Robinson v. Department of Education ( 2020 )

Cite as: 590 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
ANTHONY ROBINSON v. DEPARTMENT OF
EDUCATION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19–512. Decided April 20, 2020
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE KAVANAUGH joins,
dissenting from the denial of certiorari.
This petition presents the question whether the general
civil enforcement provisions of the Fair Credit Reporting
Act (FCRA), 15 U.S. C. §§1681n–1681o, waive the Federal
Government’s sovereign immunity for FCRA civil enforce-
ment suits. Because this important question has divided
the Courts of Appeals, I would grant review.
I
Petitioner claims to be the victim of identity theft. After
he unsuccessfully sought to remove an allegedly fraudulent
student loan from his credit history, he filed suit against
the lender—the United States Department of Education—
seeking damages for violations of the FCRA. Under the
FCRA’s general civil enforcement provisions, “[a]ny person”
who willfully or negligently fails “to comply with any re-
quirement imposed under [§1681 et seq.] is liable to [the]
consumer” for damages. §§1681n–1681o. The statute de-
fines “person” to include “any . . . government or govern-
mental subdivision or agency.” §1681a(b).
The Department of Education moved to dismiss peti-
tioner’s complaint, asserting federal sovereign immunity.
The District Court granted the motion, and the Fourth Cir-
cuit affirmed. Relying on the interpretive presumption that
“ ‘person’ does not include the sovereign,” Vermont Agency
of Natural Resources v. United States ex rel. Stevens, 529
2 ROBINSON v. DEPARTMENT OF EDUCATION
THOMAS, J., dissenting
U. S. 765, 780 (2000), the Fourth Circuit concluded that, de-
spite the statutory definition, it could plausibly read “per-
son” to not include the Federal Government. Moreover, the
court observed that the opposite interpretation would lead
to absurdities in other FCRA enforcement provisions. For
example, if the Federal Government were a “person,” it
could be liable under the FCRA for federal criminal charges.
See 917 F.3d 799, 804 (CA4 2019) (contemplating “a court’s
puzzlement upon seeing a criminal case captioned ‘United
States v. United States’ ”). And the court noted that peti-
tioner’s reading would render superfluous a more limited
sovereign-immunity waiver in one of the FCRA’s specific
civil enforcement provisions, §1681u(j), which makes “[a]ny
agency or department of the United States . . . liable to [a]
consumer” for damages when it unlawfully discloses that
consumer’s credit information to the Federal Bureau of In-
vestigation. Comparing this express language and that of
other sovereign-immunity waivers recognized by this Court
with the language of §1681n and §1681o, the Fourth Circuit
determined that the FCRA’s general civil enforcement pro-
visions do not clearly waive the Federal Government’s sov-
ereign immunity.
II
As both parties acknowledge, the Fourth Circuit’s deci-
sion in this case deepened a pre-existing Circuit split.
While the Ninth Circuit agrees that the FCRA’s general
civil enforcement provisions do not waive federal sovereign
immunity, Daniel v. National Park Serv., 891 F.3d 762
(2018), the Seventh Circuit has reached the opposite con-
clusion, Bormes v. United States, 759 F.3d 793 (2014).
Thus, borrowers of federal loans in Illinois, Indiana, and
Wisconsin have access to a cause of action against the Fed-
eral Government while borrowers with the same types of
loans in 14 other States are barred from suit.
Cite as: 590 U. S. ____ (2020) 3
THOMAS, J., dissenting
Because of the Court’s inaction, this disparity will per-
sist. Contrary to the Department’s speculation, this Circuit
split shows no signs of resolving itself. In fact, the Seventh
Circuit recently reaffirmed its position in Meyers v. Oneida
Tribe of Wis., 836 F.3d 818 (2016). In holding that the
FCRA’s general civil enforcement provisions do not abro-
gate tribal sovereign immunity, the court reaffirmed and
distinguished its earlier decision in Bormes, which recog-
nized a waiver of federal sovereign immunity. 836 F.3d, at
826. In that court’s view, the ordinary meaning of “govern-
ment,” as used in the FCRA’s definition of “person,” clearly
encompasses the Federal Government but does not include
Indian tribes. Ibid. Thus, absent intervention from this
Court, or a majority of active judges on the Seventh Circuit,
the Courts of Appeals will remain in conflict.
III
The question whether sovereign immunity has been
waived is one of critical importance to any functioning gov-
ernment, but particularly to a democratic republic. This is
especially true when it comes to suits for money damages,
because “the allocation of scarce resources among compet-
ing needs and interests lies at the heart of the political pro-
cess.” Alden v. Maine, 527 U.S. 706, 751 (1999). Were the
Federal Government to be stripped of sovereign immunity
without consent, “private suits for money damages would
place unwarranted strain on the [Government’s] ability to
govern in accordance with the will of [its] citizens.” Id., at
750–751.
These ramifications are magnified here because the Fed-
eral Government’s potential liability under the FCRA is
substantial. As the Nation’s primary student-loan lender,
it is one of the largest furnishers of credit information in
the country. According to petitioner, the Federal Govern-
ment is responsible for 90 percent of student loans nation-
wide in a market that has tripled between 2007 and 2018,
4 ROBINSON v. DEPARTMENT OF EDUCATION
THOMAS, J., dissenting
from $500 billion to a staggering $1.5 trillion. Pet. for Cert.
39. A waiver of sovereign immunity would thus have a sig-
nificant impact on the public fisc.
* * *
“One of this Court’s primary functions is to resolve ‘im-
portant matter[s]’ on which the courts of appeals are ‘in con-
flict.’ ” Gee v. Planned Parenthood of Gulf Coast, Inc., 586
U. S. ___, ___ (2018) (THOMAS, J., dissenting from denial of
certiorari) (slip op., at 1) (quoting this Court’s Rule 10(a)).
Because the question presented in this petition has divided
the Circuits and concerns a matter of great importance, it
warrants our review. I respectfully dissent from the denial
of certiorari.