Amicus Curiae Brief — Department of Agriculture Rural Development Rural Housing Service, Petitioner v. Reginald Kirtz

No. 22-846

IN THE

Supreme Court of the United States

UNITED STATES DEPARTMENT OF AGRICULTURE

RURAL DEVELOPMENT RURAL HOUSING SERVICE,

Petitioner,

v.

REGINALD KIRTZ,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 2, 2023

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

1

ARGUMENT .........................................................

4

I.

The Decision Whether to Waive the

Federal Government’s Sovereign

Immunity Belongs to Congress ............

4

This Court Should Decline the

USDA’s Invitation to Arrogate

Legislative Authority by Imposing a

Post-Hoc “Magic Words” Requirement

on the Manner in Which Congress

May Waive Sovereign Immunity .........

8

CONCLUSION .....................................................

16

II.

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ardestani v. INS,

502 U.S. 129 (1991) ................................

7

Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985) ................................ 10, 11

Bell v. Hood,

327 U.S. 678 (1946) ................................

5

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ............................

7

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ................................

7

Decatur v. Paulding,

39 U.S. 497 (1840) ..................................

4

Dellmuth v. Muth,

491 U.S. 223 (1989) ................................ 3, 8, 14

Dolan v. U.S. Postal Serv.,

546 U.S. 481 (2006) ................................

1

Egbert v. Boule,

142 S. Ct. 1793 (2022) ............................

2

Emps. of the Dep’t of Pub. Health &

Welfare v. Dep’t of Pub. Health &

Welfare,

411 U.S. 279 (1973) ................................

9, 10

FAA v. Cooper,

566 U.S. 284 (2012) ................................

2, 6

iii

TABLE OF AUTHORITIES -- cont’d

Page(s)

Fin. Oversight & Mgmt. Bd. for P.R. v.

Centro de Periodismo Investigativo, Inc.,

143 S. Ct. 1176 (2023) ............................

8

Great N. Life Ins. Co. v. Read,

322 U.S. 47 (1944) ..................................

4

Gomez-Perez v. Potter,

553 U.S. 474 (2008) ................................

1

Health & Hosp. Corp. of Marion Cnty. v.

Talevski,

143 S. Ct. 1444 (2023) ............................

8, 15

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ............................ 3, 14, 15

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000) .................................. 11, 12

Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,

523 U.S. 751 (1998) ................................

3

Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Coughlin,

143 S. Ct. 1689 (2023) ............................

6

Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682 (1949) ................................

1, 4

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................

5

McQuiggin v. Perkins,

569 U.S. 383 (2013) ................................

14

iv

TABLE OF AUTHORITIES -- cont’d

Page(s)

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) ................................

3

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) ................................

7

Nev. Dep’t of Hum. Res. v. Hibbs,

538 U.S. 721 (2003) ................................ 11, 12

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) ............................

15

Parden v. Terminal Ry. of Ala. State Docks

Dep’t,

377 U.S. 184 (1964) ................................

9

Parker Drilling Mgmt. Servs., Ltd. v.

Newton,

139 S. Ct. 1881 (2019) ............................

14

Richlin Sec. Serv. Co. v. Chertoff,

553 U.S. 571 (2008) ................................

7

Schweiker v. Chilicky,

487 U.S. 412 (1988) ................................

2

Sebelius v. Cloer,

569 U.S. 369 (2013) ................................

7

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ..................................

13

The Siren,

74 U.S. 152 (1868) ..................................

4

v

TABLE OF AUTHORITIES -- cont’d

Page(s)

Smith v. United States,

507 U.S. 197 (1993) ................................

2

Thacker v. Tenn. Valley Auth.,

139 S. Ct. 1435 (2019) ............................

4

United States v. Aetna Cas. &

Sur. Co.,

338 U.S. 366 (1949) ................................

15

United States v. Idaho ex rel. Dir., Idaho

Dep’t of Water Res.,

508 U.S. 1 (1993) ....................................

2

United States v. Nordic Vill., Inc.,

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

7

United States v. White Mountain Apache

Tribe,

537 U.S. 465 (2003) ................................

1

United States v. Williams,

514 U.S. 527 (1995) ................................

15

U.S. Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) ................................

