability on the Government.’ ” Ibid. (quoting

United States v. Nordic Village, Inc., 503 U.S. 30, 37

(1992)).

The district court observed that the Fourth and

Ninth Circuits had held that FCRA does not unequivocally waive the United States’ sovereign immunity from

civil liability and damages in a suit by a private plaintiff,

while the Seventh Circuit had reached the opposite conclusion. App., infra, 40a-42a; see Robinson v. United

States Department of Education, 917 F.3d 799 (4th Cir.

2019), cert. denied, 140 S. Ct. 1440 (2020); Daniel v. National Park Service, 891 F.3d 762 (9th Cir. 2018);

Bormes v. United States, 759 F.3d 793 (7th Cir. 2014).

The court found “the reasoning of the Fourth and Ninth

Circuits convincing.” App., infra, 42a.

In particular, the district court found it significant

that “reading ‘person’ to include the United States and

its agencies throughout the FCRA would lead to illogic[al] results,” such as “subject[ing] the United

States to criminal penalties,” authorizing “ ‘state and

federal enforcement’ actions” against the federal government, and “expos[ing] the Government to punitive

damages.” App., infra, 42a-44a. The court observed

that “another section” of FCRA contains an “express

waiver of sovereign immunity,” thereby “demonstrat[ing] that Congress uses particular and explicit

language in waiving immunity”—language Congress

did not use in the general remedial provisions at issue

in this case. Id. at 44a-45a; see 15 U.S.C. 1681u( j)

(providing damages actions for certain prohibited disclosures of information provided to the FBI). And the

court further observed that other statutes waiving sovereign immunity “expressly mention ‘the United

States’ ” in waivers found within “liability sections,”

whereas a waiver here would have to be “deduced from

broad language in the definition section” of FCRA. Id.

at 45a-46a (citing the Little Tucker Act, 28 U.S.C.

1346(a), and the Federal Tort Claims Act, 28 U.S.C.

2674).

The district court entered a partial final judgment

under Rule 54(b) of the Federal Rules of Civil Procedure against respondent and in favor of USDA on all of

respondent’s claims against USDA. D. Ct. Doc. 38

(June 9, 2021).

3. The court of appeals reversed. App., infra, 1a34a. The court noted that the Fourth Circuit in Robinson and the Ninth Circuit in Daniel had “concluded that

the United States is not subject to liability under the

FCRA,” but that the Seventh Circuit in Bormes and the

D.C. Circuit in Mowrer v. United States Department of

Transportation, 14 F.4th 723 (2021), in an opinion rendered after the district court’s decision in this case, had

“reached the opposite conclusion.” App., infra, 6a. The

court rejected the analyses of the Fourth and Ninth Circuits, see id. at 17a-28a, and stated that it instead

“agree[d] with the reasoning of the D.C. and Seventh

Circuits,” id. at 6a.

The court of appeals emphasized that FCRA’s “express definition” of person “explicitly applies ‘for purposes of this subchapter,’ ” necessarily including, in the

court’s view, “its enforcement provisions.” App., infra,

8a (citation omitted). The court thus concluded that

“the plain text of the statute operates as a waiver of sovereign immunity,” ibid., a conclusion it found “reinforced” by the fact that, unlike some other statutes,

FCRA does not “expressly preserve[] the United

States’ sovereign immunity against civil suits,” id. at

11a-12a; see id. at 11a-13a. The court rejected the government’s arguments based on FCRA’s structure and

history in light of what it viewed to be “clear and unambiguous terms.” Id. at 14a; see id. at 13a-17a, 31a-34a.

The court of appeals acknowledged that uniformly

including the federal government each time FCRA’s remedial provisions apply to a “person” would produce

anomalous results, such as exposing the United States

to punitive damages, criminal penalties, and enforcement actions by federal agencies and States. App., infra, 21a-28a. But the court reasoned that it could “depart[] from a statutory definition only to the extent necessary to avoid untenable—not merely implausible—

results.” Id. at 22a. For example, the court opined that

FCRA did not waive federal sovereign immunity with

respect to criminal liability because “[i]t would be

absurd * * * to subject the federal government to criminal prosecution,” id. at 22a—but that FCRA did waive

federal sovereign immunity for punitive damages and

enforcement actions by federal agencies and States because those results were merely “implausible,” id. at

25a; see id. at 25a-26a. And the court then concluded

that “it is certainly not absurd for Congress to” have

waived federal sovereign immunity for purposes of

FCRA’s private-damages provisions. Id. at 27a.

REASONS FOR GRANTING THE PETITION

The court of appeals incorrectly held that FCRA

waives the sovereign immunity of the United States to

suits by private plaintiffs for money damages. The

court concluded that because the 1970 Act defines “person” to include the government, the 1996 Act’s extension of civil liability to certain “person[s]” implicitly

waives the federal government’s sovereign immunity to

suits for money damages, notwithstanding the absence

of an explicit statutory waiver of sovereign immunity.

That conclusion cannot be reconciled with this Court’s

precedents requiring waivers of sovereign immunity to

be unequivocal and unambiguous. As the court of appeals itself acknowledged, its holding squarely conflicts

with holdings of the Fourth and Ninth Circuits. And as

Justice Thomas has recognized, the question presented

“concerns a matter of great importance” because it

could “have a significant impact on the public fisc.”

Robinson v. Department of Education, 140 S. Ct. 1440,

1442 (2020) (Thomas, J., dissenting from the denial of

certiorari). Although the Court declined to review the

question presented in Robinson, supra (No. 19-512),

that was at a time when it appeared that the circuit conflict might resolve itself. Since then, however, the conflict has only deepened, and the decision below solidifies

it. This Court should grant review to resolve that conflict and correct the court of appeals’ erroneous decision.

A. The Court Of Appeals Erred In Holding That FCRA

Waives Sovereign Immunity For Private Damages Suits

1. Waivers of sovereign immunity must be unequivocal

and unambiguous

“It is inherent in the nature of sovereignty, not to be

amenable to the suit of an individual without its consent.” The Federalist No. 81, at 548 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (emphasis omitted). The

United States accordingly has long enjoyed immunity

from suit without its consent. See, e.g., United States v.

Clarke, 33 U.S. (8 Pet.) 436, 444 (1834) (Marshall, C.J.)

(“As the United States are not suable of common right,

the party who institutes such suit must bring his case

within the authority of some act of [C]ongress, or the

court cannot exercise jurisdiction over it.”).

The foundational principle of immunity from suit

protects “the nation from unanticipated intervention in

the processes of government.” Alden v. Maine, 527

U.S. 706, 750 (1999) (citation omitted). That is especially true in the case of claims for money damages because “the allocation of scarce resources among competing needs and interests lies at the heart of the political

process.” Id. at 751. Were the federal government to

be stripped of sovereign immunity without consent,

“private suits for money damages would place unwarranted strain on the [government’s] ability to govern in

accordance with the will of [its] citizens.” Id. at 750-751.

It is thus “a common rule, with which [courts] presume congressional familiarity, that any waiver of the

National Government’s sovereign immunity must be unequivocal.” United States Department of Energy v.

Ohio, 503 U.S. 607, 615 (1992) (citation omitted); see

Lane v. Peña, 518 U.S. 187, 192 (1996). As this Court

has explained in the parallel context of state sovereign

immunity, “[t]he requirement of a clear statement in

the text of [a] statute ensures that Congress has specifically considered state sovereign immunity and has intentionally legislated on the matter,” rather than “ ‘legislat[ing] on a sensitive topic inadvertently or without

due deliberation.’ ” Sossamon v. Texas, 563 U.S. 277,

290-291 (2011) (citation omitted); see id. at 285 n.4 (observing that the requirement of an “unequivocally expressed” waiver applies equally to state and federal sovereign immunity).

The Court has further recognized that Indian tribes

likewise enjoy the “ ‘immunity from suit traditionally

enjoyed by sovereign powers’ ” as “[a]mong the core aspects of sovereignty that tribes possess.” Michigan v.

Bay Mills Indian Community, 572 U.S. 782, 788 (2014)

(citation omitted). And as is the case with other sovereigns, “to abrogate such immunity, Congress must ‘unequivocally’ express that purpose.” Id. at 790 (brackets

and citation omitted). Foreign sovereigns also long enjoyed “complete immunity from suit in the courts of this

country” as a “matter of grace and comity on the part of

the United States,” Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 486 (1983), and are “presumptively immune” from suit today except in “specific” enumerated statutory circumstances, Federal Republic of

Germany v. Philipp, 141 S. Ct. 703, 707 (2021); see 28

U.S.C. 1602 et seq.

The requirement of a clear and unequivocal waiver

of sovereign immunity demands that “[a]ny ambiguities

in the statutory language are to be construed in favor of

immunity, so that the Government’s consent to be sued

is never enlarged beyond what a fair reading of the text

requires.” FAA v. Cooper, 566 U.S. 284, 290 (2012) (citation omitted). “Ambiguity exists if there is a plausible

interpretation of the statute that would not authorize

money damages against the Government.” Id. at 290291. That rule ensures that courts will not mistakenly

impose burdens on the fisc that Congress did not authorize. See Office of Personnel Management v. Richmond, 496 U.S. 414, 423, 428 (1990); see Alden, 527 U.S.

at 751.

