Reginald Kirtz v. Trans Union LLC ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 21-2149
_______________________
REGINALD KIRTZ,
Appellant
v.
TRANS UNION LLC;
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE
AGENCY,
doing business American Education Services;
UNITED STATES DEPARTMENT OF AGRICULTURE
RURAL DEVELOPMENT RURAL HOUSING SERVICE
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-20-cv-05231
District Judge: The Honorable Mitchell S. Goldberg
__________________________
Argued May 24, 2022
Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges
(Filed: August 24, 2022)
Nandan M. Joshi [ARGUED]
Allison M. Zieve
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Matthew B. Weisberg
Weisberg Law
7 South Morton Avenue
Morton, PA 19070
Counsel for Appellant
Mark B. Stern [ARGUED]
Sarah W. Carroll
United States Department of Justice
Civil Division, Appellate Staff
Room 7511
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellee
__________________________
OPINION OF THE COURT
__________________________
KRAUSE, Circuit Judge
There are profound implications to throwing open the
doors to the United States Treasury, so before we do, we need
to be sure that is what Congress intended. Here, the District
Court dismissed Appellant Reginald Kirtz’s lawsuit against the
U.S. Department of Agriculture (“USDA”) for alleged
violations of the Fair Credit Reporting Act (“FCRA”), 15
U.S.C. § 1681 et seq, because it concluded the statute did not
clearly waive the United States’ sovereign immunity. The
2
District Court was in good company, as the Courts of Appeals
to have considered this issue are split down the middle, and
until today, we had not yet spoken. But our best indicator of
Congress’s intent is the words that it chose, and in our view,
the FCRA’s plain text clearly and unambiguously authorizes
suits for civil damages against the federal government. In
reaching a contrary conclusion, the District Court relied on its
determination that applying the FCRA’s literal text would
produce results that seem implausible. That may be, but
implausibility is not ambiguity, and where Congress has
clearly expressed its intent, we may neither second-guess its
choices nor decline to apply the law as written. Accordingly,
we will reverse and remand to the District Court for further
proceedings.
I.
In 1970, Congress enacted the FCRA to “ensure fair and
accurate credit reporting, promote efficiency in the banking
system, and protect consumer privacy.” Safeco Ins. Co. of Am.
v. Burr, 551 U.S. 47, 52 (2007). As originally enacted, the
FCRA imposed substantive requirements on consumer
reporting agencies and “persons” who used information in
credit reports. See Pub. L. No. 91-508, §§ 604-615, 84 Stat.
1114, 1129-33 (1970) (“1970 Act”). The 1970 Act also
expressly defined the term “person” as “any individual,
partnership, corporation, trust, estate, cooperative, association,
government or governmental subdivision or agency, or other
entity.” Id. § 603(b).
In 1996, Congress amended the FCRA to impose new
requirements on “persons,” such as creditors and lenders, who
furnish information to credit reporting agencies. See
Consumer Credit Reporting Reform Act of 1996, Pub. L. No.
3
104-208, § 2413, 110 Stat. 3009, 3009-447 to -449 (“1996
Amendments”). One such set of requirements is triggered
when consumers contact a consumer reporting agency to
dispute the accuracy of information in their credit file under
§ 1681i(a)(1)(A) of the FCRA. The consumer reporting
agency is required to send notice of the dispute to “any person
who provided any item of information in dispute”—that is, to
the furnisher of the information. 15 U.S.C. § 1681i(a)(2)(A).
When a furnisher receives such notice from a consumer
reporting agency, it must “conduct an investigation with
respect to the disputed information,” “modify,” “delete,” or
“block the reporting of” any information found to be
inaccurate, and “report the results of the investigation” to both
the consumer reporting agency that provided notice and, “if the
investigation finds that the information is incomplete or
inaccurate,” to “all other consumer reporting agencies” to
which the furnisher provided the disputed information. Id.
§ 1681s-2(b)(1).
If a furnisher of information negligently fails to comply
with these requirements—or any of the FCRA’s other
substantive requirements—§ 1681o authorizes consumers to
bring an action for actual damages, costs, and attorney’s fees.
If the failure to comply is willful, § 1681n further provides for
statutory and punitive damages. When §§ 1681n and 1681o
were originally enacted in 1970, they imposed liability only on
consumer reporting agencies and users of information, see Pub.
L. No. 91-508 at §§ 616-17, but when Congress expanded the
FCRA’s substantive requirements in the 1996 Amendments it
also expanded these sections to authorize suits against “[a]ny
person” who fails to comply with “any requirement” under the
Act, 15 U.S.C. §§ 1681n(a), 1681o(a).
4
This appeal arises from two loans issued to Reginald
Kirtz, one by the Pennsylvania Higher Education Assistance
Agency (“AES”), a “public corporation” authorized under
Pennsylvania law to make, guarantee, and service student
loans, 24 Pa. Stat. and Cons. Stat. §§ 5101, 5104(1), and the
other by the USDA through the Rural Housing Service, which
issues loans to promote the development of safe and affordable
housing in rural communities. Kirtz alleges that, as of June
2018, both of his loan accounts were closed with a balance of
zero. Despite this, AES and the USDA continued to report the
status of Kirtz’s accounts as “120 Days Past Due Date” on his
credit file from Trans Union LLC, resulting in damage to his
credit score. Pursuant to § 1681i(a)(1)(A) of the FCRA, Kirtz
sent a letter to Trans Union disputing the inaccurate statements
on his credit file, and Trans Union gave notice of the dispute
to both AES and the USDA per § 1681i(a)(2)(A). According
to Kirtz, however, neither AES nor the USDA took any action
to investigate or correct the disputed information, in violation
of § 1681s-2(b)(1).
Kirtz commenced this action against Trans Union, AES,
and the USDA on October 20, 2020, alleging both negligent
and willful violations of the FCRA under §§ 1681n and
1681o. 1 Both AES and Trans Union filed answers to Kirtz’s
1
Specifically, Kirtz alleged that AES and the USDA
failed to comply with the duties the FCRA imposes on
furnishers of information under § 1681s-2(b)(1), and that Trans
Union failed to comply with the duties the FCRA imposes on
credit reporting agencies to ensure the accuracy of the
information contained within credit reports under §§ 1681e(b),
1681i(a)(1)(A), and 1681i(a)(5).
5
Amended Complaint, but the USDA responded by filing a
motion to dismiss for lack of subject matter jurisdiction based
on the United States’ sovereign immunity. 2 See Fed. R. Civ.
P. 12(b)(1). The District Court agreed with the USDA that
§§ 1681n and 1681o did not unequivocally express Congress’s
intent to waive sovereign immunity and granted the USDA’s
motion to dismiss. Applying the statutory definition of
“person” to the civil liability provisions, the Court reasoned,
would require doing so throughout the FCRA, leading to
certain results that seemed implausible. Thus, the Court
rejected that reading, even recognizing those provisions
authorize suits against “[a]ny person,” and § 1681a(b)
expressly defines “person” to include any “government or
governmental subdivision or agency.”
