In this case, the plaintiff alleges that the U.S. Department of Agriculture (USDA) violated the Fair Credit Reporting Act (FCRA) by failing to investigate and correct erroneous information that it submitted to Trans Union, a credit reporting agency. As a general rule, federal agencies are immune from suit under a principle called sovereign immunity. Congress may waive sovereign immunity, however, through a statute authorizing suit. In FCRA, Congress gave consumers a right to file suit against any “person” who negligently or willfully violates the statute, and it defined “person” to include any “government or governmental subdivision or agency.” One question in this case is whether FCRA waives the government’s sovereign immunity from suit. The district court held that it does not and dismissed the case against USDA.
Public Citizen Litigation Group represented the plaintiff on appeal, arguing that FCRA waives the government’s sovereign immunity by unambiguously authorizing suit against federal agencies. In a unanimous opinion, the Third Circuit agreed with us that the FCRA’s plain text clearly and unambiguously authorizes suits for civil damages against the federal government. The court therefore ruled in favor of the plaintiff and reversed the district court’s decision.
The government then sought Supreme Court review. We prepared the respondent’s brief urging the Supreme Court to affirm the Third Circuit’s decision. The brief explains that FCRA’s text is unambiguous in authorizing an action against federal agencies. The Court will hear oral argument in November 2023.