2. FCRA’s text does not contain an unequivocal and unambiguous waiver of sovereign immunity

Nothing in the text or statutory history of Section

1681n, Section 1681o, or the other FCRA provisions at

issue here contains an unambiguous and unequivocally

expressed waiver of the sovereign immunity of the

United States—or, for that matter, an abrogation of the

sovereign immunity of States, Indian tribes, and foreign

governments. The court of appeals reasoned that because Congress defined “person” in the original 1970

Act to include any “government or governmental subdivision or agency,” 1970 Act, sec. 601, § 603(b), 84 Stat.

1128 (15 U.S.C. 1681a(b)), and because that definition is

“applicable for the purposes of [FCRA],” § 603(a), 84

Stat. 1128 (15 U.S.C. 1681a(a)), the 1996 provisions of

FCRA imposing liability on “person[s]” also impose liability on the United States. See App., infra, 8a-11a.

That reasoning is unsound.

a. The 1970 Act itself plainly did not waive the sovereign immunity of the United States. As originally enacted, FCRA principally regulated “consumer reporting agenc[ies],” which are entities that aggregate and

disseminate personal information about consumers.

1970 Act, sec. 601, § 603(f ), 84 Stat. 1129; see §§ 604605, 607-614, 84 Stat. 1129-1133. Consistent with that

focus, the 1970 Act’s private damages provisions applied

only to “consumer reporting agenc[ies]” and “user[s] of

information”—not to “person[s]” as such. §§ 616-617,

84 Stat. 1134.

Nor could Congress have intended for the United

States to be deemed a “person” for each provision of the

1970 Act. Section 619 of the 1970 Act imposed criminal

liability, including imprisonment for up to one year, on

any “person who knowingly and willfully obtains information on a consumer from a consumer reporting

agency under false pretenses.” 84 Stat. 1134 (15 U.S.C.

1681q). Congress “never would have thought [that provision] applied to the United States.” Daniel v. National Park Service, 891 F.3d 762, 775 n.12 (9th Cir.

2018); see United States v. Cooper Corp., 312 U.S. 600,

609 (1941) (finding it “obvious” that the term “person”

used in the Sherman Act does not include the United

States because otherwise the United States would be

subject to civil and criminal liability); cf. Return Mail,

Inc. v. United States Postal Service, 139 S. Ct. 1853,

1863 & n.4 (2019) (observing that a provision relieving

the Patent Office of certain confidentiality obligations

when “ ‘a person’ ” is charged “with a criminal offense”

is an example of a use of “person” that “plainly excludes

the Government”). And no court has suggested that the

1970 Act subjected the United States—or States, Indian tribes, or foreign governments—to criminal liability; indeed, the court of appeals in this case acknowledged that “[i]t would be absurd * * * to subject the

federal government to criminal prosecution” under Section 619. App., infra, 22a.

Against that background, the 1996 Act cannot

properly be construed to have silently subjected the

United States to suits for money damages. Although

the 1996 Act expanded FCRA’s scope from consumer

reporting agencies to “persons” who provide information to reporting agencies and who make use of

credit reports, e.g., §§ 2403, 2411, 110 Stat. 3009-430 to

3009-431, 3009-443 to 3009-446 (15 U.S.C. 1681b(b)(2)

and (3), 1681m(a)), its expanded remedial provisions do

not contain any language expressing an “unequivocal”

waiver of federal sovereign immunity, Ohio, 503 U.S. at

615. For example, the 1996 Act increased the criminal

penalties applicable to “person[s],” § 2415, 110 Stat.

3009-450 (15 U.S.C. 1681q); added provisions permitting the FTC and state governments to sue “person[s]”

in federal court for FCRA violations, including for civil

penalties, §§ 2416, 2417, 110 Stat. 3009-450 to 3009-452

(codified as amended at 15 U.S.C. 1681s); and provided

for private suits against “person[s]” for actual, statutory, and punitive damages, plus costs and attorney’s

fees, § 2412, 110 Stat. 3009-446 to 3009-447 (15 U.S.C.

1681o).

Yet nothing in the 1996 Act suggests that any of

those expanded provisions were intended to subject the

United States or state, tribal, or foreign governments

to private suits for money damages. Nor did the court

of appeals identify any language elsewhere in the 1996

Act waiving or abrogating sovereign immunity. And because the 1970 Act also did not waive or abrogate sovereign immunity, the combination of the two statutes

cannot be read to have impliedly created such a waiver

or abrogation. As this Court has explained, “[a] waiver

of the Federal Government’s sovereign immunity must

be unequivocally expressed in statutory text, and will

not be implied.” Lane, 518 U.S. at 192 (citation omitted). And that principle applies equally to the States,

Indian tribes, and foreign governments. See pp. 11-12,

supra.

Employees of the Department of Public Health &

Welfare v. Department of Public Health & Welfare, 411

U.S. 279 (1973) (Employees), illustrates the Court’s

general refusal to interpret amendments to an existing

scheme as allowing new damages actions against the

sovereign when neither the text nor history of the

amendments affirmatively demonstrates that Congress

intended that result. Employees concerned an amendment to the Fair Labor Standards Act of 1938 (FLSA),

29 U.S.C. 201 et seq., that expanded the statutory definition of “employer” to include state hospitals. See 411

U.S. at 282-283. The FLSA already provided for civil

remedies, including back pay and liquidated damages,

against “[a]ny employer who violates the” FLSA’s minimum-wage and overtime provisions. Id. at 283 (citation

omitted). Yet the Court held that the amendment’s ex-

pansion of the term “employer” to include state hospitals did not expose the States that ran those hospitals

to damages liability otherwise applicable to an “employer.” See id. at 284-286. The Court stated that Congress could “place new or even enormous fiscal burdens

on the States.” Id. at 284. But under the unequivocalwaiver rule described above, the Court found the FLSA

amendments wanting: “[W]e have found not a word in

the history of the 1966 amendments to indicate a purpose of Congress to make it possible * * * to sue the

State,” and therefore “[i]t is not easy to infer that Congress * * * desired silently to deprive the States of an

immunity they have long enjoyed under * * * the Constitution.” Id. at 285.

In Employees, Congress expanded the FLSA’s definition of “employer” without amending the statute’s remedial provisions that were applicable to “any employer.” Here, Congress expanded FCRA’s remedial

provisions to reach “any person” without amending the

statutory definition of “person.” In neither case, however, did Congress include affirmative language unequivocally waiving or abrogating sovereign immunity.

Cf. Kimel v. Florida Board of Regents, 528 U.S. 62, 76

(2000) (finding an abrogation of state sovereign immunity where Congress amended a statute “to provide for

suits against States in precisely the same Act in which

it extended the [statute’s] substantive requirements to

the States”). As with the FLSA amendment in Employees, therefore, the 1996 Act cannot properly be read to

have exposed the United States (or States, Indian

tribes, and foreign governments) to private suits for

money damages under FCRA, even on the assumption

that the “literal language” of the definitional provision

might plausibly be read to impose such liability. Em-

ployees, 411 U.S. at 283. Indeed, this Court has long

refused to read statutes to have waived the sovereign

immunity of the United States absent a clear and unambiguous statement, even when the statute could reasonably be read to the contrary. E.g., United States v.

Idaho ex rel. Director, Idaho Department of Water Resources, 508 U.S. 1, 7 (1993); Library of Congress v.

Shaw, 478 U.S. 310, 323 (1986); Employees, supra;

United States v. Chemical Foundation, Inc., 272 U.S. 1,

20-21 (1926).

The court of appeals provided no basis for departing

from those precedents here. Instead, it dismissed the

relevance of Employees in a cursory footnote on the

ground that the Court’s reliance on legislative history

there did not reflect current modes of statutory analysis. App., infra, 17a n.11. But the Court in Employees

relied not only on legislative history but also on the absence of “clear language” in the statute demonstrating

that “immunity was swept away.” 411 U.S. at 285. In

light of Employees, Congress could not reasonably have

anticipated in 1996 that the bare definition of “person”

in the 1970 Act would be sufficient, standing alone, to

waive sovereign immunity and impose broad and substantial liabilities on the United States.

b. Not only do the 1970 Act and 1996 Act lack unequivocal language waiving sovereign immunity, but a

reading of FCRA as not waiving the United States’ immunity from private suits for money damages is at a

minimum plausible. See Cooper, 566 U.S. at 290-291

(requiring only “a plausible interpretation of the statute

that would not authorize money damages against the

Government”).

For example, reading FCRA as having preserved the

sovereign immunity of the United States (as well as

state, tribal, and foreign governments) does not render

superfluous the inclusion of “government or governmental subdivision or agency” in the definition of “person” in 15 U.S.C. 1681a(b). That inclusion renders the

substantive duties of a consumer reporting agency with

respect to a “person” equally applicable with respect to

a government or governmental subdivision or agency.