II.
Kirtz originally invoked the District Court’s jurisdiction
under 15 U.S.C. § 1681p and 28 U.S.C. § 1331. We have
2
Though AES was established by the Pennsylvania
Legislature as “a public corporation and government
instrumentality,” 24 Pa. Stat. and Cons. Stat. § 5101, it is not
supported by tax revenue, is controlled by a largely
autonomous board of directors, and would be responsible for
paying any civil judgment against it from its own funds, rather
than those of the Commonwealth, see id. at §§ 5104(3),
5105.10. For these reasons, some courts have expressed doubt
as to whether AES shares Pennsylvania’s sovereign immunity
from suit. See, e.g., United States ex rel. Oberg v. Pa. Higher
Educ. Assistance Agency, 804 F.3d 646, 650 (4th Cir. 2015).
Because AES did not move to dismiss on sovereign immunity
grounds, however, the District Court did not consider that
issue, and it is consequently not implicated in this appeal.
6
jurisdiction under 28 U.S.C. § 1291. We review the District
Court’s legal conclusion that the FCRA does not waive the
federal government’s sovereign immunity de novo. See Karns
v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018).
The sole question at issue in this appeal is whether
§§ 1681n and 1681o of the FCRA waive the USDA’s
sovereign immunity. We have not addressed this question, but
four other Courts of Appeals have. The District Court aligned
itself with the Fourth and Ninth Circuits, which concluded that
the United States is not subject to liability under the FCRA. See
Robinson v. United States Dep’t of Educ., 917 F.3d 799 (4th
Cir. 2019); Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir.
2018). The D.C. and Seventh Circuits, on the other hand, have
reached the opposite conclusion, holding that the FCRA’s plain
language indeed waives the United States’ sovereign
immunity. See Mowrer v. United States Dep’t of Transp., 14
F. 4th 723 (D.C. Cir. 2021); Bormes v. United States, 759 F.3d
793 (7th Cir. 2014). For the reasons that follow, we agree with
the reasoning of the D.C. and Seventh Circuits and hold that
§§ 1681n and 1681o unequivocally waive the sovereign
immunity of the United States.
A.
The United States and its agencies—including the
USDA—enjoy sovereign immunity from suit, but Congress
may waive that immunity by enacting a statute that authorizes
suit against the government for damages or other relief. See
FAA v. Cooper, 566 U.S. 284, 290–91 (2012); Doe 1 v. United
States, 37 F.4th 84, 86–88 (3d Cir. 2022). Whether a statute
waives sovereign immunity is a question of statutory
interpretation. Any waiver must be “unequivocally expressed”
in the statutory text, Sossamon v. Texas, 563 U.S. 277, 284
7
(2011) (quoting Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 99 (1984)), but “Congress need not state its intent
in any particular way” and is “never required” to use “magic
words” to waive immunity, Cooper, 566 U.S. at 291. Rather,
if, after applying the “traditional tools of statutory
construction,” there is “no ambiguity,” courts must apply a
waiver as written, Richlin Sec. Serv. Co. v. Chertoff, 553 U.S.
571, 590 (2008), and may not “narrow [a] waiver that Congress
intended,” United States v. Idaho ex rel. Dir., Idaho Dep’t of
Water Res., 508 U.S. 1, 7 (1993) (internal quotation marks
omitted).
On the other hand, if the waiver is ambiguous—
meaning the language Congress purportedly used to waive
immunity is reasonably susceptible to more than one
meaning—then the sovereign immunity canon requires courts
to construe that ambiguity in favor of immunity. See Cooper,
566 U.S. at 290.
Importantly, while we speak of Congress’s “intent” to
waive sovereign immunity, our inquiry is limited the statutory
text. Legislative history may neither supply a waiver that is
not present in the text nor destroy one that is. See Lane v. Pena,
518 U.S. 187, 192 (1996). Instead, if a waiver is “clearly
discernable from the statutory text in light of traditional
interpretive tools,” we must give effect to it. Cooper, 566 U.S.
at 291. For the reasons that follow, we hold that §§ 1681n and
1681o of the FCRA satisfy this standard.
B.
1.
8
The FCRA provides that any “person” who either
negligently or willfully “fail[s] to comply with any
requirement imposed under [the FCRA] with respect to any
consumer is liable to that consumer” for civil damages. 15
U.S.C. §§ 1681n(a), 1681o(a). The FCRA also expressly
defines the term “person” to include any “government or
governmental subdivision or agency.” Id. § 1681a(b). The
term “person” is usually presumed to not include the sovereign.
See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529
U.S. 765, 780–81 (2000). But that presumption only applies
“[i]n the absence of an express statutory definition[.]” Return
Mail, Inc. v. United States Postal Serv., 139 S. Ct. 1853, 1861-
62 (2019). And here, the FCRA contains such an express
definition: it defines “person” to include any “government or
governmental subdivision or agency.” 15 U.S.C. § 1681a(b).
This definition, moreover, explicitly applies “for
purposes of this subchapter,” id. at § 1681a(a), meaning
subchapter III of chapter 41 of Title 15, containing the entirety
of the FCRA, including both its substantive requirements and
its enforcement provisions, see id. §§ 1681–1681x. Indeed,
where Congress wanted to use a different or narrower
definition of “person” within the FCRA, it knew how to do so:
§ 1681g, for example, imposes certain disclosure obligations
on “[a]ny person who makes or arranges loans and who uses a
consumer credit score,” 15 U.S.C. § 1681g(g)(1), but that
section explicitly excludes from the FCRA’s definition of
“person” any “enterprise” as defined in a separate statute, id.
§ 1681g(g)(1)(G). We presume, therefore, that Congress’s
failure to do so in §§ 1681n and 1681o was deliberate and
intended to convey the full statutory definition. And that
presumption is buttressed by the fact that § 1681n clearly
distinguishes between “natural person” and the statutorily-
9
defined term “person.” See id. § 1681n(a)(1)(B), n(a).
Together, these statutory provisions demonstrate that Congress
intended for the term “person” in the civil liability provisions
to carry its expressly defined meaning, rather than a narrower
or a colloquial meaning.
