Wayne Talley v. AGRI

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2123
W AYNE T ALLEY,
Plaintiff-Appellee,
v.
U NITED S TATES D EPARTMENT OF A GRICULTURE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 705—Wayne R. Andersen, Judge.
A RGUED D ECEMBER 8, 2009—D ECIDED F EBRUARY 12, 2010
Before E ASTERBROOK, Chief Judge, and R OVNER and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. Any “person” who will-
fully or negligently fails to comply with the Fair Credit
Reporting Act is liable for damages. 15 U.S.C. §§ 1681n(a),
1681o(a). One of the Act’s requirements is that
lenders report borrowers’ payment history accurately
to credit agencies. 15 U.S.C. §1681s–2. The Department of
Agriculture violated that requirement by reporting that
2 No. 09-2123
Wayne Talley is behind on a loan that has been paid off.
Talley complained four times to Trans Union, a credit
bureau, which asked the Department whether Talley
was indeed delinquent. All four times, someone at the
Department investigated, concluded that the loan had
been repaid, and told Trans Union that Talley had
satisfied all of his obligations. Trans Union then cor-
rected Talley’s credit history—and the next month the
Department again told Trans Union that Talley was
tardy in repaying an outstanding loan. Butting your
head against a bureaucratic wall is no fun. The
ongoing falsehoods hurt Talley’s credit rating, so he
filed this suit.
The Department does not deny that it violated the Act
by telling Trans Union that Talley is a deadbeat, when
he isn’t, but it contends that he is not entitled to dam-
ages. The only remedy available, the Department main-
tains, is prospective relief—perhaps under the Privacy
Act, 5 U.S.C. §552a, or the Administrative Procedure
Act, 5 U.S.C. §702. Talley does not much fancy prospec-
tive relief, which would not redress his injuries.
According to the Department, sovereign immunity
prevents any financial award. As the district court saw
things, that position is embarrassed by the definition of
“person” in §1681a(b): “any individual, partnership,
corporation, trust, estate, cooperative, association, gov-
ernment or governmental subdivision or agency, or other
entity.” (Emphasis added.) To this the Department
rejoins that, when §1681a(b) was enacted, the damages
sections of the Act covered only “consumer reporting
No. 09-2123 3
agenc[ies]” and “user[s] of information.” Sections 616
and 617 of Pub. L. 91-508, 84 Stat. 1114, 1134 (1970).
When sections 1681n and 1681o were extended to all
“persons” in 1996 (§2412 of Pub. L. 104-208, 110 Stat.
3009–446), the definition of “persons” was unchanged. This
leads the Department to insist that Congress and the
President may not have realized that they were
exposing the United States to financial liability—not
only actual but also punitive damages, see §1681n(a)(2)—
plus the potential for civil suits by states, §1681s(c),
and criminal prosecution of any person who “obtains
information on a consumer from a consumer reporting
agency under false pretenses”, §1681q. And without
proof that Congress opened the Treasury to financial
awards, the argument wraps up, sovereign immunity
prevails. See Library of Congress v. Shaw, 478 U.S. 310
(1986); Employees v. Missouri Department of Public Health,
411 U.S. 279 (1973). The district judge concluded that
§1681a(b) is clear enough. 2007 U.S. Dist. L EXIS 50388
(N.D. Ill. July 12, 2007). After a bench trial, the court
awarded Talley $10,000 in compensatory damages plus
$20,055 in attorneys’ fees. 2009 U.S. Dist. L EXIS 8725
(N.D. Ill. Feb. 4, 2009).
One jurisdictional issue requires discussion at the
outset. (Others must be postponed until some ground-
work has been laid.) The judgment entered by the
district court reads: “[P]laintiff’s motion to adopt
findings of fact and conclusions of law is granted. Plain-
tiff’s petition for attorneys fees and costs is granted.” This
does not comply with Fed. R. Civ. P. 58. A judgment
4 No. 09-2123
must state the relief to which the prevailing party is
entitled—and, to ensure that it does, the judge must
review the draft before its entry. Granting motions
differs fundamentally from awarding relief. This judg-
ment not only fails to mention relief (the figures we
set out above come from the judge’s opinions) but also
shows no signs of review and approval by the judge;
it bears the typed name (sans signature) of a deputy
clerk. Noncompliance with Rule 58 is common in the
Northern District of Illinois, despite frequent reminders
from this court. See, e.g., Rush University Medical Center
v. Leavitt, 535 F.3d 735 (7th Cir. 2008).