See, e.g., 15 U.S.C. 1681b (describing various circumstances under which a consumer reporting agency may

furnish a consumer report to a “person”); 15 U.S.C.

1681c-1(i)(4) (describing exceptions to the requirement

to place a security freeze on the making of a consumer

report if the request is by a “person” for certain enumerated uses). And some courts have stated that

FCRA’s substantive requirements that apply to “persons” also could be read as applying to governmental

bodies. See, e.g., Robinson v. United States Department of Education, 917 F.3d 799, 806 (4th Cir. 2019),

cert. denied, 140 S. Ct. 1440 (2020).

Nor would there be any inconsistency in reading certain provisions in FCRA applicable to a “person” as applying to the government, but not treating the provisions for private damages actions in the same way. Sovereign immunity protects the government from suit, not

from congressionally imposed obligations. The requirement that a statute speak in unequivocal and unambiguous terms thus applies only to putative waivers or abrogations of sovereign immunity, not to general dutyimposing provisions. It is thus unremarkable that the

applicability of a FCRA provision to the government

could depend on whether it dispenses with sovereign

immunity. See Robinson, 917 F.3d at 806 (“[T]he substantive and enforcement provisions in FCRA are not

one and the same.”).

The court of appeals recognized (App., infra, 22a23a) that principle in finding that the FCRA provision

expressly subjecting “person[s]” to criminal prosecution, 15 U.S.C. 1681q; see 1996 Act § 2415, 110 Stat.

3009-450 (increasing the criminal penalties), is inapplicable to the United States. As the court observed, “[i]t

would be absurd * * * to subject the federal government to a criminal prosecution” under that provision.

App., infra, 22a; see Daniel, 891 F.3d at 770 (“patently

absurd”) (citation omitted). And it is likewise quite unlikely that Congress subjected States, Indian tribes,

and foreign governments to criminal prosecution.

But the same analysis applies to the other remedial

provisions in FCRA. The 1996 Act authorized the FTC

to seek civil penalties against “person[s]” who violate

the statute. § 2416, 110 Stat. 3009-450 (15 U.S.C.

1681s(a)). It is hard to imagine that Congress intended

to enable one federal agency (the FTC) to sue another

federal agency—or the United States itself—in federal

court to recover civil penalties, without being pellucidly

clear about such an intent. Cf. Joseph W. Mead, Interagency Litigation and Article III, 47 Ga. L. Rev. 1217,

1245 (2013).

The 1996 Act also authorized States to enforce

FCRA’s provisions against “any person,” including for

monetary damages, in any court of competent jurisdiction. § 2417, 110 Stat. 3009-451 to 3009-452 (15 U.S.C.

1681s(c)). It would be anomalous and contrary to the

constitutional structure to assume that Congress

intended—again, without making such intent clear—to

allow States to seek damages under FCRA against the

United States, cf. McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 431 (1819), or against another State and its

agencies, cf. Franchise Tax Board v. Hyatt, 139 S. Ct.

1485, 1499 (2019), or against Indian tribes, cf. Bay

Mills, 572 U.S. at 788-789, or against foreign governments, cf. 28 U.S.C. 1605-1607.

Similarly, Congress cannot be assumed to have subjected the United States and other governments to punitive damages, see 15 U.S.C. 1681n, especially given

the venerable “presumption against imposition of punitive damages on governmental entities.” Vermont

Agency of Natural Resources v. United States ex rel.

Stevens, 529 U.S. 765, 785 (2000); see Robinson, 917

F.3d at 805 (explaining that reading FCRA to waive

sovereign immunity for punitive damages “would trample yet another presumption”); cf., e.g., 11 U.S.C.

106(a)(3) (excepting governmental units from punitive

damages); 28 U.S.C. 1606 (precluding punitive damage

awards against foreign sovereigns).

Those provisions make clear that Congress did not

contemplate treating the United States or its agencies

(or States, Indian tribes, or foreign governments) as

“persons” for all of the remedial provisions of FCRA.

See Robinson, 917 F.3d at 806; Daniel, 891 F.3d at 770.

And there is no sound basis to treat the provisions for

private damages actions differently from the other remedial provisions discussed above—especially given

the potentially enormous burden on the public fisc that

throwing open the courthouse doors to FCRA private

damages suits against the federal government could entail. See Robinson, 140 S. Ct. at 1441-1442 (Thomas, J.,

dissenting from the denial of certiorari) (observing that

“the Federal Government’s potential liability under the

FCRA is substantial” and that a “waiver of sovereign

immunity would thus have a significant impact on the

public fisc”); Robinson, 917 F.3d at 804 (“There is no

telling the true costs of [finding] a waiver.”).

The court of appeals, however, resisted that conclusion only by inverting the analysis this Court’s precedents demand. The court of appeals insisted on reading

each FCRA remedial provision to waive sovereign immunity even if such a reading would yield what the court

called “merely implausible” results. App., infra, 22a.

But this Court has required precisely the opposite:

courts must adopt any “plausible interpretation of the

statute that would not authorize money damages

against the Government.” Cooper, 566 U.S. at 290-291

(emphasis added). Instead of adopting a reading of

FCRA that would not waive or abrogate sovereign immunity, the court of appeals adopted an implausible

reading that would do precisely that.

The court of appeals relied heavily on the fact that

FCRA’s statutory definitions “apply to the entire subchapter” of the United States Code containing FCRA.

App., infra, 11a; see id. at 8a, 22a. But the FLSA provision at issue in Employees, supra, likewise stated that

its definition of “ ‘[e]mployer’ ” applied to that term “[a]s

used in this chapter,” 29 U.S.C. 203 (1970). This Court

nevertheless explained that such language did not answer the sovereign-immunity question. Employees, 411

U.S. at 283-285. That is in keeping with the general

principle that sovereign-immunity waivers must be

evaluated on a provision-by-provision basis. E.g., Idaho

Department of Water Resources, 508 U.S. at 8. Indeed,

even outside the context of sovereign immunity, this

Court has understood that a term nominally given an

Act-wide definition need not invariably be accorded a

single, rigid meaning throughout the statute, for “a

statutory term—even one defined in the statute—‘may

take on distinct characters from association with distinct statutory objects calling for different implementa-

tion strategies.’ ” Utility Air Regulatory Group v.

EPA, 573 U.S. 302, 320 (2014) (citation omitted).

3. The statutory structure and history confirm that

FCRA does not waive sovereign immunity

Other indications in the statutory structure and history refute the court of appeals’ holding that the 1996

Act unequivocally and unambiguously waives sovereign

immunity.

a. As the court of appeals recognized (App., infra,

22a-24a), mechanically applying FCRA’s definition of

“person” throughout the statute would subject States to

private suits for money damages as well. Yet Congress

presumably enacted the 1996 Act while mindful of this

Court’s decision in Seminole Tribe v. Florida, 517 U.S.

44 (1996), issued only months earlier, which held that

Congress lacked authority under the Commerce Clause

to abrogate state sovereign immunity to private damages actions. See id. at 47, 72. It is implausible that

Congress, “in an insurrectionary moment,” Robinson,

917 F.3d at 805, responded to Seminole Tribe with an

attempt to subject States to both compensatory and punitive damages under FCRA. A more plausible reading

is that Congress did not intend to extend the provisions

for private civil damages actions to States. And given

that the same “strict construction principle” applies to

state and federal sovereigns alike when determining

whether Congress has unequivocally abrogated or

waived sovereign immunity, Sossamon, 563 U.S. at 285

n.4, the same conclusion should obtain in this case with

respect to the federal government.

Indeed, Congress has demonstrated that when it

wants to permit damages actions against the United

States under FCRA, it does so expressly. In a FCRA

amendment enacted just a few months before the 1996

Act, Congress empowered the FBI to obtain and use

consumer information from consumer reporting agencies in limited circumstances for national security purposes, and simultaneously provided that “[a]ny agency

or department of the United States obtaining or disclosing any consumer reports, records, or information contained therein in violation of this section is liable to the

consumer” for statutory, actual, and (in certain circumstances) punitive damages. Intelligence Authorization

Act for Fiscal Year 1996, Pub. L. No. 104-93, Tit. VI,

sec. 601(a), § 624(i), 109 Stat. 976 (15 U.S.C. 1681u( j)).

This Court has explained that “differences in language”

in the same statute generally “convey differences in

meaning.” Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718, 1723 (2017). Congress’s unequivocal and

unambiguous waiver of federal sovereign immunity in

Section 1681u( j) is a strong indication that it intended

no such waiver in Sections 1681n and 1681o. See Daniel, 891 F.3d at 771 (“Equating ‘the United States’ with

a ‘person’ in multiple sections of the FCRA also conflicts with a very clear waiver of sovereign immunity

elsewhere in the statute.”).