Nor is there ambiguity about whether that express
definition—covering “any . . . government or governmental
subdivision or agency”—encompasses the United States and
its agencies, including the USDA. Id. § 1681a(b). As a general
matter, Congress uses the expansive modifier “any” to bring
within a statute’s reach all types of an item. See, e.g., Republic
of Iraq v. Beaty, 556 U.S. 848, 856 (2009); Ali v. Fed. Bureau
of Prisons, 552 U.S. 214, 218–220 (2008). That it intended as
much here is apparent from § 1681a(d)(2)(D), which excludes
from the definition of “consumer report” any communications
“described in” § 1681a(y), 3 which relates, inter alia, to
employment-based communications that are “not provided to
any person except . . . any Federal or State officer, agency, or
department,” 15 U.S.C. § 1681a(y)(1)(D)(ii). Were federal
agencies and departments already excluded from the FCRA’s
definition of “person,” there would be no need for these carve-
outs.
Likewise, § 1681b(b)(3)(A) imposes obligations on
“person[s]” who make adverse employment decisions based on
credit reports but makes an exception “[i]n the case of an
agency or department of the United States Government” if that
3
Due to a drafting error, § 1681a(d)(2)(D) actually
refers to § 1681a(x), but the accompanying notes make clear
that the reference should be to subsection (y). See 15 U.S.C.
§ 1681a note (References in Text Notes).
10
agency or department makes certain written findings. Id.
§ 1681b(b)(4)(A). Again, this exception would be entirely
superfluous if federal agencies and departments were not
otherwise included as “persons” within the FCRA’s
definition. 4
Even the Fourth and Ninth Circuits, though ultimately
concluding that Congress did not waive the United States’
sovereign immunity, do not dispute that the United States must
4
Other examples abound. For example, the FCRA only
permits credit reporting agencies to furnish credit reports in six
circumstances “and no other:” (1) pursuant to a court order;
(2) pursuant to the written instructions of the consumer; (3) to
“person[s]” whom the credit reporting agencies believe intend
to use the information for specified purposes; (4) in response
to a request from the head of a state or local child support
agency; (5) to an agency administering a State child support
plan; and (6) to the Federal Deposit Insurance Corporation or
the National Credit Union Administration pursuant to
applicable federal law. 15 U.S.C. § 1681b(a)(1)–(6). If the
United States and its agencies were not “persons,” within the
FCRA’s definition, credit reporting agencies would not be able
to legally provide them with credit reports. Similarly, when a
consumer disputes the accuracy of information in a credit
report, § 1681i only requires credit reporting agencies to
provide notice of disputes to “persons” who furnished the
disputed information. Id. § 1681i(a)(2). Reading the
government out of the definition of “person” would thus
eliminate the sole means by which the FCRA allows
consumers to dispute information furnished by the nation’s
largest employer and creditor.
11
be a “person” for purposes of the FCRA’s substantive
requirements; 5 rather, they draw a distinction between the
Act’s substantive and enforcement provisions. See Robinson,
917 F.3d at 806; Daniel, 891 F.3d at 773. But that distinction
is wholly artificial. The FCRA could not be clearer that its
definitions apply to the entire subchapter, see 15 U.S.C.
§ 1681a(a), and there is nothing in the text of the FCRA’s civil
liability provisions nor its other enforcement provisions to the
contrary. Nor do these courts cite any authority to support such
a departure from the statutory text.
In sum, we agree with the Seventh and D.C. Circuits
that the plain text of the statute operates as a waiver of
sovereign immunity: “[O]nce it is conceded that ‘any . . .
government’ includes the United States . . . there is no basis for
denying that the same definition governs FCRA’s private
damages actions.” 6 Mowrer, 14 F.4th at 730.
5
The United States itself conceded that it was a
“person” within the FCRA’s definition in Bormes, although it
did not do so in Robinson or Daniel. Compare Bormes, 759
F.3d at 795, with Robinson, 917 F.3d at 806, and Daniel, 891
F.3d at 773.
6
The USDA suggests that, in order to waive sovereign
immunity, Congress may not simply define a term like
“person” to include the government in a general definitional
section and then use that term in a later liability section, but
that it must instead authorize suit against the government in the
liability section itself. The Supreme Court, however, has
“never required that Congress make its clear statement in a
single section or in statutory provisions enacted at the same
time[.]” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 76 (2000).
12
2.
Our reading of the FCRA’s plain text is reinforced by a
comparison with the Truth in Lending Act (“TILA”), 15 U.S.C.
§ 1601 et seq., and the Equal Credit Opportunity Act
(“ECOA”), 15 U.S.C. § 1691 et seq., both of which are
codified alongside the FCRA in Chapter 41 of Title 15. Like
the FCRA, the TILA and ECOA define “person” to include any
“government or governmental subdivision or agency,” and
each includes “person” in its definition of the term “creditor.”
See 15 U.S.C. §§ 1602(d)–(g), 1691a(e)–(f). Both statutes also
authorize suits for civil damages against any “creditor” who
violates their substantive requirements, using nearly identical
language to the FCRA’s civil liability provisions. Compare 15
U.S.C. § 1640(a) (“[A]ny creditor who fails to comply with
any requirement imposed under [the TILA] . . . with respect to
any person is liable to such person . . . .”), and 15 U.S.C.
§ 1691e(a) (“Any creditor who fails to comply with any
requirement imposed under [the ECOA] shall be liable to the
aggrieved applicant . . . .”), with 15 U.S.C. § 1681n(a) (“Any
person who willfully fails to comply with any requirement
imposed under [the FCRA] with respect to any consumer is
liable to that consumer . . . .”).
The surrounding statutory context of each statute
confirms that Congress understood the use of the defined term
“person” to signal an unambiguous waiver of sovereign
immunity. The TILA, for example, includes a provision that
expressly preserves the United States’ sovereign immunity
against civil suits. See 15 U.S.C § 1612(b); see Moore v.
United States Dep’t. of Agriculture, 55 F.3d 991, 994 (5th Cir.
1995). Similarly, while the ECOA also authorizes punitive
damages against “creditors,” it expressly exempts any
“government or governmental subdivision or agency.” 15
13
U.S.C § 1691e(b). As these examples make plain, Congress
understood in the contexts of the TILA and ECOA that
authorizing suits against “any creditor”—i.e., any “person”—
would otherwise suffice to waive sovereign immunity, 7 and
legislated against that statutory background when it enacted the
1996 FCRA Amendments. 8 Indeed, since 1996, Congress has
amended the FCRA to expressly incorporate the ECOA’s
definition of “creditor,” and thus its definition of “person.” See
15 U.S.C. § 1681a(r)(5) (1998). These statutory parallels and
cross-references provide additional evidence that the FCRA
authorizes civil damages against “any person,” without any
exemption for the United States government.
3.
7
In distinguishing the ECOA waiver, the District Court
stressed that neither of the FCRA’s civil liability provisions
contains an exemption for government entities similar to that
found in § 1691e(b). But the inference is the exact opposite: It
is the express authorization of suits against “any creditor” in
§ 1691e(a) that waives sovereign immunity, not the
government exemption in subsection § 1691e(b), which
merely confirms the existence of the waiver. Put another way,
if Congress eliminated subsection (b) tomorrow, the waiver in
subsection (a)—which is nearly identical to the FCRA’s
waiver—would remain clear and unambiguous.
