ANTHONY ROBINSON v. UNITED STATES DEPARTMENT OF EDUCATION, et al.
No. 18-1822
United States Court of Appeals, Fourth Circuit
March 6, 2019
PUBLISHED. Argued: January 29, 2019. Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Judge Floyd joined.
Plaintiff - Appellant,
v.
UNITED STATES DEPARTMENT OF EDUCATION,
Defendant - Appellee,
and
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, d/b/a Fed Loan Servicing; EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN INFORMATION SOLUTIONS, INC.; TRANS UNION, LLC,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. George Jarrod Hazel, District Judge. (8:15-cv-00079-GJH)
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Appellant Anthony Robinson appeals the dismissal of his lawsuit against the U.S. Department of Education for violations of the Fair Credit Reporting Act (FCRA). The district court found that it lacked jurisdiction over the claim because Congress had not waived sovereign immunity for suits under FCRA. It is settled law that a waiver of sovereign immunity must be unambiguous and unequivocal. Because the purported waiver here falls well short of that standard, we affirm.
I.
This appeal arises from Robinson‘s claims against the Big Three credit reporting agencies—Experian, Equifax, and TransUnion—the Pennsylvania Higher Education Assistance Agency, and the U.S. Department of Education. The suit related to their treatment of an allegedly fraudulent student loan in Robinson‘s name. As all claims against the nonfederal defendants have now run their course, only Robinson‘s FCRA claims against the Department of Education remain on appeal.
The Department administers the William D. Ford Federal Direct Loan Program, through which it provides loans to students and parents for postsecondary education costs. Robinson‘s complaint detailed how the Department of Education “directly or indirectly causes credit information to be furnished to . . . consumer reporting agencies.” J.A. 13, ¶ 7 (Amended Complaint). Robinson alleged that he “discovered that there were Direct Loan student loan accounts being reported to his Experian, Equifax, and Trans Union credit reports,” J.A. 14, ¶ 8, even though he did not “authorize a student loan account to be opened in his name,” id. ¶ 9. Appellant asserted that he “has been disputing
The Department filed a motion to dismiss for want of subject matter jurisdiction based on sovereign immunity.
II.
The only question presented on appeal is whether the United States has waived sovereign immunity for suits alleging that the federal government willfully or negligently
A.
The Supreme Court has recognized that sovereign powers have “traditionally enjoyed” a “common-law immunity from suit.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). As Alexander Hamilton noted while advocating the ratification of the Constitution in Federalist 81, “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” The Federalist No. 81, at 511 (B. Wright ed., 1961) (emphasis omitted). That foundational immunity is a “necessary corollary” to “sovereignty and self-governance.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014) (internal quotation marks omitted). As such, the federal government has long enjoyed freedom from suit without consent in federal courts. See, e.g., United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1834) (Marshall, C.J.) (“As the United States are not suable of common right, the party who institutes such suit must bring his case within the authority of some act of [C]ongress, or the court cannot exercise jurisdiction over it.“).
The Department of Education thus enjoys as a federal agency a presumption of immunity from the present lawsuit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Indeed, “the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). A strong doctrine of sovereign immunity is nowhere more important than for damages claims. Money judgments against a sovereign allow “the judgment creditor” to compete with “other important needs and worthwhile ends . . . for
One way the people may exercise their will, however, is to consent to suit by waiving sovereign immunity. Meyer, 510 U.S. at 475. Damages suits against the United States, as with any litigant, may incentivize good behavior or appropriately compensate those who have been harmed. But it remains the province of the political branches, not the courts, to weigh the costs and benefits of exposing the federal government to civil litigation. “A waiver of the Federal Government‘s sovereign immunity must be unequivocally expressed in statutory text . . . and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996). In other words, waivers cannot contain an ambiguity, which “exists if there is a plausible interpretation of the statute that would not authorize money damages against the Government.” FAA v. Cooper, 566 U.S. 284, 290-91 (2012). Sovereign immunity, in short, can only be waived by statutory text that is unambiguous and unequivocal. The requirement exists, in part, to prevent the inadvertent imposition of massive monetary loss.
B.
Against this backdrop, we shall examine the purported waiver itself. Robinson contends that his claims were wrongly dismissed because the United States has indeed waived sovereign immunity to civil actions under FCRA‘s general liability provisions. See
FCRA provides a series of requirements for handling consumer credit information in order 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). Robinson claims the Department violated a provision that requires it, after being notified that a consumer disputes information relating to his credit, to “conduct an investigation with respect to the disputed information.”
This case centers on the meaning of the word “person” in § 1681n and § 1681o, specifically whether the federal government is a “person” for purposes of FCRA‘s general civil liability provisions. We begin our inquiry, as always, with the text of the statute. See Clark v. Absolute Collection Serv., Inc., 741 F.3d 487, 489 (4th Cir. 2014). Robinson attempts to isolate FCRA‘s definitional and civil liability provisions from the rest of the statute in arguing that FCRA‘s text is straightforward. FCRA‘s causes of action for willful and negligent violations apply to any “person.” See
But we do not interpret the word “person” on a blank slate. There is a “longstanding interpretive presumption that ‘person’ does not include the sovereign.” Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 780 (2000); see United States v. Cooper Corp., 312 U.S. 600 (1941) (“person” does not include United States under the Sherman Act). This canon applies even when “person” is elsewhere defined by statute. “In settling on a fair reading of a statute, it is not unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition.” Bond v. United States, 572 U.S. 844, 861 (2014). While we need not determine the exact contours of the ordinary meaning of “person” for present purposes, see
The alleged waivers in the present case, by contrast, describe only liability against a “person.” See
There is, however, one explicit waiver of sovereign immunity elsewhere in FCRA that does not apply to Robinson‘s claims. Section 1681u empowers the Federal Bureau of Investigation to obtain information from consumer reporting agencies in connection with its counterterrorism efforts. This section includes a clear waiver: “Any agency or department of the United States obtaining or disclosing any consumer reports, records, or information contained therein in violation of [§ 1681u] is liable to the consumer to whom such consumer reports, records, or information relate” for statutory, actual, and sometimes punitive damages.