The court of appeals attempted to distinguish Section 1681u on the ground that “only federal agencies are

subject to [its] substantive requirements in the first

place.” App., infra, 18a. If anything, that distinction

cuts the other way: Congress would have had even less

reason to explicitly identify the United States in Section

1681u( j), given that no other “person” (on the court’s

view) had duties or obligations under 1681u. That Congress did in fact explicitly name the United States in

Section 1681u( j) underscores that even when Congress

imposes particular substantive duties only on the federal government, it still knows that it must be unequiv-

ocal and unambiguous if it wishes to waive sovereign immunity and expose the government to private damages

actions for breaching those duties.

Not only did the court of appeals mistakenly discount

that provision in FCRA itself, but it improperly relied

(App., infra, 11a-13a) on inferences from provisions in

other statutes—namely, the Equal Credit Opportunity

Act (ECOA), 15 U.S.C. 1691 et seq., and the Truth in

Lending Act (TILA), 15 U.S.C. 1601 et seq. ECOA expressly exempts “a government or governmental subdivision or agency” from a punitive-damages provision

that otherwise applies to “[a]ny creditor,” 15 U.S.C.

1691e(b), and TILA expressly preserves state and federal sovereign immunity, 15 U.S.C. 1612(b). Based on

those provisions, the court concluded (App., infra, 11a13a) that the lack of similar provisions in FCRA should

be read to waive the sovereign immunity of the United

States. That conclusion was mistaken. Waivers of sovereign immunity must be “unequivocally expressed,”

Sossamon, 563 U.S. at 285 n.4, not implicitly found by

negative “inference” (App., infra, 13a n.7) from provisions in other statutes. See Sossamon, 563 U.S. at 290291; Lane, 518 U.S. at 192.

b. Another reason to doubt that FCRA waives sovereign immunity is that Congress is unlikely to have intended the 1996 Act to disrupt the carefully calibrated

remedies available against the federal government under the Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat.

1896 (5 U.S.C. 552a). That statute comprehensively

regulates Executive Branch agencies in their collection,

maintenance, use, and dissemination of “records” containing information about an “individual,” when those

records are maintained as part of a “system of records.”

5 U.S.C. 552a(a)(1)-(5) and (b). The Privacy Act author-

izes a limited class of private civil actions to enforce its

terms. 5 U.S.C. 552a(g); see Cooper, 566 U.S. at 303

(observing that Congress’s goal in enacting the Privacy

Act was “to cabin relief, not to maximize it”).

The court of appeals’ understanding of FCRA would

vastly expand the liability of the United States for

federal-agency activity already covered by the Privacy

Act. The Privacy Act, for example, addresses disclosures by a federal agency to a consumer reporting

agency of an overdue debt that the federal agency is trying to collect—a type of disclosure that a federal agency

is required by law to make under certain circumstances,

see 31 U.S.C. 3711(e), including with respect to student

loans, see 20 U.S.C. 1080a, 1087a(b)(2), 1087e(a)(1). If

the disclosed record of the overdue debt contains an error, the Privacy Act offers procedures whereby the individual to whom the record pertains can correct the

record, see 5 U.S.C. 552a(d), and contains requirements

for reporting such corrections, see 5 U.S.C. 552a(c)(4).

The FCRA provision respondent invokes contains analogous (but not identical) correction procedures and a

notice requirement when there has been an error in a

disclosure made by a “person” to a consumer reporting

agency. See 15 U.S.C. 1681s-2(b).

Yet under the Privacy Act, an individual generally

may seek only injunctive relief, not money damages, for

failure to correct the record. 5 U.S.C. 552a(g)(1)(A) and

(2)(A). Compensatory damages are available only if “actual damages” resulted from an “intentional or willful”

failure to take specified actions. 5 U.S.C. 552a(g)(4)(A);

see Doe v. Chao, 540 U.S. 614, 620-621 (2004). By contrast, on the court of appeals’ reading, FCRA would

permit a damages action not only for a failure to update

the consumer reporting agency, but also for a failure to

correct the record. 15 U.S.C. 1681n, 1681o, and 1681s2(b). It would permit either type of action to be premised merely on negligence, without any need to prove

intentional or willful conduct. 15 U.S.C. 1681o. And it

would permit, in the case of a willful violation, automatic

statutory damages without any showing that the plaintiff sustained “actual damages”—and punitive damages

as well. 15 U.S.C. 1681n(a)(1)(A). Congress cannot

have intended the Privacy Act’s reticulated remedial

scheme to be so easily displaced or circumvented.

The court of appeals recognized the “overlap” between the Privacy Act and FCRA but asserted that no

“actual inconsistency” existed because “the two statutes

impose liability on federal agencies in different ways.”

App., infra, 32a, 34a. But that is the very point. There

is no sound reason to believe that Congress intended to

make the United States liable for money damages under

FCRA based on the same conduct that Congress found

insufficient to trigger money damages under the Privacy Act. That is especially true given that the extent

of liability under the Privacy Act was the subject of extensive congressional debate: Congress considered and

rejected amendments that would have allowed recovery

for negligent violations or the award of punitive damages. See Fitzpatrick v. IRS, 665 F.2d 327, 330 (11th

Cir. 1982), abrogated in part on other grounds by Doe,

540 U.S. at 618; see also, e.g., 120 Cong. Rec. 36,613,

36,659-36,660 (1974) (statements of Reps. McCloskey,

Erlenborn, and Butler); id. at 36,956 (statement of Rep.

Butler).

c. Finally, the legislative history of the 1996 Act underscores that Congress did not understand itself to

have been imposing vast new liabilities on the United

States and other governments. See Employees, 411

U.S. at 285 (finding no waiver of state sovereign immunity in part because “we have found not a word in the history of the 1966 amendments to indicate” that Congress

wished to waive such immunity). The House Report on

an early version of the 1996 Act observed only that extension of the provisions for private damages suits to

“ ‘any person who’ ” fails to comply with FCRA would

bring within the scope of the provisions “persons who

furnish information to consumer reporting agencies,

such as banks and retailers.” H.R. Rep. No. 486, 103d

Cong., 2d Sess. 49 (1994); see S. Rep. No. 185, 104th

Cong., 1st Sess. 48-49 (1995). Likewise, the sponsor of

a Senate bill containing identical language described

those provisions as extending liability to “banks, retailers, and other creditors.” 140 Cong. Rec. 8941 (1993)

(statement of Sen. Bryan). Nothing indicates that the

language was understood to extend liability to, and dispense with the sovereign immunity of, the United

States or state, tribal, or foreign governments.

The court of appeals discounted that history, quoting

this Court’s statement in Dellmuth v. Muth, 491 U.S.

223 (1989), that “ ‘legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended’ to waive sovereign immunity.” App., infra, 16a

(quoting Dellmuth, 491 U.S. at 230). But Dellmuth’s

point was that because a waiver or abrogation of sovereign immunity requires “unmistakably clear” and “unequivocal” language, “recourse to legislative history will

be futile” if Congress does not speak with the requisite

clarity. 491 U.S. at 230. In other words, “[a] statute’s

legislative history cannot supply a waiver that does not

appear clearly in any statutory text.” Lane, 518 U.S. at

192 (emphasis added).

The point here, by contrast, is that the 1996 Act does

not contain any unmistakably clear or unequivocal language waiving or abrogating sovereign immunity, and

the statutory and legislative history is evidence of the

contemporaneous linguistic understanding that FCRA

did not take the momentous step of doing so. See Quern

v. Jordan, 440 U.S. 332, 343 (1979) (observing, when declining to construe the Civil Rights Act of 1871, ch. 22,

17 Stat. 2467, to have abrogated state sovereign immunity, that the statute “passed with only limited debate

and not one Member of Congress mentioned” immunity).

B. This Court’s Review Is Warranted

1. The court of appeals acknowledged that “the

Courts of Appeals to have considered this issue are split

down the middle.” App., infra, 2a. The Fourth and

Ninth Circuits have held that FCRA does not unequivocally and unambiguously waive the federal government’s sovereign immunity from private damages actions. See Robinson, 917 F.3d at 806; Daniel, 891 F.3d

at 775. In contrast, the District of Columbia and Seventh Circuits, joined now by the Third Circuit in the decision below, have held the opposite. See Mowrer v.

United States Department of Transportation, 14 F.4th

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

793 (7th Cir. 2014). Justice Thomas remarked upon the

“pre-existing Circuit split” three years ago, and the decision below has only further “deepened” it. Robinson,

140 S. Ct. at 1441 (Thomas, J., dissenting from the denial of certiorari).

To be sure, the Court denied review in Robinson.

But at the time, only the Seventh Circuit in Bormes had

held that FCRA waives sovereign immunity—and that

court had signaled a potential retreat from that position

in Meyers v. Oneida Tribe of Indians, 836 F.3d 818

(2016), cert. denied, 137 S. Ct. 1331 (2017), where it held

that FCRA does not abrogate tribal sovereign immunity. As the government observed in opposing certiorari

in Robinson, the decisions in Meyers and Bormes were

“in serious tension” because “there is no textual basis in

FCRA’s definition of ‘person’ to treat the word ‘government’ as applying to the federal government (and possibly state governments) but not tribal governments.”