8
The civil liability provision of the TILA was enacted
in 1980 and the relevant provision of the ECOA in 1991. And
by 1996 at least one Court of Appeals had already interpreted
the ECOA to unambiguously waive the United States’
sovereign immunity. See Moore, 55 F.3d at 994.
14
The USDA challenges our interpretation by pointing to
the original 1970 version of the FCRA, which also defined
“person” to include the government but did not impose civil
liability on “persons”—only on “consumer reporting
agenc[ies] [and] user[s] of information.” Pub. L. No. 91-508
at §§ 616-617. The USDA argues that the FCRA’s definition
of “person” could not have waived the United States’ sovereign
immunity in 1970 and that there is nothing in the text or
legislative history of the 1996 Amendments to signal a change
in Congress’s intent. This argument, however, ignores
Congress’s decision to extend civil liability under the 1996
Amendments beyond consumer reporting agencies and users
of information to “persons,” a term expressly encompassing
the United States and thus signaling a waiver of sovereign
immunity absent an exemption.
We also take issue with the USDA’s premise. The 1970
Act imposed civil liability on all “user[s] of information” who
violated its requirements, and while the statute did not
expressly define “user[s] of information,” it did prohibit
consumer reporting agencies from providing credit reports
except to “person[s]” whom the agency had reason to believe
would “use the information” for specified purposes. Pub. L.
No. 91-508 at §§ 604(3), 616-617. If only “person[s]” could
be “users of information,” then the 1970 Act’s civil liability
provisions would appear to authorize suit against any “person”
who uses credit information, including the United States. 9
9
The Seventh and D.C. Circuits have also suggested
that the 1970 Act may have waived the United States’
sovereign immunity. See Mowrer, 14 F. 4th at 730 n.1;
Bormes, 759 F.3d at 795. The Ninth Circuit, however, rejected
this reading based on the fact that the 1970 Act only imposed
15
In any event, even if the USDA is correct that the 1970
Act did not waive sovereign immunity, we are focused today
on interpreting the 1996 Amendments, and those Amendments,
in clear and unambiguous terms, authorize suits against all
“persons,” including the United States.
4.
We also find it significant that, in addition to imposing
liability on “any person,” Congress also authorized suits for
failure to comply with “any requirement imposed under [the
FCRA] with respect to any consumer[.]” 15 U.S.C.
§§ 1681n(a), 1681o(a). As previously discussed, the United
States is subject to the FCRA’s substantive requirements as
both a furnisher and a user of credit information, see id.
§§ 1681s-2, 1681b(b)(3), so even if the FCRA did not
expressly impose liability on the United States as a “person,”
the plain text would appear to authorize suit for violations of
“any requirement” to which the FCRA subjects the United
States.
This reading finds support in the Supreme Court’s
decision in Lane v. Pena, 518 U.S. 187 (1996). In that case,
the Court considered a provision of the Rehabilitation Act of
1973 that authorized civil damages “to any employee or
applicant for employment” aggrieved by an employer’s
response to an EEOC complaint. 29 U.S.C. § 794a(a)(1).
Though that provision never references the United States
government nor any defined term like “person,” the
Rehabilitation Act expressly allows employees to file EEOC
criminal liability on “persons.” See Daniel 891 F.3d at 775 &
n.12. It does not appear to have considered that only “persons”
could be “user[s] of information” under the 1970 Act.
16
complaints against federal agencies. See id. § 791(f). Based
on this and § 794a(a)(1)’s “broad language” encompassing
“any complaint,” the Supreme Court held that the provision
expressly waived federal agencies’ sovereign immunity. Lane,
518 U.S. at 193. In contrast, a different provision of the
Rehabilitation Act that imposed liability only on a narrow class
of defendants who were “recipient[s] of Federal assistance or
Federal provider[s] of such assistance” did not speak broadly
enough to waive federal sovereign immunity. Id. at 192–93
(quoting 29 U.S.C. § 794a(a)(2)).
The same is arguably true here, where the FCRA both
imposes requirements on the United States and authorizes civil
damages for failure to comply with “any requirement.” We
need not now decide, however, if the FCRA’s “any
requirement” language would suffice on its own, as in Lane, to
effect a waiver of sovereign immunity. For today’s purposes,
it is enough to observe that Congress’s use of such broad
language lends further support to our reading.
5.
In the face of the FCRA’s clear text, the USDA tells us
to look instead to the statute’s legislative history. Our inquiry,
however, is limited to ascertaining Congress’s intent as
expressed in the text, and “[l]egislative history generally will
be irrelevant to a judicial inquiry into whether Congress
intended” to waive sovereign immunity. Dellmuth v. Muth,
491 U.S. 223, 230 (1989). For the reasons we have laid out,
the FCRA’s text is clear, and legislative history cannot create
ambiguity where there is none. See, e.g., Bostock v. Clayton
Cnty., 140 S. Ct. 1731, 1749 (2020).
17
Moreover, even if the legislative history put forward by
the USDA were relevant, it would not be persuasive. The
USDA provides no evidence that Congress sought to preserve
the federal government’s immunity; instead, it offers scattered
references by members of Congress to private furnishers of
credit information, such as banks and businesses, and asks us
to infer from Congress’s silence as to public furnishers its
intent to exclude them from civil liability. 10 But Congressional
silence can hardly be said to speak loudly, particularly when
viewed alongside clear statutory text. 11 Moreover, as Kirtz
points out, the USDA’s reliance on Congressional silence
would also mean that the federal government, because it was
10
The USDA also urges us to consider the
Congressional Budget Office’s analyses of antecedent versions
of the FCRA, none of which anticipated significant
government liabilities. Cf. Daniel, 891 F.3d at 775–76. But
the “CBO is not Congress,” Sharp v. United States, 580 F.3d
1234, 1239 (Fed. Cir. 2009), and its expertise is calculating
costs, not statutory interpretation; its views are thus immaterial
to our analysis.
11
This was not always so. As the USDA points out, the
Supreme Court has in the past been willing to disregard a clear
and unambiguous waiver of immunity based solely on silence
in the Congressional record. See Appellees’ Br. at 17 (citing
Emps. of the Dep’t of Pub. Health & Welfare v. Dep’t of Pub.
Health & Welfare, 411 U.S. 279, 282–87 (1973)). That era,
however, has long since passed, and today’s precedent makes
clear that our analysis must begin and end with the text. See
Cooper, 566 U.S. at 291; Seminole Tribe of Fla. v. Fla., 517
U.S. 44, 55–56 (1996); Dellmuth, 491 U.S. at 230.