7

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................ 14, 15

Statutes

Consumer Credit Reporting Reform Act of

1996, Pub. L. No. 104-208, Subtitle D,

110 Stat. 3009-426 ................................

11

vi

TABLE OF AUTHORITIES -- cont’d

Page(s)

Fair Credit Reporting Act, Pub. L. No. 91508, Title VI, 84 Stat. 1114 (1970) .......

11

5 U.S.C. § 552a .........................................

13

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

3, 11

15 U.S.C. § 1681n(a).................................

2

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

2

Other Authorities

Harold J. Krent, Reconceptualizing

Sovereign Immunity,

45 Vand. L. Rev. 1529 (1992)................

6

John Copeland Nagle, Waiving Sovereign

Immunity in an Age of Clear Statement

Rules,

1995 Wis. L. Rev. 771 (1995) ................

6, 14

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal

Texts (2012) ...........................................

5

Gregory C. Sisk, Twilight for the Strict

Construction of Waivers of Federal

Sovereign Immunity,

92 N.C. L. Rev. 1245 (2014) ..................

5

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in ensuring meaningful access to the courts,

in accordance with constitutional text and history, and

therefore has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Although the text of the Constitution does not explicitly require federal sovereign immunity, this Court

has consistently concluded that “the strongest reasons

of public policy” counsel against allowing “any plaintiff

who presents a disputed question of property or . . .

right” to “stop[] in its tracks” the “Government as representative of the community as a whole.” Larson v.

Domestic & Foreign Com. Corp., 337 U.S. 682, 704

(1949). The converse of this rule is that the “community as a whole,” through its elected representatives in

Congress, can determine that there are situations in

which it is appropriate for the federal government to

be held accountable in court. See, e.g., Gomez-Perez v.

Potter, 553 U.S. 474, 491 (2008); Dolan v. U.S. Postal

Serv., 546 U.S. 481, 491-92 (2006); United States v.

1 Under Rule 37.6 of the Rules of this Court, amicus states that

no counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amicus or its counsel made a monetary contribution to its

preparation or submission.

2

White Mountain Apache Tribe, 537 U.S. 465, 472

(2003). Because these principles ensure that politically accountable leaders decide when public concerns

should bow to private complaints, this Court’s role is

simple: heed the text of the laws Congress has passed

and allow for waivers of sovereign immunity that are

no broader or narrower than that text dictates.

This Court’s precedents overwhelmingly support

such an approach. Time and again, this Court has explained that “just as ‘we should not take it upon ourselves to extend [a] waiver [of sovereign immunity] beyond that which Congress intended[,] . . . [n]either,

however, should we assume the authority to narrow

the waiver that Congress intended.’” United States v.

Idaho ex rel. Dir., Idaho Dep’t of Water Res., 508 U.S.

1, 7 (1993) (alterations in original) (quoting Smith v.

United States, 507 U.S. 197, 203 (1993)). And because

the decision to waive sovereign immunity involves policy considerations that “Congress is ‘far more competent than the Judiciary’ to weigh,” Egbert v. Boule, 142

S. Ct. 1793, 1803 (2022) (quoting Schweiker v.

Chilicky, 487 U.S. 412, 423 (1988)), this Court has

made clear that judges should not impose their own,

post-hoc requirements on how Congress may accomplish that waiver. Doing so—requiring the statute to

use “magic words,” FAA v. Cooper, 566 U.S. 284, 291

(2012), for example—would undermine the entire basis for vesting the authority to waive sovereign immunity in Congress in the first place.

Yet that is precisely what the United States Department of Agriculture (USDA) asks this Court to do.

It concedes that the Fair Credit Reporting Act (FCRA)

subjects to civil liability any “person” who negligently

or willfully “fail[s] to comply with [the FCRA’s] requirement[s],” 15 U.S.C. §§ 1681n(a), 1681o(a). It also

concedes that the FCRA defines “person” to include

3

“any . . . government or governmental subdivision or

agency,” id. § 1681a(b). But in the face of that “unequivocal declaration” from Congress, Dellmuth v.