“If courts are to require that others follow regular
procedures, courts must do so as well.” Hollingsworth v.
Perry, No. 09A648 (U.S. Jan. 13, 2010), slip op. 16–17.
Because the parties agree that proceedings are over in
the district court, the failure to enter a proper judg-
ment does not prevent an appeal. Bankers Trust Co. v.
Mallis, 435 U.S. 381 (1978). We hope that the district
judge’s failure to perform his ministerial duties will not
cause Talley any problems when he tries to collect.
(Talley must submit a judgment as part of the payment
process. 31 C.F.R. §256.12(a); see also 28 U.S.C. §2414.
We trust that the district court will correct its judgment
if greater specificity is necessary to enforcement.)
As it happens, the district court’s jurisdiction and ours
are in question for other reasons: The Tucker Act’s alloca-
tion of cases between district courts and the Court of
Federal Claims, and between the regional circuits and the
Federal Circuit. See 28 U.S.C. §§ 1295(a)(2), 1346(a), 1491(a).
No. 09-2123 5
Before turning to those questions, however, we need to
decide whether the Tucker Act plays any role in this
suit—and before asking that question we need to be sure
just what argument the Department of Agriculture is
presenting.
After reading its briefs, we understood the Department
to contend that federal agencies are not “persons” for the
purpose of the Fair Credit Reporting Act, because
§1681a(b), though admirably clear, was enacted before
the amendment extending §1681n and §1681o to all
“persons.” Giving the sequence of enactment the effect
of making the Act inapplicable to the national (and
state) governments would mean, however, that “govern-
ment or governmental subdivision or agency” in §1681a(b)
had no legal effect, unless, every time Congress amends
the Act, either the statute or its legislative history con-
tains an express declaration that the original definition
of “person” applies to the Act’s amended as well as its
original version. Because Congress need not add “we
really mean it!” to make statutes effectual, and because
courts don’t interpret statutes to blot out whole phrases,
that line of argument had poor prospects. See, e.g.,
Swain v. Pressley, 430 U.S. 372, 378–79 & n.11 (1977);
Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980) (“it
would be a strange canon of statutory construction
that would require Congress to state in committee
reports or elsewhere in its deliberations that which is
obvious on the face of a statute”).
At oral argument, however, counsel for the govern-
ment conceded that, by virtue of §1681a(b), all sub-
6 No. 09-2123
stantive requirements that the Fair Credit Reporting Act
imposes on any “person” apply to the United States and
its agencies. Counsel told us that the only dispute
concerns remedy: although 5 U.S.C. §702 may waive
the United States’ sovereign immunity for prospective
relief, there is no equivalent waiver for money damages.
To be sure, the Act says that damages are available, but
the sections of the Act that authorize financial awards
do not say whether (and, if so, how) they apply to units
of government. The Department’s argument, in other
words, is that the Act does not meet the Supreme Court’s
standards for financial relief against the Treasury. Deci-
sions such as United States v. Testan, 424 U.S. 392, 398
(1976), and United States v. Mitchell, 463 U.S. 206, 216–17
(1983), say that damages may be awarded against the
United States only if Congress does three things: (1) create
a substantive right; (2) mandate money damages as
compensation for a violation; and (3) expressly author-
ize that relief against the United States. Section 1681a(b)
in conjunction with §1681s–2 does the first of these
things; §1681n(a) and §1681o(a) do the second; but
nothing in the Fair Credit Reporting Act does the
third, the Department contends.
To put the Department’s argument in this way, how-
ever, poses the question: Why must the provision au-
thorizing an award against the United States be in the
Fair Credit Reporting Act? The Tucker Act is general
legislation waiving sovereign immunity, and authorizing
money damages, for any “civil action or claim against the
United States . . . founded either upon the Constitution,
or any Act of Congress”. If the plaintiff wants $10,000 or
No. 09-2123 7
less, the suit belongs in a district court, §1346(a)(2); other-
wise it belongs in the Court of Federal Claims, §1491(a)(1).
Testan and Mitchell stress that the Tucker Act does not
itself create any substantive obligation or mandate
money damages as compensation for a violation of a
substantive obligation. But if some other statute does
those things, then the Tucker Act waives sovereign im-
munity. Magic language is unnecessary; all that’s needed
is a fair inference that the substantive statute requires
the United States to pay for the harm it inflicts. See
United States v. White Mountain Apache Tribe, 537 U.S. 465,
472–73 (2003). The Fair Credit Reporting Act satisfies
that standard.