18
not discussed in the floor debates, could not be subject to the
FCRA’s substantive requirements, which it clearly is.
C.
The District Court in this case was persuaded to follow
the Fourth and Ninth Circuits, each of which held that
Congress needed to be even clearer to meet the standard set by
other, more specific, waivers of sovereign immunity. It goes
without saying, though, that some waivers of sovereign
immunity will be more explicit than others. And the Supreme
Court has been clear that “Congress need not state its intent in
any particular way,” and that we may not impose any “magic
words” requirement. Cooper, 566 U.S. at 291. Thus, while
other waivers of sovereign immunity may provide helpful
points of reference, they do not dictate the manner in which
Congress must convey its intent, nor can they inject ambiguity
into otherwise clear text.
The Fourth and Ninth Circuits placed great emphasis on
a second, more specific waiver of sovereign immunity within
the FCRA itself. Section 1681u requires credit reporting
agencies to disclose certain credit information to the Federal
Bureau of Investigation for counterintelligence purposes and
permits the FBI to disseminate that information to other federal
agencies subject to specific requirements. See 15 U.S.C.
§ 1681u(a)–(b), (g). Where the FBI or “[a]ny agency or
department of the United States” fails to comply with
requirements on its use of consumers’ credit information,
§ 1681u(j) imposes statutory, actual, and punitive damages. Id.
§ 1681u(j). Contrasting the explicit reference to the United
States in this waiver with the terms of §§ 1681n and 1681o,
these Courts reasoned that Congress intended to waive
19
sovereign immunity only in the former. See Robinson, 917
F.3d at 803-04; Daniel, 891 F.3d at 771–72.
We are not persuaded. As the D.C. Circuit correctly
observed, “there is a good reason why [§ 1681u(j)] specifically
targets federal agencies,” which is that only federal agencies
are subject to § 1681u’s substantive requirements in the first
place. Mowrer, 14 F.4th at 729. In contrast, §§ 1681n and
1681o concern requirements that apply not merely to the
government but to “persons” generally, so it makes sense to
employ the broader term rather than enumerate specific entities
already encompassed by the statutory definition.
The Fourth and Ninth Circuits also contrasted §§ 1681n
and 1681o with other waivers in other statutes that specifically
authorize suits against the United States. See Robinson, 917
F.3d at 803; Daniel, 891 F.3d at 772–73. The Federal Tort
Claims Act (“FTCA”), for instance, provides that “[t]he United
States shall be liable . . . in the same manner and to the same
extent as a private individual under like circumstances[.]” 28
U.S.C. § 2674. Likewise, the Clean Water Act (“CWA”)
provides that “any citizen may commence a civil action . . .
against any person (including (i) the United States, and (ii) any
other governmental instrumentality or agency . . .).” 33 U.S.C.
§ 1365(a), (a)(1).
Again, however, there are reasonable explanations for
why each of these waivers lists the United States specifically.
The FTCA, like § 1681u(j) of the FCRA, only applies to the
federal government, so there is no need to name any other
entity as liable. And the CWA’s definition of “person,” unlike
the FCRA’s, only includes state and municipal governments,
meaning that the United States would not otherwise be
20
included in the Act’s waiver if it were not specifically included.
See 33 U.S.C. § 1362(5).
The last group of comparators on which the Fourth and
Ninth Circuits rely are those that explicitly reference the
federal government not only in defining the potential
defendants but again in imposing liability. The Resource
Conservation and Recovery Act (“RCRA”), for instance,
defines the term “person” to “include each department, agency,
and instrumentality of the United States,” but also includes
additional language in its liability provision authorizing suits
“against any person, including (a) the United States, and
(b) any other governmental instrumentality or agency . . . .” 42
U.S.C. §§ 6903(15), 6972; see also Robinson, 917 F.3d at 803;
Daniel, 891 F.3d at 771 n.5. Likewise, the USDA points to the
Family and Medical Leave Act (“FMLA”) and the Age
Discrimination in Employment Act (“ADEA”), each of which
defines “employer” to include any “public agency,” 29 U.S.C.
§§ 2611(4), 203(d)—a term expressly defined to encompass
the federal government, see 29 U.S.C. § 2611(4) 12—before
imposing civil liability on “any employer (including a public
agency),” 29 U.S.C. §§ 2617(a)(2), 216(b). While the USDA
contends that these statutes, with their built-in redundancies,
should set the standard for the FCRA’s waiver, that would
impose the exact sort of “magic words” requirement that the
Supreme Court has long rejected. See Cooper, 566 U.S. at 291.
Even more troubling, the USDA’s approach would require that
12
Both statutes incorporate by reference the definition
of “public agency” under 29 U.S.C § 203(x), which includes
“the Government of the United States; the government of a
State or political subdivision thereof; [and] any agency of the
United States . . . .”
21
Congress employ “magic words” that are superfluous and
duplicative of an express statutory definition. Certainly,
Congress is free to repeat itself for good measure, as it did in
the FMLA, ADEA, and RCRA, but we will not require it to do
so.
In sum, none of the more explicit waivers cited by the
USDA or invoked by the Fourth or Ninth Circuits call into
question the clarity with which Congress spoke in the 1996
Amendments.
D.
In departing from the FCRA’s plain text, the Fourth and
Ninth Circuits assumed that treating the government as a
“person” for purposes of the FCRA’s civil liability provisions
would require doing so in every other provision of the statute,
including those that subject “persons” to punitive damages, 15
U.S.C. § 1681n(a)(2), criminal liability, id. § 1681q, and civil
enforcement actions by the Federal Trade Commission, id.
§ 1681s(a), and the states, id. § 1681s(c). This, according to
these sister Circuits, would lead to a parade of implausible and
untenable results. See Robinson, 917 F.3d at 804–05; Daniel,
891 F.3d at 770–71.
Marshaling that parade, however, is a legal bogeyman.
Courts have never been required to choose between
mechanically applying a statutory definition everywhere in a
statute or applying it nowhere. To the contrary, the Supreme
Court has repeatedly held that where a statute contains an
“express definition,” that definition is “virtually conclusive”
and must be applied for all purposes “[s]ave for some
exceptional reason.” Sturgeon v. Frost, 139 S. Ct. 1066, 1086
(2019) (internal quotation marks omitted). These reasons
22
include circumstances where applying a definition to a specific
provision would be unconstitutional, see Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 73–74, 91 (2000) (declining to apply the
ADEA’s definition of “public agency” to unconstitutionally
abrogate state sovereign immunity), where it would be absurd,
see Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510
(1989) (declining to apply the plain text of Federal Rule of
Evidence 609(a) in a way that “would deny a civil plaintiff the
same right to impeach an adversary’s testimony that it grants
to a civil defendant”), or where it would be “incompatible”
with Congress’s regulatory scheme, see Util. Air Regul. Grp.
v. EPA, 573 U.S. 302, 319–20 (2014) (declining to apply a
broad definition of the term “air pollutant” in the Clean Air Act
where doing so would render the EPA’s regulatory scheme
unworkable).