Br. in Opp. at 23, Robinson, supra (No. 19-512). “Accordingly,” the government concluded, “it is far from

clear that, if squarely presented with the issue, the Seventh Circuit would adhere to its holding in Bormes, especially now that two other courts of appeals have expressly disagreed with Bormes—and none has agreed

with it.” Ibid.

Since the denial of certiorari in Robinson, however,

the D.C. and Third Circuits have joined the Seventh

Circuit in holding that FCRA waives sovereign immunity, thereby cementing the circuit conflict. In addition,

the court of appeals in this case attempted to distinguish Meyers on the ground that abrogation of tribal

sovereign immunity “may perhaps require specificity

beyond that required to waive the United States’ immunity.” App., infra, 30a; see id. at 28a-31a. That distinction is unconvincing and would lead to anomalous results, see Br. in Opp. at 23-24, Robinson, supra (No. 19512), but it indicates that the government was mistaken

to predict that the circuit conflict would resolve itself.

“Thus, absent intervention from this Court * * * the

Courts of Appeals will remain in conflict.” Robinson,

140 S. Ct. at 1441 (Thomas, J., dissenting from the denial of certiorari).

2. The question presented also involves an issue of

exceptional importance. The federal government is the

nation’s largest employer. It is also the nation’s largest

lender and creditor. In both capacities, the federal government routinely makes use of consumer reports and

provides information to consumer reporting agencies.

See Robinson, 140 S. Ct. at 1442 (Thomas, J., dissenting

from the denial of certiorari) (explaining that the federal government “is one of the largest furnishers of

credit information in the country”). Under the construction of the statute adopted by the court of appeals,

the federal government could be a ubiquitous FCRA defendant that could routinely be threatened with substantial monetary liability for its everyday employment

and lending activities.

At the end of fiscal year 2021, for example, the delinquent non-tax debt owed to the United States totaled

$197.7 billion. Department of the Treasury, Fiscal Year

2021 Report to Congress: U.S. Government Non-Tax

Receivables and Debt Collection Activities of Federal

Agencies 1 (Nov. 2021), www.fiscal.treasury.gov/files/

dms/debt21.pdf. Federal agencies have been authorized since 1983, and required since 1996, to report such

delinquent accounts to consumer reporting agencies in

certain circumstances. See Act of Jan. 12, 1983, Pub. L.

No. 97-452, § 1, 96 Stat. 2467, 2470; Debt Collection Improvement Act of 1996 (DCIA), Pub. L. No. 104-134,

§ 31001(k), 110 Stat. 1321-365. The DCIA in particular

sets forth a comprehensive scheme addressing the collection of delinquent non-tax debts, including provisions

addressing notice to the person owing the debt, dispute

resolution, and the reporting of information to consumer reporting agencies. See 31 U.S.C. 3711(e) and

(g). The court of appeals’ construction of FCRA could

expose the United States to substantial liability for conduct related to satisfying those statutory directives.

“A waiver of sovereign immunity [in FCRA] would

thus have a significant impact on the public fisc.” Robinson, 140 S. Ct. at 1442 (Thomas, J., dissenting from

the denial of certiorari). And “because ‘the allocation of

scarce resources among competing needs and interests

lies at the heart of the political process,’ ” the “question

whether sovereign immunity has been waived [in

FCRA] is one of critical importance” to our “democratic

republic.” Id. at 1441 (quoting Alden, 527 U. S. at 751).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

MARK B. STERN

SARAH CARROLL

DAVID L. PETERS

Attorneys

MARCH 2023

APPENDIX

TABLE OF CONTENTS

Page

Appendix A

— Court of appeals opinion

(Aug. 24, 2022) ....................................... 1a

Appendix B — District court memorandum

(May 4, 2021) ........................................ 35a

Appendix C — Court of appeals order denying

rehearing (Nov. 3, 2022) ..................... 49a

Appendix D — Statutory provisions:

15 U.S.C. 1681(b) (1970) ................................................. 51a

15 U.S.C. 1681a(a), (b), (c), (f ) (1970) ............................ 51a

15 U.S.C. 1681n (1970) .................................................... 52a

15 U.S.C. 1681o (1970) .................................................... 52a

15 U.S.C. 1681p (1970) .................................................... 53a

15 U.S.C. 1681q (1970) .................................................... 53a

15 U.S.C. 1681s(a) (1970) ................................................ 54a

15 U.S.C. 1681(b) (1994) ................................................. 55a

15 U.S.C. 1681a(a), (b), (c), (f )

(1994 & Supp. II 1996) ................................................ 55a

15 U.S.C. 1681n (Supp. II 1996) ..................................... 56a

15 U.S.C. 1681o (Supp. II 1996) ..................................... 57a

15 U.S.C. 1681p (1994) .................................................... 58a

15 U.S.C. 1681q (Supp. II 1996) ..................................... 59a

15 U.S.C. 1681s(a), (c) (1994 & Supp. II 1996) ............. 59a

15 U.S.C. 1681s-2(b), (c), (d) (Supp. II 1996) ................ 64a

15 U.S.C. 1681u(i) (Supp. II 1996) ................................. 66a

15 U.S.C. 1681(b) ............................................................. 66a

15 U.S.C. 1681a(a), (b), (c), (f ) ........................................ 67a

15 U.S.C. 1681n................................................................ 68a

15 U.S.C. 1681o ................................................................ 69a

15 U.S.C. 1681p................................................................ 70a

15 U.S.C. 1681q................................................................ 70a

15 U.S.C. 1681s(a), (c) ..................................................... 71a

15 U.S.C. 1681s-2(b), (c), (d) ........................................... 76a

15 U.S.C. 1681(u)( j) ......................................................... 79a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-2149

REGINALD KIRTZ, APPELLANT

TRANS UNION LLC; PENNSYLVANIA HIGHER

EDUCATION ASSISTANCE AGENCY, DOING BUSINESS

AMERICAN EDUCATION SERVICES ;

UNITED STATES DEPARTMENT OF AGRICULTURE

RURAL DEVELOPMENT RURAL HOUSING SERVICE

Argued: May 24, 2022

Filed: Aug. 24, 2022

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

OPINION OF THE COURT

Before:

KRAUSE, BIBAS, and PHIPPS, Circuit Judges

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 Agricul(1a)

ture (“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 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.

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. 104-208, § 2413, 110 Stat. 3009, 3009447 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).

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

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

answers to Kirtz’s 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 jurisdiction under 28 U.S.C. § 1291. We review

to ensure the accuracy of the information contained within credit

reports under §§ 1681e(b), 1681i(a)(1)(A), and 1681i(a)(5).

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.

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.

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 statu-

tory text, Sossamon v. Texas, 563 U.S. 277, 284 (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.

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, 78081 (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 Con-

gress’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-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 carveouts.

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).

10a

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 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 be a “person” for purposes of the

FCRA’s substantive requirements; 5 rather, they draw a

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.

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

11a

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.

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

Daniel. Compare Bormes, 759 F.3d at 795, with Robinson, 917 F.3d

at 806, and Daniel, 891 F.3d at 773.

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).

12a

“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 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

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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.

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

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.

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.

14a

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

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,

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 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.

15a

authorize suits against all “persons,” including the

United States.

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 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 as-

16a

sistance 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.

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).

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 ex-

17a

clude 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 not discussed in the floor debates, could not be subject to the FCRA’s substantive

requirements, which it clearly is.

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 par10

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.

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.

18a

ticular 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 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

19a

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 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

20a

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 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.

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. . . . ”

21a

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 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 defend-

22a

ant”), 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.

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 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 en-

23a

tity.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 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

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.

24a

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” 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-

25a

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.

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 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

26a

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

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

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.

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,

27a

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

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 the Act’s purposes by depriving municipalities of the right

to complain and petition).

28a

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 804; Daniel, 891 F.3d at 77576. 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”).

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

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.

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 statutorily16

29a

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 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

defined term “person” in its civil liability provision.

§ 1681a(b), c(g)(1).

See 15 U.S.C.

30a

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 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.”

31a

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 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.

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,

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.

32a

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 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

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.

33a

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 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-2of the FCRA, these duties are triggered

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.”.

34a

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 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.

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 20-5231

REGINALD KIRTZ, PLAINTIFF

TRANS UNION LLC, ET AL., DEFENDANTS

Filed:

May 4, 2021

MEMORANDUM

GOLDBERG, J.

Plaintiff Reginald Kirtz has sued multiple Defendants alleging violations of the Fair Credit Reporting

Act. One such Defendant, the United States Department of Agriculture Rural Development Rural Housing

Service, maintains that it is immune from suit and has

filed a Motion to Dismiss pursuant to Federal Rule of

Civil Procedure 12(b). For the following reasons, I will

grant this Motion.