After oral argument, we invited the parties to
file supplemental briefs addressing the question
whether the Tucker Act supplies the authorization that
the government contends is missing from the Fair Credit
Reporting Act. The Department of Agriculture responded
by arguing that the Fair Credit Reporting Act has (implic-
itly) superseded the Tucker Act. An argument about
implicit repeal is a tough row to hoe, for the Tucker Act
is available unless a later statute unambiguously demon-
strates that it is not. See Preseault v. ICC, 494 U.S. 1, 12–16
(1990); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017–19
(1984); Regional Rail Reorganization Act Cases, 419 U.S. 102,
126–36 (1974). To say that supersession is implicit is to
say, one might suppose, that it is anything but “unam-
biguous.” That’s where we come out in the end, but
the details of the Department’s argument require some
attention.
8 No. 09-2123
According to the Department of Agriculture, 15 U.S.C.
§1681p displaces the Tucker Act by providing that “[a]n
action to enforce any liability created under” the Fair
Credit Reporting Act “may be brought in any appropriate
United States district court, without regard to the
amount in controversy, or in any other court of competent
jurisdiction.” Under the Tucker Act, by contrast, district
courts hear only claims for $10,000 or less; bigger suits
go to the Court of Federal Claims. By providing for juris-
diction of all suits in the district courts, the Department
insists, the Fair Credit Reporting Act partially repeals the
Tucker Act. There are two problems with this line of
argument.
First, no one could call §1681p an “unambiguous”
modification of the Tucker Act, to which §1681p does not
refer by name or citation. The statute at issue in
the Regional Rail Reorganization Act Cases created a special
three-judge district court to hear controversies stemming
from the nationalization of the Penn Central; if, as the
Supreme Court held, that unique court did not conflict
with the Tucker Act, why would §1681p do so? To grant
jurisdiction to one court is not to withdraw jurisdiction
from another, unless the statute says that its grant is
exclusive—as §1681p does not (for it says that suit may
be brought “in any other court of competent jurisdiction”).
A grant of jurisdiction to one court does not withdraw
jurisdiction from another. Yellow Freight System, Inc. v.
Donnelly, 494 U.S. 820 (1990); Tafflin v. Levitt, 493 U.S.
455 (1990); Brill v. Countrywide Home Loans, Inc., 427 F.3d
446, 450–51 (7th Cir. 2005).
No. 09-2123 9
Second, it is easy to give effect to both §1681p and the
Tucker Act by treating §1681p’s phrase “without regard
to the amount in controversy” as superseding the alloca-
tion of large demands to the Court of Federal Claims. Then
all suits under the Fair Credit Reporting Act may be
litigated in a district court, while the Tucker Act
remains available as a waiver of sovereign immunity.
Doubtless this was not the principal reason for the lan-
guage of §1681p. In 1970, when the first version of the
Fair Credit Reporting Act entered the United States Code,
there was an amount-in-controversy requirement for
federal-question suits as well as diversity suits. In 1980
the jurisdictional minimum for federal-question cases
was rescinded. Section 2(a) of Pub. L. 96-486, 94 Stat.
2369 (1980). The many statutes, such as §1681p, that had
authorized low-stakes federal-question suits were left in
place. But that history does not, at least need not, imply
that the phrase “without regard to the amount in con-
troversy” has no continuing effect; the meaning of a
statute depends on what it says, not on what lawmakers
foresaw. See, e.g., Dodd v. United States, 545 U.S. 353 (2005).
Thus there are two possibilities. One is that §1681p
leaves the Tucker Act unaffected because it does not
mention that statute; the other is that it alters the alloca-
tion of suits between district courts and the Court of
Federal Claims. No sensible understanding of the door-
opening language in §1681p revokes the Tucker Act’s
waiver of sovereign immunity for statutory claims.
The Department of Agriculture relies on a series of
decisions from the Federal Circuit holding that a grant of
10 No. 09-2123
jurisdiction to federal district courts implies the absence
of jurisdiction in the Court of Federal Claims—and hence,
the Department insists, the negation of any waiver of
sovereign immunity. See Blueport Co. v. United States,
533 F.3d 1374 (Fed. Cir. 2008); Taylor v. United States, 310
Fed. App’x 390 (Fed. Cir. 2009). The Department
misreads these decisions. Blueport concludes that the
Digital Millennium Copyright Act does not mandate
payment by the United States and thus lacks a condition
to relief under the Tucker Act; it does not hold that a
grant of jurisdiction to a district court revokes the
waiver of sovereign immunity if Congress has otherwise
authorized an award of money damages. And Taylor
concludes that Title VII of the Civil Rights Act of
1964, which permits employment-discrimination claims
against the United States to be litigated in district courts
without regard to the amount in controversy, is incom-
patible with litigation in the Court of Federal Claims; it
does not hold that a grant of authority to a district court
undoes a waiver of sovereign immunity and thus
frustrates effectual relief in any court. Taylor and similar
decisions in the Federal Circuit take the approach laid
out two paragraphs above (the one beginning “Sec-
ond. . .”); they do not hold that a grant of general juris-
diction to district courts means that an injured party
must be turned away empty-handed.