When it comes to sovereign immunity, it is
understandable and entirely appropriate that the District Court
was wary of implausible results and cautious about exposing
the public fisc to liability. But even exceptional circumstances
justify departing from a statutory definition only to the extent
necessary to avoid untenable—not merely implausible—
results. For all other provisions of a statute, courts must
continue to apply statutory terms as defined. With this
standard in mind, we consider the two categories of
purportedly “untenable” applications of the term “person” that
led the Fourth and Ninth Circuits to reject the FCRA’s
statutory definition.
1.
One category of potentially problematic applications is
those that appear untenable on their face, but which can be
reconciled with the statute without rejecting its definition
23
wholesale by using well-established canons of statutory
construction.
Section 1681q, for instance, imposes criminal penalties,
including fines and imprisonment, on any “person” who
knowingly obtains credit information under false pretenses. It
would be absurd, however, to subject the federal government
to criminal prosecution, not to mention the impossibility of
imprisoning a government entity. 13 See United States v.
Cooper Corp., 312 U.S. 600, 606–07 (1941) (holding that a
provision of the Sherman Act imposing criminal penalties on
“person[s]” could not “embrace the United States”); United
States v. Singleton, 165 F.3d 1297, 1300 (10th Cir. 1999)
(imposing criminal penalties on the United States government
is “patently absurd”); Berger v. Pierce, 933 F.2d 393, 397 (6th
Cir. 1991) (“[I]t is self-evident that a federal agency is not
subject to state or federal criminal prosecution.”). The canon
against absurdity thus leans against applying the FCRA’s
definition of “person” to this provision.
Similarly, a court could not interpret the term “person”
as used in §§ 1681n and 1681o as authorizing suits against state
13
The Seventh Circuit in Bormes viewed the FCRA’s
criminal liability provisions as unproblematic because it
interpreted them as authorizing criminal prosecutions only
against federal employees. See Bormes, 759 F.3d at 796. But
as the Ninth Circuit correctly observed, a faithful application
of the FCRA’s definition “would read ‘the United States’ into
the FCRA’s enforcement provisions, not ‘federal employees.’”
Daniel, 891 F.3d at 770. For the reasons we explain, however,
whether the FCRA’s definition of “person” may be applied to
§ 1681q is immaterial to whether it may be applied to §§ 1681n
and 1681o.
24
governments without running afoul of the Eleventh
Amendment and principles of state sovereign immunity, which
prohibit Congress from abrogating state sovereign immunity
under its Commerce Clause authority. See Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 72–73 (1996). And from that, the
Fourth Circuit reasoned that Congress could not have intended
for those provisions to waive the federal government’s
immunity either. See Robinson, 917 F.3d at 805. We see it
differently. There is no constitutional bar to Congress waiving
the federal government’s sovereign immunity in the FCRA, so
regardless of how Seminole Tribe affects state sovereign
immunity under the statute, it does not allow us to impute a
statutory bar in derogation of the statutory text.
To the contrary, doing so would disregard the central
tenet of Seminole Tribe and conflate Congress’s intent with its
power. In Seminole Tribe, the Supreme Court clearly
distinguished between two distinct inquiries—(1) whether
Congress has unequivocally expressed its intent to waive
immunity, and (2) whether Congress has acted pursuant to a
valid grant of authority, see 517 U.S. at 55—and addressed
each independently. It concluded that while Congress clearly
intended to abrogate state immunity, it lacked the power to do
so. See id. at 56–57, 72–73. Here, however, the plain text of
§§ 1681n and 1681o clearly expresses Congress’s intent to
authorize suits against both the federal and state governments,
and under Seminole Tribe we cannot infer from Congress’s
lack of authority under the Commerce Clause an intent to
preserve state immunity, let alone federal immunity. See id. at
55–57, 72.
Indeed, that inference has been resoundingly rejected by
the Supreme Court. In Kimel, the Court applied Seminole’s
twin inquiries to the ADEA, which subjects “public agencies”
25
to civil damages. See 528 U.S. at 78, 29 U.S.C. §§ 203(d),
203(x), 216(b). On the second prong, the Court concluded, as
in Seminole Tribe, that Congress lacked authority to abrogate
state sovereign immunity. See 528 U.S. at 91. But that
conclusion did not negate the Court’s holding as to the first
prong that Congress had clearly expressed its intent to do so by
authorizing suits against “public agencies,” a term defined to
include state agencies. See id. at 73-74. The same holds true
for the FCRA; whether Congress intended to abrogate state
sovereign immunity does not turn on whether it had authority
to do so. And where there is no constitutional bar to waiving
federal sovereign immunity, there is even less reason to
question the FCRA’s plain text.
2.
The other category of applications that concerned the
Fourth and Ninth Circuits are those that would produce results
that may be implausible, but which, ultimately, are not
untenable.
For example, there is a “presumption against [the]
imposition of punitive damages on governmental entities,” Vt.
Agency, 529 U.S. at 785, but that presumption, like sovereign
immunity, may be overcome by a clear expression of
Congress’s intent, see City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 263–64 (1981). Section 1681n(a)(2) meets that
standard.
Similarly, while Congress has only rarely expressed its
intent to subject the United States and its agencies to
enforcement actions brought by administrative agencies and
states, neither is unprecedented. RCRA, for instance,
authorizes the Environmental Protection Agency to bring
26
enforcement actions against other federal agencies, see 42
U.S.C. §§ 6928(a)(1) (authorizing civil actions by the EPA
Administrator), 6972(a)(1) (authorizing civil actions against
any “person,” including the United States and its agencies), and
both RCRA and the CWA permit states, as “persons,” to bring
actions against the federal government as well, see id.§§ 6972(a)(1) (authorizing suits against the United States by
“any person”), 6903(15) (defining “person” to include States);
33 U.S.C. §§ 1365(a)(1) (authorizing suits against the United
States by “any citizen”), 1365(g) (defining “citizen” as “a
person”), 1362(5) (defining “person” to include States). The
Fourth and Ninth Circuits did not identify any principle,
constitutional or otherwise, that would preclude Congress from
adopting a similar enforcement mechanism for the FCRA.