FACTUAL AND PROCEDURAL BACKGROUND

The Complaint sets forth the following facts: 1

In considering a facial challenge to jurisdiction under Federal

Rule of Civil Procedure 12(b), I must accept all factual allegations

in the complaint as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any rea1

36a

Plaintiff maintained accounts with Defendants,

Pennsylvania Higher Education Assistance Agency

d/b/a American Education Services (“AES”) and United

States Department of Agriculture Rural Development

Rural Housing Service (“USDA”). On or about July

15, 2016, Plaintiff ’s AES account was closed with a balance of zero and, on or about June 7, 2018, Plaintiff ’s

USDA account was closed with a balance of zero.

Plaintiff ’s credit report from Defendant Trans Union,

dated October 10, 2018, showed both accounts closed

with a zero balance on or about these dates. (Am.

Compl. ¶¶ 10-12.)

Despite the accounts showing a zero balance, both

AES and USDA continued to report the status of Plaintiff ’s payment history (“pay status”) as “Account 120

Days Past Due Date” as of the October 10 Trans Union

Report. An account that is listed as closed with a balance of zero could not simultaneously be past due, thus,

according to Plaintiff, the reported pay statuses were

false on their face. Plaintiff asserts that this status

misled the algorithms used to determine Plaintiff ’s

credit score by making it appear Plaintiff was still late

on accounts that were closed, lowering Plaintiff ’s credit

score and damaging Plaintiff ’s creditworthiness. (Am.

Compl. ¶¶ 10-12.)

Plaintiff sent a letter to Trans Union disputing the

inaccurate pay statuses on both the AES and USDA accounts. According to the Complaint, Trans Union did

not undertake a good faith investigation into the disputed pay statuses, which would have uncovered the insonable reading, the plaintiff may be entitled to relief. Atiyeh v.

Nat’l Fire Ins. Co. of Hartford, 742 F. Supp. 2d 591, 596 (E.D. Pa.

2010).

37a

accuracy. Plaintiff alleges that Trans Union transmitted the dispute to AES and USDA, neither of which undertook any good faith investigation to uncover and corrected the inaccurate pay statuses. Both AES and

USDA continue to erroneously report an overdue pay

status, and Trans Union continues to incorporate these

statuses in Plaintiff ’s credit report.

(Am. Compl.

¶¶ 16, 18, 20-21.)

Plaintiff filed this action on October 20, 2020, alleging

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

against all three Defendants. Specifically, the Amended

Complaint sets forth both willful and negligent violations of section 1681s-2(b) against the USDA. The

USDA filed the present Motion to Dismiss for Lack of

Subject Matter Jurisdiction on January 7, 2021, and

Plaintiff responded on January 26, 2021.

II.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(b)(1),

a party may seek dismissal of a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A

motion pursuant to Rule 12(b)(1) challenges the power

of the court to hear the case. Petruska v. Gannon

Univ., 462 F.3d 294, 302 (3d Cir. 2006). A challenge to

jurisdiction may be either facial or factual. Gould

Electrs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.

2000) (citing Mortensen v. First Fed. Sav. & Loan Ass’n,

549 F.2d 884, 891 (3d Cir. 1977)). In a facial challenge,

the court will limit evaluation to only the allegations in

the pleadings and assume the truthfulness of the complaint. Mortensen, 549 F.2d at 891. A factual attack,

however, offers no such deference to the plaintiff ’s allegations and the court may weigh evidence outside of the

38a

facts in the pleadings to determine whether jurisdiction

exists. Id.

III. DISCUSSION

The USDA’s challenge to subject matter jurisdiction

here is facial and asserts that the Court lacks jurisdiction over this case pursuant to the doctrine of sovereign

immunity. The USDA contends that the FCRA contains no waiver of immunity that would allow Plaintiff to

bring suit against it. Plaintiff responds that the FCRA

allows civil action for damages against “[a]ny person”

who negligently or willfully violates the substantive provisions, and the Act defines “person” to include “government or governmental subdivision or agency” thus

providing a waiver of sovereign immunity.

Under the doctrine of sovereign immunity, it is well

established that the United States is protected from suit

in federal court unless Congress has waived such immunity. U.S. v. Bein, 214 F.3d 408, 412 (3d Cir. 2000)

(citing United States v. Mitchell, 463 U.S. 206, 212

(1983)). A waiver of the government’s immunity “must

be unequivocally expressed in statutory text and will not

be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citation omitted). Even when a waiver is unequivocally

expressed, the scope of that waiver must be strictly construed in favor of the government, settling any ambiguity in favor of immunity. United States v. Williams, 514

U.S. 527, 531 (1995). Ambiguity exists when there is a

“plausible” reading of the statute that does not impose

“monetary liability on the Government.”

United

States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992).

Without such unambiguous waiver, the court lacks subject matter jurisdiction over the case. Bein, 214 F.3d

at 412.

39a

The question before me is whether the FCRA contains an express waiver of sovereign immunity for a private right of action2 alleging a violation of section 1681s2(b). This section imposes a duty on a person, who furnishes information to a consumer reporting agency

(“CRA”) and who receives notice from a CRA of a consumer dispute regarding the accuracy of such information, to conduct an investigation and correct information found to be inaccurate or incomplete. 15 U.S.C.

§ 1681s-2(b). Section 1681n(a) authorizes a private

right of action for actual, statutory, and punitive damages against “[a]ny person” who willfully fails to comply

with the substantive requirements of the Act, including

section 1681s-2(b). 15 U.S.C. § 1681n(a). Additionally,

section 1681o(a) authorizes a private right of action for

actual damages against “[a]ny person” who negligently

fails to comply with the substantive requirements of the

Act, including section 1681s-2(b). 15 U.S.C. § 1681o(a).

Other than authorizing a private right of action, the

FCRA also subjects “[a]ny person who knowingly and

willfully obtains information on a consumer from a consumer reporting agency under false pretenses” to a

criminal fine and or imprisonment. 15 U.S.C. § 1681q.

Finally, the FCRA authorizes the Federal Trade Commission, the Consumer Financial Protection Bureau,

and state governments to commence investigations and

enforcement actions against “person[s]” who violate

the substantive provisions of the FCRA. 15 U.S.C.

§ 1681s. The FCRA defines “person” as “any individual, partnership, corporation, trust, estate, cooperative,

A private right of action is “the right of an individual to bring

suit to remedy or prevent an injury that results from another

party’s actual or threatened violation of a legal requirement.”

Wisniewski v. Rodale, Inc., 510 F.3d 294, 297 (3d Cir. 2007).

40a

association, government or governmental subdivision

or agency, or other entity.” 15 U.S.C. § 1681a(b) (emphasis added).

Although the United States Court of Appeals for the

Third Circuit has not ruled on whether the FCRA contains a waiver of sovereign immunity, three other Circuit Courts have examined this issue. Compare Robinson v. U.S. Dep’t of Educ., 917 F.3d 799, 806 (4th Cir.

2019) (holding that the FCRA did not unequivocally

waive the DOE’s sovereign immunity), cert. denied, 140

S. Ct. 1440,3 and Daniel v. Nat’l Park Serv., 891 F.3d

762, 769 (9th Cir. 2018) (holding that the FCRA is ambiguous thus did not unequivocally waive sovereign immunity); with Bormes v. United States, 759 F.3d 793,

795 (7th Cir. 2014) (holding the FCRA waived sovereign

immunity).

As noted above, in Bormes, the Seventh Circuit found

that the FCRA permits suit against a federal government entity. Bormes, 759 F.3d at 795. There, the

Court reasoned that the statute authorizes suit against

“any person,” which includes “any

. . .

government.” Because “[t]he United States is a government,”

the Bormes court concluded that Congress expressly

waived immunity. Id. The Court explained that the

government conceded it was a “person” under the substantive requirements of the FCRA, thus its argument

that it was not a “person” for the liability sections was

not supported by the statutory language. Id. Additionally, the Court noted that exposing federal employThe Supreme Court recently denied certiorari in this case, with

Justice Thomas dissenting and noting that “this important question has divided the Courts of Appeals.” Robinson, 140 S. Ct. at

1440 (2020) (Thomas, J. dissenting).

41a

ees to criminal liability was “not so outlandish that we

should read § 1681a(b) to mean something other than

what it says.” Id. at 796.

The Fourth and Ninth Circuits, however, have

reached the opposite conclusion and found that the

FCRA does not unequivocally waive sovereign immunity. Robinson v. U.S. Dep’t of Educ., 917 F.3d 799, 806

(4th Cir. 2019), cert. denied, 140 S. Ct. 1440; Daniel v.