A few other arguments can be dealt with briefly.
The statute of limitations for suits under the Tucker Act
is six years, 28 U.S.C. §2401(a), while the Fair Credit
Reporting Act imposes a limit of two years from
No. 09-2123 11
discovery of the violation, plus a statute of repose at
five years. 15 U.S.C. §1681p. The Department contends
that this difference shows that the Tucker Act cannot be
applied to suits under the Fair Credit Reporting Act. Yet
different statutes of limitations are common in federal
practice; the rule is that the more specific limit prevails, not
that a short limit cancels out any substantive statute. See
United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1
(2008); United States v. A.S. Kreider Co., 313 U.S. 443, 447
(1941). Talley filed this suit less than two years after the
violation, so he has satisfied all timeliness requirements.
The Fair Credit Reporting Act allows damages for
negligent falsehoods. 15 U.S.C. §1681o. The Department
deems negligence a form of liability in tort and notes that
tort suits must proceed under the Federal Tort Claims
Act, 28 U.S.C. §§ 2671–80, rather than the Tucker Act.
This line of argument is unsound because a claim under
§1681o is not one in tort. Negligence is a failure to
exercise reasonable care, which can lead to statutory as
well as common-law liability. Some torts (such as tres-
pass) use a strict-liability approach under which the
defendant’s care is unimportant; some (such as fraud)
depend on proof of intentional wrongdoing; still others
can be established by negligence. But to show that tort
law uses all of these approaches is not remotely to
show that any statutory claim that depends on any of
them must be a tort, and thus outside the Tucker Act.
By that logic, the Tucker Act would not apply to any
statutory claim, for all statutes use one or more of strict
liability, bad intent, or failure to take appropriate pre-
cautions.
12 No. 09-2123
The Tucker Act allows money damages but not
other forms of relief, such as injunctions and declaratory
judgments. At least one decision suggests that the
Tucker Act does not authorize punitive damages. Bowen
v. Massachusetts, 487 U.S. 879, 905–06 n.42 (1988). See also
Department of Energy v. Ohio, 503 U.S. 607 (1992). But the
Fair Credit Reporting Act says that courts may award
punitive damages for willful violations. 15 U.S.C.
§1681n(a)(2). According to the Department of Agriculture,
this must mean that the Fair Credit Reporting Act
displaces the Tucker Act. As we see things, however, it
means only that punitive damages are unavailable
against the United States unless the Tucker Act authorizes
them. Statutes waiving sovereign immunity often limit
recovery to actual loss; the Federal Tort Claims Act is
an example. 28 U.S.C. §2674 ¶1. That a substantive
statute allows punitive damages does not make the
waiver of sovereign immunity for compensatory
damages vanish for the Tucker Act any more than it
does for the Federal Tort Claims Act. See also Werner v.
Department of the Interior, 581 F.2d 168 (8th Cir. 1978).
Having decided that the Tucker Act waives sovereign
immunity for compensatory-damages claims under the
Fair Credit Reporting Act, we must attend to two final
jurisdictional issues: First, does an award of attorneys’
fees count toward the $10,000 maximum under 28
U.S.C. §1346(a)(2)? Second, does appellate jurisdiction lie
in the Federal Circuit rather than this court?
If we are right in concluding above that the Fair Credit
Reporting Act permits suits against federal agencies to
No. 09-2123 13
proceed in district court without regard to the amount in
controversy, then jurisdiction is secure. The district court
had subject-matter jurisdiction under 28 U.S.C. §1331 and
15 U.S.C. §1681p, while we have jurisdiction under 28
U.S.C. §1291. But suppose that this is wrong. Jurisdiction
remains.