They held only that it would be “implausible” or “anomalous”
for Congress to do so without being more explicit. See
Robinson, 917 F.3d at 805; Daniel, 891 F.3d at 770–71. We
are aware of no principle of law, however, that requires
Congress to express its intent to authorize administrative or
state enforcement in a particular way beyond a clear
statement. 14
14
The closest the USDA comes to identifying such a
principle is its reference to the Supreme Court’s decision in
Library of Congress v. Shaw, 478 U.S. 310 (1986). In that
case, the Court applied the longstanding principle, dating from
common law, that even where Congress has waived the United
States’ immunity, “interest cannot be recovered unless the
award of interest was affirmatively and separately
contemplated by Congress.” Id. at 315. That principle,
however, is not implicated in this case.
27
In sum, there are two provisions for which applying the
FCRA’s definition of “person” would lead to untenable results
and a handful for which the results would be merely unusual,
but none ultimately precludes our application of that definition
to the civil liability provisions at issue here. 15
15
The USDA argues that if a statutory term cannot be
applied as defined to every part of a statute, that term is
ambiguous. See also Robinson, 917 F.3d at 805 (“The pro-
waiver camp cannot have it both ways—literal most often, just
not when it suits to blur the lines.”). This argument, however,
confuses ambiguity with applicability. The term “person” as
defined in the FCRA remains unambiguous, even if
exceptional reasons counsel against applying it in a particular
instance. Moreover, the USDA’s all-or-nothing approach is
inconsistent with cases in which the Supreme Court has
declined to apply a statutory definition without calling into
question its unambiguous meaning. See, e.g., Util. Air, 573
U.S. at 319–20 (recognizing that the term “air pollutant” in the
Clean Air Act was defined broadly enough to include
greenhouse gases but declining to apply it where doing so
would lead to unworkable results); Nw. Austin Mun. Util. Dist.
No. 1 v. Holder, 557 U.S. 193, 206–11 (2009) (recognizing that
the term “political subdivision” in the Voting Rights Act
unambiguously excluded certain districts that did not conduct
their own voter registration but declining to apply that
definition where doing so would frustrate the Act’s purpose);
United States v. Pub. Utils. Comm’n, 345 U.S. 295, 312–16
(1953) (recognizing that the term “person” under the Federal
Power Act unambiguously excluded municipalities but
declining to apply that definition in a way that would frustrate
28
3.
The upshot of that discussion is that we see no
exceptional reason that absolves us of our duty to apply the
FCRA’s definition to §§ 1681n and 1681o. There is no
constitutional impediment to Congress waiving the United
States’ sovereign immunity, and it is certainly not absurd for
Congress to do so. Nor would waiving the federal
government’s immunity be “incompatible” with the FCRA’s
enforcement scheme or “destroy” the statute’s major purposes.
Digit. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 778 (2018)
(first quoting Util. Air, 573 U.S. at 322 and then quoting
Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201
(1949)). To the contrary, one of the FCRA’s express findings
is that the banking system depends on “fair and accurate credit
reporting,” 15 U.S.C. § 1681(a)(1), and authorizing
enforcement against the federal government—the nation’s
largest employer and creditor—is a reasonable means of
furthering that goal. 16
The closest the Fourth and Ninth Circuits come to
identifying a reason not to apply the FCRA’s express definition
of “person” to the civil liability provisions is their observation
that waiving immunity for FCRA claims would expose the
federal fisc to potential liability. See Robinson, 917 F.3d at
the Act’s purposes by depriving municipalities of the right to
complain and petition).
16
We need not resolve here whether Congress in fact
chose to waive sovereign immunity specifically to further any
particular end; it suffices that waiver is not incompatible with
the FCRA’s purposes. Cf. Digit. Realty, 138 S. Ct. at 778.
29
804; Daniel, 891 F.3d at 775–76. But this is true whenever
Congress decides to waive immunity for damages claims and
is certainly not an exceptional reason to depart from
Congress’s clear intent. Whether to subject the federal fisc to
liability is a policy choice reserved to Congress and one that
we are bound to honor, not second-guess. See Doe, 37 F.4th at
88 (emphasizing that the clear-statement rule for finding a
waiver of sovereign immunity “ensures that elected officials,
not judges, choose when to open the public purse”).
E.
The USDA also directs our attention to the Seventh
Circuit’s decision in Meyers v. Oneida Tribe of Indians of Wis.,
836 F.3d 818, 826 (7th Cir. 2016), which held that the FCRA
did not unambiguously abrogate tribal sovereign immunity, 17
and suggests that the court has backed away from its position
in Bormes. The Fourth and Ninth Circuits likewise viewed
Meyers as a retreat. See Robinson, 917 F.3d at 806–07; Daniel,
891 F.3d at 774.
We disagree. As the Seventh Circuit correctly
explained in Meyers, there are important differences between
waiver of the federal government’s own immunity and
abrogation of Indian tribes’ inherent sovereignty that warrant
different analyses. See Meyers, 836 F.3d at 826–27. Indian
tribes are “‘domestic dependent nations’ that exercise inherent
17
Technically, the Seventh Circuit was analyzing
whether the Fair and Accurate Credit Transaction Act (“the
FACTA”) waived tribal immunity. See Meyers, 836 F.3d at
819–20. The FACTA amended the FCRA in 2003 and
employs the same statutorily-defined term “person” in its civil
liability provision. See 15 U.S.C. § 1681a(b), c(g)(1).
30
sovereign authority[.]” Okla. Tax Comm’n v. Citizen Band
Potawatomi Tribe of Okla., 498 U.S. 505, 509 (quoting
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831)).
Congress, however, may abrogate that sovereignty at any time
pursuant to its plenary authority over tribes. See, e.g.,
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014).
But Indian tribes are not vassal states, nor is the United
States an empire. Rather, Congress is presumed to legislate for
the benefit of Indian tribes, with all statutory language
“‘construed liberally in favor of the Indians’” and any
“‘ambiguous provisions interpreted to their benefit.’” Ysleta
Del Sur Pueblo v. Texas, 142 S.Ct. 1929, 1941 n.3 (2022)
(quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766
(1985)); see also McClanahan v. State Tax Comm'n of Ariz.,
411 U.S. 164, 174–75 (1973); Choate v. Trapp, 224 U.S. 665,
675 (1912). This canon of interpretation is robust and
displaces rules that would otherwise govern outside the Indian
law context. See, e.g., Cobell v. Salazar, 573 F.3d 808, 812
(D.C. Cir. 2009) (explaining that the Indian canons “trump[]”
and “mute[]” the application of Chevron deference) (internal
quotation marks omitted). For this reason, too, Congress must
speak with particular clarity when it chooses to abrogate tribal
sovereign immunity. See, e.g., Bay Mills, 572 U.S. at 788–90.
Application of these unique canons of construction would thus
require us to not only identify a clear statement from Congress,
but also to pause and consider whether Congress believed that
waiving tribal immunity under the FCRA would have inured
to tribes’ benefit, an inquiry that may perhaps require
specificity beyond that required to waive the United States’
immunity. See Justin W. Aimonetti, “Magic Words” and
Original Understanding: An Amplified Clear Statement Rule
31
to Abrogate Tribal Sovereign Immunity, 2020 Pepp. L. Rev. 1,
29–34 (2020).