Muth, 491 U.S. 223, 232 (1989), it appeals to legislative history to attempt to create ambiguity, and it asserts that “cross-referencing a broad general definition” is insufficient to waive sovereign immunity, Pet’r

Br. 10, creating from whole cloth a rule that the causeof-action provision of a statute on its own must subject

the sovereign to suit.

Adopting such a rule would not only defy this

Court’s precedents, it would also displace Congress’s

judgment, as reflected in the FCRA’s text, that a damages remedy is necessary against the federal government when it violates the FCRA’s substantive provisions. Indeed, many of the USDA’s arguments to this

Court—for example, that construing the FCRA to authorize suit against it would “vastly expand liability

for federal-agency activity already covered by the Privacy Act,” Pet’r Br. 36—are precisely the sort of arguments that would be better presented to Congress,

with its “greater capacity ‘to weigh and accommodate

the competing policy concerns and reliance interests’

involved in the issue,” Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782, 801 (2014) (quoting Kiowa Tribe

of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998)).

In recent years, this Court has been especially skeptical of such arguments, as they risk “arrogating legislative power” and undermining “the Constitution’s

separation of legislative and judicial power.” Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). Those principles apply equally in this case.

4

ARGUMENT

I.

The Decision Whether to Waive the Federal

Government’s Sovereign Immunity Belongs

to Congress.

Since the earliest invocations of the sovereign immunity doctrine, this Court has recognized that only

Congress, as the people’s representative, has the

power to decide whether or not to waive the United

States’ sovereign immunity. In justifying this rule,

this Court has often spoken of the gravity of the decision to allow a private individual to vindicate his or

her own private interests against the entity entrusted

with protection of the greater public, as well as the risk

that allowing such private litigation could divert government resources away from pursuit of the public

welfare. See, e.g., The Siren, 74 U.S. 152, 154 (1868)

(warning that “the public service would be hindered,

and the public safety endangered, if the supreme authority could be subjected to suit at the instance of

every citizen, and consequently controlled in the use

and disposition of the means required for the proper

administration of the government”); Great N. Life Ins.

Co. v. Read, 322 U.S. 47, 53 (1944) (“The principle of

immunity from litigation assures the states and the

nation from unanticipated intervention in the processes of government.”); Larson, 337 U.S. at 704

(“[T]he interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief.” (quoting Decatur v. Paulding, 39

U.S. 497, 516 (1840))). Decisions involving such matters, according to this Court, are squarely within Congress’s “bailiwick,” and thus Congress is “[t]he right

governmental actor” to determine whether “to waive

immunity.” Thacker v. Tenn. Valley Auth., 139 S. Ct.

1435, 1442 (2019).

5

At the same time, this Court has been clear that

the courts should not second-guess Congress’s decision

to waive immunity. After all, while private suits risk

interfering with governmental functions, those risks

must be weighed against the fundamental principle,

dating at least to Marbury v. Madison, 5 U.S. (1

Cranch) 137 (1803), that “[t]he very essence of civil liberty certainly consists in the right of every individual

to claim the protection of the laws, whenever he receives an injury.” Id. at 163. Our constitutional structure manifests a strong interest in permitting individuals to sue the government “where [their] federally

protected rights have been invaded.” Bell v. Hood, 327

U.S. 678, 684 (1946). Thus, “once Congress has acted

to permit the claim of the aggrieved against the sovereign to be pursued in a judicial forum”—having determined that for a particular area of law, any threat of

private litigation disrupting government is outweighed by the need for a remedy—“courts should not

frustrate the legislative promise of relief by reconstructing a broader scope of immunity through a hostile and narrow construction of the statute.” Gregory

C. Sisk, Twilight for the Strict Construction of Waivers

of Federal Sovereign Immunity, 92 N.C. L. Rev. 1245,

1252 (2014). As one preeminent treatise has put it,

“[i]t is one thing to regard government liability as exceptional enough to require clarity of creation as a

matter of presumed legislative intent,” yet it “is quite

something else to presume that a legislature that has

clearly made the determination that government liability is in the interest of justice wants to accompany

that determination with nit-picking technicalities that

would not accompany other causes of action.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 285 (2012).