The Tucker Act permits district courts to entertain a
“civil action or claim against the United States, not ex-
ceeding $10,000 in amount”. 28 U.S.C. §1346(a)(2). The
district court’s award of compensatory damages to
Talley is exactly $10,000, which is proper under this
language. The district judge also awarded attorneys’ fees,
as 15 U.S.C. §1681n(a)(3) and §1681o(a)(2) permit. When
attorneys’ fees are part of damages, they count toward the
$10,000 limit, see Graham v. Henegar, 640 F.2d 732, 735–36
(5th Cir. 1981), just as attorneys’ fees as damages count
toward the $75,000 amount-in-controversy requirement
for diversity jurisdiction. See Hart v. Schering-Plough Corp.,
253 F.3d 272 (7th Cir. 2001); Gardynski-Leschuck v. Ford
Motor Co., 142 F.3d 955, 958–59 (7th Cir. 1998). But attor-
neys’ fees as part of costs do not count toward such
thresholds, any more than the costs themselves do. Ibid.
The Fair Credit Reporting Act authorizes a district
court to award “the costs of the action together with
reasonable attorney’s fees”. 15 U.S.C. §§ 1681n(a)(3),
1681o(a)(2). This implies that fees are classified with
costs. The amount in controversy, we explained in
Gardynski-Leschuck, is how much it would take to redress
the plaintiff’s injury when the suit begins. What happens
during the course of litigation does not change the
14 No. 09-2123
original stakes. If the United States had tendered $10,000
to Talley before this suit got under way, that would have
satisfied his claim and avoided the attorneys’ fees he
incurred in order to pursue the litigation; only pre-suit fees
logically should be treated as part of the damages. The
amount awarded to Talley compensates him for the
expenses of counsel during the litigation and therefore
does not count toward the $10,000 any more than the
costs of litigation would count.
This leaves only appellate jurisdiction—and though it
may seem strange to reach last an issue that is a precondi-
tion to entertaining the appeal at all, the only way to
determine what role this court plays has been to deter-
mine whether and how the Tucker Act applies. We
wrote in Citizens Marine National Bank v. Department of
Commerce, 854 F.2d 223, 225 (7th Cir. 1988), that if juris-
diction in the district court depends “in whole or in
part” on the Tucker Act, then the appeal belongs to the
Federal Circuit under 28 U.S.C. §1295(a)(2). Jurisdiction
in a different circuit would lead to a transfer under
28 U.S.C. §1631. See United States v. Mottaz, 476 U.S.
834, 848–49 n.11 (1986).
Citizens Marine National Bank was decided before we
concluded that sovereign immunity does not diminish a
district court’s subject-matter jurisdiction. See United
States v. Cook County, 167 F.3d 381 (7th Cir. 1999); Collins
v. United States, 564 F.3d 833, 837 (7th Cir. 2009) (col-
lecting other decisions rendered after Cook County). In
recent years the Supreme Court has been emphatic that
subject-matter jurisdiction refers to a tribunal’s adjudica-
No. 09-2123 15
tory competence, and that rules affecting how the tribunal
handles litigation, and what remedies are available,
do not concern jurisdiction. See, e.g., Union Pacific R.R. v.
Brotherhood of Locomotive Engineers, 130 S. Ct. 584 (2009);
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006); Kontrick v.
Ryan, 540 U.S. 443 (2004). We recognized in Collins that
some other courts of appeals continue to call sovereign
immunity a “jurisdictional” doctrine, but we also noted
that those courts have not addressed the arguments
presented in Cook County or the Supreme Court’s
recent efforts to define more precisely the proper scope
of the phrase “subject-matter jurisdiction.” See also
Grable & Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing, 545 U.S. 308 (2005) (subject-matter juris-
diction does not depend on existence of a right of action
for damages).
If a waiver of sovereign immunity is indispensable to
jurisdiction, then when the plaintiff seeks damages juris-
diction must rest on the Tucker Act, which in turn
directs appeals to the Federal Circuit. But if, as we held
in Cook County and its successors, statutes such as 28
U.S.C. §1331 and 15 U.S.C. §1681p supply subject-matter
jurisdiction whether the defendant is private or public,
then subject-matter jurisdiction need not rest on the
Tucker Act even in part. A plaintiff is “absolute master
of what jurisdiction he will appeal to.” Healy v. Sea Gull
Specialty Co., 237 U.S. 479, 480 (1915); Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 n.6
(1986). Talley appealed to §1331 and §1681p; he
did not invoke the Tucker Act as a grant of subject-matter
jurisdiction. The Tucker Act might have been used for
16 No. 09-2123
jurisdiction; it is both a grant of jurisdiction and a waiver
of sovereign immunity. But if the plaintiff elects to use
the latter without the former, then jurisdiction does
not arise under the Tucker Act. This court therefore
has appellate jurisdiction.
A FFIRMED
2-12-10