The Biden administration faced some pointed questions from Supreme Court justices on Nov. 6 as it argued that a credit reporting statute shouldn’t be interpreted to revoke the sovereign immunity that federal agencies typically enjoy under U.S. law.
Federal and state agencies generally don’t have to fear prosecution because of the legal doctrine of sovereign immunity. The Fair Credit Reporting Act (FCRA) has provoked some debate, however, as it includes a provision allowing individuals to recover damages from a “person” who violates other aspects of the law. “Person,” under the law, is defined as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.”
The case involves a man named Reginald Kirtz, who sued after the United States Department of Agriculture and another credit reporting agency failed to investigate false reporting about his repayment of loans. Nandan Joshi, who represented Mr. Kirtz and works for Public Citizen Litigation Group, argued that the law clearly allowed the type of lawsuit that would usually be prohibited by sovereign immunity.
Benjamin Snyder, who serves as assistant to the solicitor general, asserted during arguments on Nov. 6 that the law doesn’t unambiguously preclude the United States federal government from exercising sovereign immunity. The justices responded with seemingly straightforward questions about the text, indicating that the federal government could, in fact, be sued despite the longstanding doctrine of sovereign immunity.
Justice Elena Kagan, for example, questioned why the Court could consider the meaning of person by just “plug[ging]” in the definition provided by Congress.
“There’s a person, there’s a corporation, there’s an association, there’s an enterprise, et cetera, et cetera. You can see why Congress didn’t want to say that every time Congress meant to refer to a lot of different entities,” she said. “So... but, you know, it’s statutory interpretation 101 that we take a defined term, we plug the definition in, and that’s what the meaning of the statute is.”
Mr. Snyder responded in part by saying that in this case, “you’re not asking just what do the words mean; you’re asking about the, the necessary logical implication of what Congress has done.”
Mr. Kirtz lost in a district court, which said that the FCRA did not clearly waive the federal government’s sovereign immunity. In Price v. United States, the Supreme Court ruled that “it is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it.”
Part of Mr. Snyder’s argument was that the U.S. Court of Appeals for the Third Circuit had issued a ruling clearly showing that a literal interpretation of the statute was insufficient. Although the appellate court said individuals could sue for damages, it also argued that the law shouldn’t be construed to allow the United States to be criminally prosecuted, even though a plain reading of the text would allow just that.
Chief Justice John Roberts pressed Mr. Joshi on the idea that his reading of the statute might allow the federal government to be criminally prosecuted. It’s unclear what this would look like, but would presumably entail the federal government suing itself in some capacity.
Outside the courthouse, Mr. Joshi told The Epoch Times that “Congress extended the term person to all provisions of FCRA and whether the government can be prosecuted may turn on issues that aren’t relevant to its civil liability.”
He also said that “the government should be held responsible just like any private party would be for its mistakes.”