6

This makes sense not just as a principle of statutory interpretation, but also as a matter of separation

of powers. If the primary constitutional “justification

for sovereign immunity is to allow Congress to determine the appropriate balance between protecting government policymaking and providing remedies to

those injured by government actions,” then “the object

of interpreting statutory waivers of sovereign immunity should be to ascertain and implement the deliberate balance achieved by Congress.” John Copeland

Nagle, Waiving Sovereign Immunity in an Age of Clear

Statement Rules, 1995 Wis. L. Rev. 771, 818 (1995).

This approach is particularly important given the myriad policy considerations and conflicting interests that

go into a congressional waiver of sovereign immunity—interests that Congress, certainly more so than

this Court, is positioned to reconcile. See Harold J.

Krent, Reconceptualizing Sovereign Immunity, 45

Vand. L. Rev. 1529, 1531 (1992) (“The dominant justification for sovereign immunity must be that we trust

Congress, unlike any other entity, to set the rules of

the game.”).

This Court’s sovereign immunity precedents reflect that understanding. As this Court recently explained, to determine whether a statute waives sovereign immunity, this Court “simply” applies “‘traditional’ tools of statutory interpretation” to decide

whether “Congress’s abrogation . . . is ‘clearly discernable’ from the statute itself.” Lac du Flambeau Band

of Lake Superior Chippewa Indians v. Coughlin, 143

S. Ct. 1689, 1696 (2023) (quoting Cooper, 566 U.S. at

291). And if the statute itself is unambiguous, that

ends the matter: this Court has “never required that

Congress use magic words” to effectuate a clear waiver

of sovereign immunity. Cooper, 566 U.S. at 291.

7

Consistent with its insistence on fidelity to statutory text, this Court long ago discarded the rule that

legislative history can create ambiguity in a statute

that plainly waives sovereign immunity. See, e.g.,

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

(1992) (noting that “legislative history has no bearing

on the ambiguity point” in the sovereign immunity inquiry); Milner v. Dep’t of Navy, 562 U.S. 562, 574

(2011) (“Legislative history, for those who take it into

account, is meant to clear up ambiguity, not create

it.”). Focusing on text rather than legislative history

allows people “to rely on the law as written, without

fearing that courts might disregard its plain terms

based on some extratextual consideration.” Bostock v.

Clayton County, 140 S. Ct. 1731, 1749 (2020). That

principle is especially important in the context of sovereign immunity, a background rule designed to protect the interests of the people as a whole and to give

way when Congress determines that allowing suit furthers the public interest.

Accordingly, although this Court typically resolves

unclear statutes in favor of the sovereign, such “‘rules

of thumb’ give way when ‘the words of a statute are

unambiguous.’” Sebelius v. Cloer, 569 U.S. 369, 381

(2013) (quoting Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253-54 (1992)). This Court has only resorted to

the so-called “sovereign immunity canon” when it has

confronted ambiguity in the plain text of a statute.

See, e.g., Richlin Sec. Serv. Co. v. Chertoff, 553 U.S.

571, 589-90 (2008) (declining to apply “sovereign immunity canon” because “there is no ambiguity left for

us to construe”); U.S. Dep’t of Energy v. Ohio, 503 U.S.

607, 626-27 (1992) (invoking sovereign immunity

canon only after traditional tools of statutory interpretation left the Court “with an unanswered question”);

Ardestani v. INS, 502 U.S. 129, 137 (1991) (same).

8

Thus, even though “[t]he standard for finding a congressional abrogation is stringent,” if the “language of

the statute” amounts to an “unequivocal” abrogation,

this Court must respect the statutory text. Fin. Oversight & Mgmt. Bd. for P.R. v. Centro de Periodismo Investigativo, Inc., 143 S. Ct. 1176, 1183 (2023) (quoting

Dellmuth, 491 U.S. at 232).

