SCOTUS Hears Arguments On Government Immunity to FCRA Suits

November 13, 2023

The Supreme Court of the United States (SCOTUS) has heard arguments in a case concerning the federal government. It will determine whether the federal government maintains immunity to liability under the Fair Credit Reporting Act (FCRA). 

The arguments addressed many key issues in deciding whether the FCRA explicitly waives the government’s immunity. Most justices focused on how Congress defined the term “persons.” In the FCRA’s text, Congress defined the term as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.”

The Case

The plaintiff sued the U.S. Department of Agriculture’s (USDA) Rural Housing Authority in this case. He alleged that the agency reported a loan as delinquent despite him paying it in full. As such, he claimed that the agency violated the FCRA. The defined term for “persons” led him to claim that the USDA lacked sovereign immunity under the explicit waiver.

Initially, a U.S. District Court rejected the case. However, the Court of Appeals for the Third Circuit revived it. The Third Court also found that the definition of “person,” as written within the law, explicitly waived sovereign immunity. However, this reading conflicted with the Fourth and Ninth Circuits. The USDA appealed this decision to the Supreme Court to provide a final ruling and settle the division between Circuits.

The Progress

Several justices reviewing the case appeared swayed by the direct inclusion of “government or governmental subdivision.” However, one argument repeatedly brought up an existing 1973 precedent. This Supreme Court precedent could indicate that the waiver of sovereign immunity must become more direct.

The justices raised the question of how much money the government may have to pay if subject to FCRA litigation. According to an assistant for the Solicitor General, an existing class action against the government can answer this question. The pending outcome of this case could result in damages in the millions.

For now, the case’s fate remains uncertain, and many await the Supreme Court’s decision: Whether the government maintains sovereign immunity in the face of FCRA litigation. Regardless of the result, this case serves as a reminder for other entities to comply with the FCRA and other regulations. One way companies can ensure compliance is by working with a trustworthy background screening provider. The right partner can provide compliant and accurate reports.

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