Nat’l Park Serv., 891 F.3d 762, 769 (9th Cir. 2018). In

Daniel, the Ninth Circuit reasoned that reading “person” to include the United States and its agencies leads

to implausible results such as imposing excessive punitive damages, federal and state enforcement liability,

and criminal liability against the United States. 891

F.3d at 770. The Court explained that in the rare case

where Congress did authorize punitive damages against

the government and/or civil enforcement by one government agency on another government agency, Congress

has been clear in waiving immunity. Id. at 771 n. 5 (citing 42 U.S. § 6961). Additionally, the Court reasoned

that the legislative history supports the finding that

Congress did not intend to waive sovereign immunity in

the FCRA. Id. at. 774-75. The Court noted that because the original FCRA authorized criminal but not

civil liability against a “person,” if “person” is read to

include the United States, then Congress originally intended to waive immunity only for the purpose of criminal prosecution, which is “patently absurd.” Daniel,

891 F.3d at 775 (quoting Al-Haramain Islamic Found.,

Inc. v. Obama, 705 F.3d 845, 854 (9th Cir. 2012)). 4

When the FCRA was eventually amended to subject “person[s]” to civil liability, there was no mention of potential costs to

the government and the Congressional Budget Office analysis “did

42a

The Fourth Circuit followed similar reasoning in

Robinson, stressing that “[t]here is a ‘longstanding presumption that “person” does not include the sovereign.’ ”

917 F.3d at 802 (quoting Vt. Agency of Nat. Res. v.

United States ex rel. Stevens, 529 U.S. 765, 780 (2000)).

The Court concluded that implausible results would be

reached by reading “person” in the FCRA to include the

United States. The Fourth Circuit also noted that the

fact that the presumption that there is no waiver in the

FCRA is bolstered by the fact that established waivers

are generally more explicit. Id. at 803-06.

Keeping in mind that “[s]tatutory construction is a

holistic endeavor,” Koons Buick Pontiac GMC, Inc. v.

Nigh, 543 U.S. 50, 60 (2004), for several reasons, I find

the reasoning of the Fourth and Ninth Circuits convincing.

First, I agree that reading “person” to include the

United States and its agencies throughout the FCRA

would lead to illogic results. Such a reading could subject the United States to criminal penalties. See 15

U.S.C. § 1681q. In Bormes, the Court brushed past

this issue, reasoning that it “is not so outlandish” that

Congress authorized criminal penalties against federal

employees. Bormes, 759 F.3d at 796. But as the

Ninth Circuit noted in Daniel, the FCRA does not distinguish employees from the government itself and,

thus, reading the United States into “person” subjects

the government itself to criminal liability, which is untenable. 891 F.3d at 770; see also Conboy v. U.S. Small

not anticipate any costs from defending the federal government

against private suits.” Daniel, 891 F.3d at 775-76 (citing H.R.

Rep. No. 103-486, at 62-63 (1994); S. Rep. No. 103-209, at 32-34

(1994); H.R. Rep. No. 102-692, at 45-46 (1992)).

43a

Bus. Admin., No. 3:18-224, 2020 WL 1244352, at *8

(M.D. Pa. March 16, 2020) (citing Daniel with approval

and noting that interpreting “that the United States is a

‘person’ for purposes of the FCRA and therefore can be

subject to the FCRA’s criminal penalties” is a “dubious

proposition”).

The FCRA also authorizes state and federal enforcement against “any person” who violates the substantive

requirements of the Act, 15 U.S.C. § 1681s, but is silent

about a lawsuit against a government entity. In the

rare case where Congress does permit the use of such

an enforcement scheme against a governmental entity,

the applicable statute is clear and explicit in waiving sovereign immunity. See Daniel, 891 F.3d at 771 n.5 (citing. 42 U.S.C. § 6961). For example, in the Resource

Conservation and Recovery Act (“RCRA”), Congress

authorized the Environmental Protection Agency to enforce compliance and “expressly waives any immunity

otherwise applicable to the United States. . . . ”

42 U.S.C. § 6961. Notably, the definition of “person” in

the RCRA also explicitly includes “each department,

agency, and instrumentality of the United States.” 42

U.S.C. § 6903.

This language is clearer than the

FCRA’s broad definition of “any government” and the

subsequent express waiver in the enforcement provision

of the RCRA reflects that Congress is exceptionally

clear when it intends to waive sovereign immunity.

Conversely, the FCRA contains no similar express

waiver of immunity suggesting that Congress did not intend to allow “state and federal enforcement” actions

against the Government.

Second, as the Fourth and Ninth Circuits noted,

reading the FCRA’s definition of “person” as waiving

44a

sovereign immunity would expose the Government to

punitive damages. See 15 U.S.C. § 1681n(A)(2) (authorizing punitive damages against “any person” for a

willful violation of the Act). “There is a ‘presumption

against the imposition of punitive damages on governmental entities.” Daniel, 891 F.3d at 771 (quoting Vt.

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

U.S. 765, 785 (2000)). Similar to criminal and civil enforcement provisions, Congress uses clear and unambiguous language when it intends to waive immunity for punitive damages. See Daniel, 891 F.3d at 771. 5

Third, the “longstanding interpretive presumption

that ‘person’ does not include the sovereign” should be

followed absent an “affirmative showing of statutory intent to the contrary.” Vt. Agency of Nat. Res., 529 U.S.

at 780-81 (citing United States. v. Cooper Corp., 312

U.S. 600, 604 (1941); Int’l Primate Prot. League v.

Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 83 (1991)).

Even when a term is defined in the statute, it may be

appropriate to “consider the ordinary meaning . . .

particularly when there is a dissonance between that ordinary meaning and the reach of the definition.” Bond

v. United States, 572 U.S. 844, 861 (2014). The implausible results of imposing criminal liability, civil enforcement actions, and punitive damages against the United

States supports the presumption that “person” is not

meant to include the sovereign in the FCRA.

Fourth, the express waiver of sovereign immunity in

another section of the FCRA demonstrates that Congress did not intend to waive such immunity in the liaSection 1681u of the FCRA discussed below reflects this express language within the FCRA itself. See 15 U.S.C. §. 1681u.

45a

bility sections at issue here. Section 1681u prohibits

certain disclosures on credit reports “that the Federal

Bureau of Investigation has sought or obtained access

to [certain] information or records. . . . ” 15 U.S.C

§ 1681u(d)(1)(A). Section 1681u(j) specifically authorizes statutory, actual, and punitive damages against

“[a]ny agency or department of the United States” for

violating the substantive provisions of section 1681u.

15 U.S.C. § 1681u( j). This section demonstrates that

Congress uses particular and explicit language in waiving immunity. While the substantive provisions of section 1681u deal with disclosures by government agencies

and would not apply to other actors, the language of the

liability section is nonetheless instructive as to how Congress unambiguously waives immunity. This section

thus “clouds whether the remedial provisions” relied

upon in the present case “extend ‘unambiguously’ to

monetary claims against the United States.” Daniel,

891 F.3d 762, 771 (9th Cir. 2018) (citing Ordonez v.

United States, 680 F.3d 1135, 1138 (9th Cir. 2012)).

Fifth, a review of other express waivers of sovereign

immunity reveals that the definition in the FCRA does

not meet the level of explicitness that Congress ordinarily uses to waive immunity. For example, the Little

Tucker Act provides that “[t]he district courts shall have

original jurisdiction . . . of . . . [a]ny other civil

action or claim against the United States.” 28 U.S.C.

§ 1346(a) (emphasis added). Additionally, the Federal

Tort Claims Act explicitly states “[t]he United States

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

the same extent as a private individual.

. . .

”

12 U.S.C. § 2674 (emphasis added). Not only do these

waivers expressly mention “the United States,” the

waiver is found in liability sections and is not deduced

46a

from broad language in the definition section. A comparison of the language and structure of the FCRA to

these waivers, as well as many others,6 makes clear that

FCRA is ambiguous and does not show Congress’s unequivocal expression of an intent to waive immunity for

civil suits.

Examination of the Equal Credit Opportunity Act

(“ECOA”), 15 U.S.C. § 1691, which has similar language

to the FCRA, is also instructive. See also Ordille v.

U.S., 216 F. App’x 160, 164 (3d Cir. 2007). The ECOA

authorizes a private right of action against any “creditor” who violates the Act’s substantive provisions and

defines “creditor” to include “any person,” which includes a “government or governmental subdivision or

agency. . . . ” § 1691a(e), (f ). While this language is

almost identical to the FCRA, the two statutes contain

key distinctions that necessitate different findings on

the issue of sovereign immunity. First, unlike the

FCRA, the ECOA does not impose criminal liability,

meaning there is no implausible result of subjecting the

government to criminal penalties by reading “creditor”

to include the United States throughout the statute.

Second, while the ECOA authorizes punitive damages,

that authorization contains an express exemption for “a

government or governmental subdivision or agency,”

which clearly evidences Congress’s intent to subject the

government to civil suits for actual damages. See Stel-

“Indeed the words ‘United States’ appear in a great many waivers.” Robinson v. U.S. Dep’t of Educ., 917 F.3d 799, 803 (4th

Cir. 2019) (first citing 12 U.S.C. § 3417(a); then citing 42 U.S.C.

§ 9620(a)(1); then citing 26 U.S.C. § 7433(a); and then citing 46 U.S.C.

§ 30903(a)).