In sum, this Court’s consistent approach to questions of sovereign immunity has been to examine the

text of the statute and then “implement Congress’s

choices rather than remake them.” Health & Hosp.

Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444,

1454 (2023). That approach reflects this Court’s understanding that Congress, not the Judiciary, gets to

decide when the interest in vindication of individual

rights outweighs the government’s interest in conducting its affairs free from the threat of litigation. As this

Court has recognized, that nuanced decision should be

left in the hands of the people’s representatives.

II. This Court Should Decline the USDA’s

Invitation to Arrogate Legislative Authority

by Imposing a Post-Hoc “Magic Words”

Requirement on the Manner in Which

Congress May Waive Sovereign Immunity.

Running headlong into these precedents, the

USDA, in effect, asks this Court to create a new rule

for how Congress may waive sovereign immunity. It

argues that a waiver of sovereign immunity should

only be considered unambiguous “in the context of a

direct and explicit reference to [the sovereign] in the

relevant cause of action itself.” Pet’r Br. 20. Yet none

of the cases cited by the USDA support that rule, and

to tighten the requirements for waiving sovereign immunity after Congress has already legislated would

subvert Congress’s plan in passing the law and

9

amount to an inappropriate aggrandizement of judicial power.

A. The USDA relies primarily on two cases for its

novel rule, both of which it misconstrues. Fifty years

ago, in Employees of the Department of Public Health

& Welfare v. Department of Public Health & Welfare,

411 U.S. 279 (1973), the Court held that Congress did

not abrogate state sovereign immunity by amending

the definition of “employer” in the Fair Labor Standards Act (FLSA) to include certain state facilities while

leaving in place a preexisting FLSA cause of action

against an “employer.” Id. at 282-83. Although the

“literal language” of the FLSA covered the state defendants, id. at 283, the Court discounted the statute’s

plain text because it “found not a word in the history

of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or

another State to sue the State in the federal courts,”

id. at 285. In reaching this conclusion, the Court limited its engagement with a tricky constitutional question regarding congressional power to waive states’ immunity and avoided overruling a then-relatively recent precedent, Parden v. Terminal Railway of Alabama State Docks Department, 377 U.S. 184 (1964).

Seemingly recognizing that Employees’ reliance on

legislative history to create ambiguity reflects an outmoded method of statutory interpretation, the USDA

argues that the Court merely turned to legislative history in Employees for support for its independent conclusion that the FLSA’s text was unclear. See Pet’r Br.

27. But that argument simply cannot be squared with

this Court’s statement in Employees that the “literal

language” of the statute plainly covered the state entities. Employees, 411 U.S. at 283. It is hard to imagine

a more explicit recognition of the clarity of statutory

text.

10

Remarkably, then, the USDA argues in the alternative that legislative history can be used to “reinforce

that Congress has not waived immunity” even if it cannot be used to find a waiver that does not exist in the

statutory text. Pet’r Br. 27-28. Not only has this Court

expressly held to the contrary, see supra Section I, but

creating such a one-way street would undermine congressional authority and the careful balancing that

goes into deciding whether to effectuate a waiver of

sovereign immunity in the first place. In other words,

if courts were permitted to go searching through legislative history for indications that contradict clear statutory text, it would wrest control of the sovereign immunity question away from Congress and put it in the

hands of the Judiciary, undermining the chief justification for sovereign immunity as a default rule that

Congress legislates against.

In any event, Employees does not stand for the

broad proposition for which the USDA cites it. Never

once in the decision did this Court suggest that statutory cross-references categorically cannot create waivers of sovereign immunity. Indeed, the Court’s recognition that the two statutory sections of the FLSA read

together created a “literal” waiver of sovereign immunity, 411 U.S. at 283, suggests quite the opposite.

B. The second case that the USDA relies on for its

novel rule, Atascadero State Hospital v. Scanlon, 473

U.S. 234 (1985), also in no way “illustrate[s] that Congress does not waive sovereign immunity simply by

cross-referencing a broad general definition.” Pet’r Br.

