Dept. of Agric. Rural Dev. v. Kirtz (22-846)

argument 22-846

Dept. of Agric. Rural Dev. v. Kirtz

Supreme Court of the United States 1h 18m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the central question about sovereign immunity in the Fair Credit Reporting Act?

John G. Roberts 0:00

We'll hear argument this morning in case twenty two eight forty six, the Department of Agricultural Rural Development, Rural Housing Service

Unknown 0:07

versus Kurtz.

0:08

Mr.

Unknown 0:08

Snyder? Mr Chief Justice, and may it please the court. The question in this case is whether Congress unambiguously waived the sovereign immunity of the United States when it amended the Fair Credit Reporting Act in nineteen ninety six to provide that any person who violates FICRA's requirements is liable for money damages. The answer to that question is no. To start, there's no basis for claiming that Congress has expressly waived sovereign immunity. For all of respondents' emphasis on following the literal text of the statute, he ultimately has to concede that nothing in FICRA addresses sovereign immunity directly. Instead, respondent is asking this court to read an unwritten waiver into the statute on the theory that every time Congress creates a cause of action that applies to both sovereign and non sovereign defendants, it must implicitly intend to eliminate sovereign immunity.

Unknown 0:57

But that argument is wrong for two reasons. First, it's fundamentally inconsistent with the nature of sovereign immunity. Sovereign immunity is a defence that by definition has effect only when there is a cause of action that would otherwise impose liability.

How does the Court analyze whether Congress expressly waived sovereign immunity?

Unknown 1:11

So if every cause of action that covers a sovereign also waived that sovereign's immunity, the defence would never matter. That cannot be right. This court has therefore followed a narrower rule, under which courts may infer a waiver of sovereign immunity from a cause of action only if Congress has referred to sovereign defendants in the cause of action itself, using language that would be effectively negated if sovereign immunity remained available, and that therefore shows Congress's intent to displace the presumptively available defense. But there's nothing like that here. And as the court's decision at employees shows, The mere use of a general term defined elsewhere in the statute isn't enough to eliminate the sovereign immunity defense.

Unknown 1:51

Second, it's in any event far from clear that these causes of action apply to the United States at all. Even the Court of Appeals recognized that FRICRA's criminal provision uses person in a sense that does not include federal agencies, and it's plausible to interpret the nearby civil causes of action in the same way. I welcome the Court's questions.

Clarence Thomas 2:09

Uh Mr Snyder, the uh uh putting aside sovereign immunity uh the statute refers to defines a person as any individual, etcetera, and any government or governmental subdivision or agency. Putting aside the issue of sovereign immunity, wouldn't that suggest that it applies to uh the uh uh the US government.

Unknown 2:36

So uh we accept that that's a plausible reason.

Clarence Thomas 2:39

So if if it does that as explicitly as it does, why doesn't isn't that sufficient to waive sovereign immunity?

Unknown 2:45

So two answers to that, Justice Thomas. We don't think that um it uh unambiguously covers the United States, and I'd I'd say our argument on that front is under the court's decision in utility air, I would say that's the best decision for that part of our argument. You're asking, even if I assume that 1681 N and O use person in a sense that does cover the United States, does that also take the analytically distinct Step of waiving sovereign immunity. And so putting aside the utility air argument for a moment, on that argument, we would say no, because all the text of the statute does is create a cause of action. And it does so using a general word that on hypothesis covers both sovereign and non-sovereign defendants.

Unknown 3:29

But there's nothing necessarily implicit in that to show that Congress must have intended to waive the defenses. That all defendants covered by that cause of action would have available under ordinary background principles. So I don't think anyone would think it strange, for example, if a defendant who's covered by the plain text of the cause of action, but who violated FICRA more than five years ago were to assert a statute of limitations defense.