47a

lick v. U.S. Dep’t of Educ., No. 11-cv-0730, 2013 WL

673856, at *3-4 (D. Minn. Feb. 25, 2013).

Finally, although the Third Circuit has not explicitly

ruled on whether the FCRA contains a waiver of sovereign immunity, it has shown a tendency to strictly interpret other waivers of immunity. See, e.g., Gentile v.

Sec. & Exch. Comm’n, 947 F.3d 311, 315-317 (3d Cir.

2020) (holding that a narrow construction of the Administrative Procedure Act’s waiver of sovereign immunity

does not extend to agency decisions to initiate investigation); United States v. Craig, 649 F.3d 509, 513 (3d Cir.

2012) (construing the Civil Asset Forfeiture Reform Act

and Federal Rule of Civil Procedure 41(g) narrowly as

to not waive immunity for the payment of monetary interest on returned property); Cudjoe ex rel. Cudjoe v.

Dep’t of Veterans Affairs, 426 F.3d 241, 248 (3d Cir.

2005) (reading the waiver in the Toxic Substance Control Act narrowly as to not extend to private suits for

money damages); Antol v. Perry, 82 F.3d 1291, 1297-98

(3d Cir. 1996) (declining to incorporate the waiver in the

Rehabilitation Act into the Vietnam Era Veterans’ Readjustment Assistance Act simply because the latter

mentions the former).

In short, the mere fact that a statute can be plausibly

read to contain a waiver of sovereign immunity is insufficient. A waiver must be unambiguous. See Cudjoe ex

rel. Cudjoe v. Dep’t of Veterans Affairs, 462 F.3d 241,

247 (3d Cir. 2005) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992) (“Language subject to

varying interpretations will not be construed as a

waiver.”)). The FCRA does not contain such an unambiguous waiver of sovereign immunity. Therefore, I

conclude that the USDA is immune from suit, and I lack

48a

jurisdiction over the claims against it. Accordingly, I

will grant the USDA’s Motion to Dismiss for Lack of

Subject Matter Jurisdiction.

49a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-2149

REGINALD KIRTZ, APPELLANT

TRANS UNION LLC; PENNSYLVANIA HIGHER

EDUCATION ASSISTANCE AGENCY, DOING BUSINESS

AMERICAN EDUCATION SERVICES ;

UNITED STATES DEPARTMENT OF AGRICULTURE

RURAL DEVELOPMENT RURAL HOUSING SERVICE

Filed:

Nov. 3, 2022

E.D. Pa. No. 2:20-cv-05231

SUR PETITION FOR REHEARING

Present: MCKEE*, JORDAN, KRAUSE, RESTREPO, BIBAS , PORTER, MATEY, and PHIPPS , Circuit Judges

The petition for rehearing filed by Appellee United

States Department of Agriculture Rural Development

Rural Housing Service in the above-entitled case having

been submitted to the judges who participated in the decision of this Court and to all the other available circuit

At the time the petition for rehearing was submitted to the en

banc panel, Judge McKee was an active judge of the Court. 3rd

Cir. I.O.P. 9.5.2.

50a

judges of the circuit in regular active service, and no

judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in

regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is

denied.

BY THE COURT,

/s/ CHERYL ANN KRAUSE

CHERYL ANN KRAUSE

Circuit Judge

Dated: Nov. 3, 2022

Tmm/cc: Deborah Mayham

Abigail M. Green, Esq.

Daniel V. Johns, Esq.

Barry M. Klayman, Esq.

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APPENDIX D

15 U.S.C. 1681(b) (1970) provides:

Congressional findings and statement of purpose.

(b) It is the purpose of this subchapter to require

that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the

consumer, with regard to the confidentiality, accuracy,

relevancy, and proper utilization of such information in

accordance with the requirements of this subchapter.

15 U.S.C. 1681a (1970) provides in pertinent part:

Definitions; rules of construction.

(a) Definitions and rules of construction set forth in

this section are applicable for the purposes of this subchapter.

(b) The term “person” means any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or

agency, or other entity.

* * * * *

(f ) The term “consumer reporting agency” means

any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in

part in the practice of assembling or evaluating consumer credit information or other information on con-

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sumers for the purpose of furnishing consumer reports

to third parties, and which uses any means or facility of

interstate commerce for the purpose of preparing or furnishing consumer reports.

15 U.S.C. 1681n (1970) provides:

Civil liability for willful noncompliance.

Any consumer reporting agency or user of information which willfully fails to comply with any requirement imposed under this subchapter with respect to any

consumer is liable to that consumer in an amount equal

to the sum of—

(1) any actual damages sustained by the consumer as a result of the failure;

(2) such amount of punitive damages as the court

may allow; and

(3) in the case of any successful action to enforce

any liability under this section, the costs of the action

together with reasonable attorney’s fees as determined by the court.

15 U.S.C. 1681o (1970) provides:

Civil liability for negligent noncompliance.

Any consumer reporting agency or user of information which is negligent in failing to comply with any

requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an

amount equal to the sum of—

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(1) any actual damages sustained by the consumer as a result of the failure;

(2) in the case of any successful action to enforce

any liability under this section, the costs of the action

together with reasonable attorney’s fees as determined by the court.

15 U.S.C. 1681p (1970) provides:

Jurisdiction of courts; limitation of actions.

An action to enforce any liability created under this

subchapter may be brought in any appropriate United

States district court without regard to the amount in

controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises, except that where a defendant has materially

and willfully misrepresented any information required

under this subchapter to be disclosed to an individual

and the information so misrepresented is material to the

establishment of the defendant’s liability to that individual under this subchapter, the action may be brought at

any time within two years after discovery by the individual of the misrepresentation.

15 U.S.C. 1681q (1970) provides:

Obtaining information under false pretenses.

Any person who knowingly and willfully obtains information on a consumer from a consumer reporting

agency under false pretenses shall be fined not more

than $5,000 or imprisoned not more than one year, or

both.

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15 U.S.C. 1681s(a) (1970) provides:

Administrative enforcement.

(a)

Federal Trade Commission; powers.

Compliance with the requirements imposed under

this subchapter shall be enforced under the Federal

Trade Commission Act by the Federal Trade Commission with respect to consumer reporting agencies and all

other persons subject thereto, except to the extent that

enforcement of the requirements imposed under this

subchapter is specifically committed to some other government agency under subsection (b) hereof. For the

purpose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade

Commission Act, a violation of any requirement or prohibition imposed under this subchapter shall constitute

an unfair or deceptive act or practice in commerce in violation of section 45(a) of this title and shall be subject

to enforcement by the Federal Trade Commission under

section 45(b) of this title with respect to any consumer

reporting agency or person subject to enforcement by

the Federal Trade Commission pursuant to this subsection, irrespective of whether that person is engaged in

commerce or meets any other jurisdictional tests in the

Federal Trade Commission Act. The Federal Trade

Commission shall have such procedural, investigative,

and enforcement powers, including the power to issue

procedural rules in enforcing compliance with the requirements imposed under this subchapter and to require the filing of reports, the production of documents,

and the appearance of witnesses as though the applicable terms and conditions of the Federal Trade Commission Act were part of this subchapter. Any person violating any of the provisions of this subchapter shall be

55a

subject to the penalties and entitled to the privileges and

immunities provided in the Federal Trade Commission

Act as though the applicable terms and provisions

thereof were part of this subchapter.

15 U.S.C. 1681(b) (1994) provides:

Congressional findings and statement of purpose

(b)

Reasonable procedures

It is the purpose of this subchapter to require that

consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer

credit, personnel, insurance, and other information in a

manner which is fair and equitable to the consumer, with

regard to the confidentiality, accuracy, relevancy, and

proper utilization of such information in accordance with

the requirements of this subchapter.

9. 15 U.S.C. 1681a (1994 & Supp. II 1996) provides in

pertinent part:

Definitions; rules of construction

(a) Definitions and rules of construction forth in this

section are applicable for the purposes of this subchapter.

(b) The term “person” means any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.

* * * * *

56a

(f ) The term “consumer reporting agency” means

any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in

part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports

to third parties, and which uses any means or facility of

interstate commerce for the purpose of preparing or furnishing consumer reports.

* * * * *

10. 15 U.S.C. 1681n (Supp. II 1996) provides:

Civil liability for willful noncompliance

(a)

In general

Any person who willfully fails to comply with any requirement imposed under this subchapter with respect

to any consumer is liable to that consumer in an amount

equal to the sum of—

(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less

than $100 and not more than $1,000; or

(B) in the case of liability of a natural person for

obtaining a consumer report under false pretenses or

knowingly without a permissible purpose, actual

damages sustained by the consumer as a result of the

failure or $1,000, whichever is greater;

(2) such amount of punitive damages as the court

may allow; and

(3) in the case of any successful action to enforce

any liability under this section, the costs of the action

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together with reasonable attorney’s fees as determined by the court.

(b)

Civil liability for knowing noncompliance

Any person who obtains a consumer repor

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