Even applying the ordinary rules of statutory
construction, however, it is not clear that Congress intended to
abrogate tribal immunity. It is indisputable that the United
States is a “government” within the FCRA’s definition, as
evidenced by those provisions that explicitly treat “person” as
including the federal government. See 15 U.S.C.
§§ 1681a(y)(1)(D)(ii), 1681b(b). In contrast, there is not a
single mention of either “Indians” or “tribes” anywhere in the
FCRA’s text, let alone any provision that specifically treats
tribes as “persons.”
This is significant; as the Seventh Circuit correctly
noted, “there is not one example in all of history where the
Supreme Court has found that Congress intended to abrogate
tribal sovereign immunity without expressly mentioning Indian
tribes somewhere in the statute.” Meyers, 836 F.3d at 824
(quoting In re Greektown Holdings, LLC, 532 B.R. 680, 693
(E.D. Mich. 2015)) (emphasis in original). Thus, even if Indian
tribes are “governments,” 18 we have no textual basis from
18
Though we need not decide the issue, we note that the
unique status of Indian tribes may not map neatly onto the term
“government” as used in the FCRA. While “the Supreme
Court has referred to Indian tribes as ‘sovereigns,’ ‘nations,’
and even ‘distinct, independent political communities,
retaining their original natural rights,’” it has never equated
them with the federal and state “governments.” In re Whitaker,
474 B.R. 687, 695 (8th Cir. 2012). As such, the term
“government” itself may be ambiguous with respect to Indian
tribes, in which case that ambiguity must be resolved in favor
of tribal immunity.
32
which to conclude that Congress ever contemplated them as
such for purposes of the FCRA. This ambiguity, which is not
present with respect the United States, requires that we
construe the FCRA in favor of tribal immunity. Cf. Meyers,
836 F.3d at 826 (“[I]t is one thing to read ‘the United States’
when Congress says ‘government.’ But it [is] quite another . . .
to read ‘Indian tribes’ when Congress says ‘government.’”
(internal quotation marks omitted) (emphasis in original)).
In short, the Seventh Circuit’s decisions in Bormes and
Meyers are in perfect harmony given the unique status of
Indian tribes, the special rules of construction that apply in the
Indian law context, and the complete lack of any reference to
Indian tribes in the FCRA.
F.
Finally, the USDA contends that construing “person” to
include the federal government would expand the United
States’ liability beyond that provided for by the Privacy Act of
1974, codified at 5 U.S.C. § 552a, which also regulates
information about individuals contained within systems of
records maintained by federal agencies including, in some
cases, consumer credit information. 19 Where a federal agency
fails to correct inaccurate information on an individual, the
Privacy Act allows for injunctive relief, but not money
19
Similar arguments based on the Privacy Act were
raised in Bormes, Daniel, and Robinson. Although none of
these courts discussed those arguments in their opinions, we
address the issue here for the sake of completeness and for the
benefit of courts that may be presented with this same
argument in the future.
33
damages unless the failure is “intentional or willful.” 5 U.S.C.
§ 552a(g)(1), (4). The USDA’s argument, in short, is that
construing the 1996 FCRA amendments to allow for money
damages without proof of intentional or willful conduct would
upset the careful balance struck by the Privacy Act.
We find this argument unpersuasive for two reasons.
First, the Privacy Act’s remedial scheme in no way limited
Congress’s ability, more than two decades later, to revisit an
area of perceived need. To the contrary, it would have been
quite reasonable for Congress, in enacting the 1996 FCRA
amendments, to find that the Privacy Act’s remedial scheme,
with its strict limit on money damages, was insufficient to
ensure the accuracy of consumer credit information. In any
event, the mere fact that the 1996 FCRA amendments struck a
balance that may be inconsistent with the Privacy Act is no
reason to set aside clear statutory text.
Second, USDA has not identified any actual
inconsistency between the Privacy Act and the 1996
amendments. No doubt, there is some overlap between the
information covered by the two statutes, as the Privacy Act
addresses any information on an individual that is maintained
in a system of records maintained by a federal agency, see 5
U.S.C. § 552a(a)(4), which may include some consumer credit
information, as is the case with the system of records
maintained by the USDA Rural Housing Service, see 81 Fed.
Reg. 25369 (Apr. 28, 2016); 63 Fed. Reg. 38546 (Aug. 17,
1998). And the FCRA and the Privacy Act also both provide
a way to request correction of inaccurate information and
require that notice of any correction be sent to any “person” to
whom the inaccurate information was given. See 15 U.S.C.
§ 1681s-2(b)(1) (requiring a federal agency, as a “person,” to
respond to notification from a consumer reporting agency of a
34
dispute, to conduct a reasonable investigation, to correct any
inaccurate information, and then to report the correction to
both the consumer reporting agency that notified the agency of
the dispute, but also any other consumer reporting agencies to
which the inaccurate information was also provided); See 5
U.S.C. § 552a(c)(4) (requiring federal agencies to “inform any
person or other agency” to which disputed information was
previously disclosed “about any correction” made). 20
But there the overlap ends. For one thing, the
government’s duties to correct inaccurate information under
both statutes are triggered by different events. Under § 1681s-
2 of the FCRA, these duties are triggered only upon receiving
notice from a consumer reporting agency of disputed
information; notice from an individual is insufficient. In
contrast, the government’s duty to amend a record under the
Privacy Act, may only be triggered by a request from an
individual. See 5 U.S.C. § 552a(d). For another, the two
statutes impose liability on federal agencies in different ways.
Under the FCRA, a federal agency is liable for any failure to
comply with the Act’s substantive requirements, see §§ 1681n,
1681o, whereas under the Privacy Act, an individual may only
seek civil damages for failure to correct inaccurate information
20
The USDA reads the term “agency” in 5 U.S.C. § 552a(c)(4)
to include credit reporting agencies, but this is inaccurate, as
the Privacy Act explicitly defines “agency” to include only
government agencies and government corporations. See 5
U.S.C. §§ 552a(a)(1), 552(f)(1), 551(1). Credit reporting
agencies are covered as “persons” under this provision, as
§ 551(2) defines “person” to include any “individual,
partnership, corporation, association, or public or private
organization other than an agency.”.
35
if that failure leads to a determination adverse to the individual,
5 U.S.C. §§ 522a(g)(1)(C)–(D), 522a(g)(4). These important
differences reinforce our view that the Privacy Act provides no
obstacle to reading “person” in the FCRA to include the federal
government.
III.
For the foregoing reasons, we will reverse the judgment
of the District Court and remand for further proceedings not
inconsistent with this opinion.
36