This is not to say that waivers of sovereign immunity must “use magic words,” Cooper, 566 U.S. at 291, that existing waivers serve as a series of litmus tests, or even
Indeed, in the universe of possible waivers, this would be a very casual one. Yet the consequences of waiving immunity under FCRA‘s general liability provisions are anything but casual: the federal government is the nation‘s largest employer and lender. The Department represents that “[i]n fiscal year 2017, for example, the delinquent non-tax debt owed to the federal government totaled $185 billion.” Brief for Appellee, at 23. It notes that federal agencies sometimes are required by law to report delinquent debts to the consumer reporting agencies. See, e.g.,
C.
The consequences of Robinson‘s proposed reading, moreover, extend further when we consider other applications of FCRA‘s enforcement provisions. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (recognizing the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” id. at 133 (internal
And awkward it is. Take, for example, the prospect of the government bringing criminal charges against itself. The Act‘s enforcement provisions, after all, facially authorize criminal proceedings against “[a]ny person.”
FCRA also empowers several federal agencies to enforce its various provisions, including, most notably, the Federal Trade Commission and the Consumer Finance Protection Bureau. See
Regrettably the problems with Robinson‘s proposal do not end there. Robinson‘s arguments equally would expose “any government” to liability, including foreign, tribal, and state governments. The first implication would require courts to compromise treaties and to undermine principles of international comity. See Samantar v. Yousuf, 560 U.S. 305, 311-25 (2010) (describing common-law and statutory immunities afforded to foreign governments). The second, to cast aside a history of tribal immunity. See Bay Mills Indian Cmty., 572 U.S. at 788-91 (discussing tribal sovereign immunity). The third, to ignore constitutional limits on federal abrogation of state sovereign immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47, 72 (1996) (holding that Congress lacks the power to abrogate state sovereign immunity under the Commerce Clause).
The Seminole Tribe decision, in fact, came down not long before Congress amended the Act that Robinson now contends waives governmental sovereign immunity. See Consumer Credit Reporting Reform Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-426. Robinson would therefore have us suppose that Congress, in an
We are not, of course, required to reach any of those confounding problems Robinson‘s reading presents in the instant case. But we should not interpret the statute today in a way that will create serious new difficulties tomorrow. The statute bears no indicia of congressional intent to bring about such a bevy of implausible results, let alone an unambiguous and unequivocal intent to do so.
Faced with abundant evidence from FCRA‘s text and structure, Robinson argues that FCRA‘s enforcement provisions must apply to the federal government because the federal government is a person under several of FCRA‘s substantive provisions. Cf. Bormes, 759 F.3d at 795 (“The United States concedes that it is a “person” for the purpose of [FCRA‘s] substantive requirements.“). But the substantive and enforcement provisions in FCRA are not one and the same. All of the problems discussed above relate to the statute‘s enforcement provisions. And Robinson‘s argument does not even begin to
Moreover, just as the ordinary meaning of “person” has always applied to FCRA‘s enforcement provisions, the statutory definition of “person” has always applied to FCRA‘s substantive provisions. To take but one example, FCRA § 604(3)(D) specifically provided that consumer reporting agencies could give information to a “person” for “a determination of the consumer‘s eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant‘s financial responsibility or status.” Fair Credit Reporting Act, Pub. L. No. 91-508, 84 Stat. 1127, 1129 (1970). Who, other than a government, would be required by law to use credit information to determine eligibility for government benefits? Our reading of the word “person” thus does not create a textual anomaly, but rather reflects a holistic statutory view that undermines Robinson‘s attempt to transport the meaning of “person” from FCRA‘s substantive measures to its enforcement provisions.
Both parties also raise arguments by analogizing FCRA‘s statutory scheme to that of other federal statutes, drawing on its general purposes, and plucking out various tidbits from its legislative history. But we do not rest our opinion on those bases. We think that these arguments, at best, are of decidedly marginal relevance and secondary importance. FCRA‘s text and structure make clear that no unambiguous and unequivocal waiver of sovereign immunity has taken place.
D.
It is true that the Seventh Circuit initially adopted the view that FCRA did set forth a waiver of federal sovereign immunity. Bormes, 759 F.3d at 796. But when faced with the actual consequences of that ruling, the Seventh Circuit retreated from Bormes by upholding tribal sovereign immunity under FCRA, even though federal and tribal governments equally qualify as “any government” under Bormes’ reading of the statute. Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818, 823-27 (7th Cir. 2016). Reading “any government” to allow suits against tribes, in the view of Meyers, would be “shoehorning” a tribal immunity waiver where it failed utterly to fit. Id. at 827. “But when it comes to sovereign immunity, shoehorning is precisely what we cannot do.” Id. As the Ninth Circuit recognized in Daniel, the Seventh Circuit‘s logic regarding tribal sovereign immunity should apply equally to the United States. 891 F.3d at 774.
III.
AFFIRMED.