10. For one thing, Atascadero could not have possibly

addressed how “broad definitions” affect the sovereign

immunity analysis because the case did not turn on an

expressly defined term at all.

Instead, in Atascadero, this Court held that a provision that authorized suit for violations of Section 504

11

of the Rehabilitation Act by “any recipient of Federal

assistance” was “not the kind of unequivocal statutory

language sufficient to abrogate” a state’s Eleventh

Amendment immunity, even if the state received “Federal assistance.” 473 U.S. at 245-46. Critically, however, states were not defined by Congress as “recipient[s] of Federal assistance” in the Rehabilitation Act;

rather, they became “recipient[s]” through their own

actions.

It is thus possible to imagine that when Congress

subjected “any recipient of Federal assistance” to suit

for violation of Section 504, it did not consider that

such broad language might cover states and state

agencies under certain circumstances. At least, Congress itself never expressly stated as much.

It is much more difficult to imagine that Congress

did not think the federal government could be subject

to suit when it wrote a law subjecting any “person” to

suit and defining “person” to include “any . . . government or governmental subdivision or agency,” 15

U.S.C. § 1681a(b). Congress itself wrote both the

cause of action and the definitions provision, albeit at

different times.2

And even if Atascadero created any doubt about

Congress’s ability to waive sovereign immunity

through a statutory cross-reference, subsequent deci-

2 Notably, Congress wrote the cause of action subjecting any

“person” to suit after writing the definitions provision, which defined “person” as including a “government or governmental subdivision or agency.” Compare Fair Credit Reporting Act, Pub. L.

No. 91-508, sec. 601, § 603(b), 84 Stat. 1127, 1128 (1970) (defining

“person” to include the federal government), with Consumer

Credit Reporting Reform Act of 1996, Pub. L. No. 104-208,

§§ 2412(a)-(e), 2415, 110 Stat. 3009-446 to 3009-447, 3009-450

(creating civil liability for “[a]ny person”).

12

sions of this Court put it to rest. In both Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and Nevada

Department of Human Resources v. Hibbs, 538 U.S.

721 (2003), this Court held that authorization of suit

against a “public agency” permitted suit against a

state agency, where the statute contained a separate

provision defining “public agency” as including “the

government of a State.” See Kimel, 528 U.S. at 73-74;

Hibbs, 538 U.S. at 726. In reaching that conclusion in

Kimel, this Court explained that it has “never required

that Congress make its clear statement [waiving sovereign immunity] in a single section or in statutory

provisions enacted at the same time.” 528 U.S. at 76.

The USDA makes much of the fact that in both

Kimel and Hibbs, the defined term appearing in the

cause of action, “public agency,” inherently conveyed

that state agencies were covered—or at least, “public

agency,” in the USDA’s view, is a more natural fit with

a definition including state agencies than “person” is

with a definition including the federal government.

Even if true, that is irrelevant: the whole purpose of

including a “definitions” section in a statute is to clarify whether certain terms should take on special—even

atypical—meanings in the context of the law. To require the defined term to bear some particular meaning independent of its statutory definition would render the definition provision itself unnecessary.

C. Once its arguments from precedent are discounted, what the USDA really wants becomes clear:

for this Court to engage in the sort of weighing of policy

interests that Congress already undertook when it enacted a waiver of sovereign immunity in the FCRA.

For instance, the USDA argues that authorizing

suits against it through the FCRA is “inconsistent with

the carefully calibrated remedies available against the

federal government under the Privacy Act,” which

13

“comprehensively regulates Executive Branch agencies in their collection, maintenance, use, and dissemination of ‘records’ containing information about an

‘individual,’” Pet’r Br. 35-36 (quoting 5 U.S.C.

§ 552a(a)(1)-(5) and (b)), and “authorizes only a limited

scope of private civil actions,” id. at 36 (quoting 5

U.S.C. § 552a(g)).

Yet it is entirely possible—indeed, likely—that

Congress was aware of the Privacy Act and its limited

remedies when it enacted the FCRA, and it decided

that those remedies were insufficient to ensure the accuracy of consumer credit information. Congress easily could have made the judgment that violation of

such accuracy requirements justified greater or different punishment from that authorized by the Privacy

Act. It is not the role of this Court to second-guess that

judgment.

The USDA also asserts that a plain-text reading of

the FCRA’s sovereign immunity provisions would necessarily subject states, not just the federal government, to suit, in violation of this Court’s holding in

Seminole Tribe of Florida v. Florida, 517 U.S. 44

(1996), that Congress cannot abrogate state sovereign

immunity under its Commerce Clause authority.

Even if the USDA’s interpretation were correct, but see

Resp. Br. 28-29 (arguing the FCRA’s cause of action

extends to states but is not sufficient to waive their

immunity), it would not give this Court license to rewrite the FCRA in a case that involves federal sovereign immunity and is thus one in which Congress

plainly has the authority to waive immunity. The bottom line is that this Court should not depart from the

plain meaning of the FCRA’s text because of speculation about how that text might apply in a different context.

14

For this Court to accept the USDA’s invitation to

raise the already-high bar for waiving sovereign immunity after Congress has already legislated would be

especially problematic. “It is a commonplace of statutory interpretation that ‘Congress legislates against

the backdrop of existing law.’” Parker Drilling Mgmt.

Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019)

(quoting McQuiggin v. Perkins, 569 U.S. 383, 398 n.3

(2013)). The law that existed in 1996 when Congress

revised the FCRA’s civil liability provision was clear,

and remains so today: Congress may abrogate sovereign immunity by “making its intention unmistakably

clear in the language of the statute.” Dellmuth, 491

U.S. at 228. Awareness of the rules for waiving sovereign immunity allows Congress to act deliberately

when it wants to do so. If this Court were permitted

to change the rules of the game after-the-fact, it would

essentially be rewriting the statute that Congress enacted, notwithstanding the myriad policy considerations that go into any waiver of sovereign immunity.

See Nagle, supra, at 773 (“[I]nterpretive rules that

Congress cannot satisfy when drafting a statute conflict with legislative supremacy.”).

This Court has always been wary of engaging with

such weighty questions—ones that it is ill-suited to answer. For instance, in the context of Bivens, this Court

has cautioned that “the decision to recognize a damages remedy requires an assessment of its impact on

governmental operations systemwide,” an assessment

that is more appropriately vested in Congress than the

courts. Ziglar v. Abbasi, 582 U.S. 120, 136 (2017).

There, as here, “the most important question is ‘who

should decide’ whether to provide for a damages remedy, Congress or the courts?” Hernandez, 140 S. Ct. at

750 (quoting Abbasi, 582 U.S. at 135). “The correct

15

‘answer most often will be Congress.’” Id. at 750 (quoting Abbasi, 582 U.S. at 135).

Just as this Court has cautioned against inferring

a remedy where the text is not clear, so too should this

Court refrain from foreclosing a remedy that Congress

has expressly authorized. “The exemption of the sovereign from suit involves hardship enough where consent has been withheld.” United States v. Williams,

514 U.S. 527, 541 (1995) (Scalia, J., concurring) (quoting United States v. Aetna Cas. & Sur. Co., 338 U.S.

366, 383 (1949)). This Court should not “add to its rigor by refinement of construction where consent has

been announced.” Id.

* * *

At bottom, this case involves a straightforward exercise of statutory interpretation. The text of the

FCRA clearly and unambiguously waives the federal

government’s sovereign immunity from suit. The

USDA may “wish[] [the FCRA] said something else.

But that is ‘an appeal better directed to Congress.’”

Talevski, 143 S. Ct. at 1455 (quoting Nieves v. Bartlett,

139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring

in part and dissenting in part)). This Court should not

indulge it.

16

CONCLUSION

For the foregoing reasons, this Court should affirm

the judgment of the court below.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 2, 2023

* Counsel of Record