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FAIR CREDIT REPORTING ACT-SOVEREIGN IMMUNITY

Kirtz v. Trans Union LLC, 2022 U.S. App. LEXIS 23684 (3rd Cir. August 24, 2022) (Krause, C.J.)  There are profound implications to throwing open the doors to the United States Treasury, so before we do, we need to be sure that is what Congress intended. Here, the District Court dismissed Appellant Reginald Kirtz’s lawsuit against the U.S. Department of Agriculture (“USDA”) for alleged violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq, because it concluded the statute did not clearly waive the United States’ sovereign immunity. The District Court was in good company, as the Courts of Appeals to have considered this issue are split down the middle, and until today, we had not yet spoken. But our best indicator of Congress’s intent is the words that it chose, and in our view, the FCRA’s plain text clearly and unambiguously authorizes suits for civil damages against the federal government. In reaching a contrary conclusion, the District Court relied on its determination that applying the FCRA’s literal text would produce results that seem implausible.  That may be, but implausibility is not ambiguity, and where Congress has clearly expressed its intent, we may neither second-guess its choices nor decline to apply the law as written. Accordingly, we will reverse and remand to the District Court for further proceedings. The government’s duties to correct inaccurate information under both statutes are triggered by different events.  Under § 1681s-2 of the FCRA, these duties are triggered only upon receiving notice from a consumer reporting agency of disputed information; notice from an individual is insufficient. In contrast, the government’s duty to amend a record under the Privacy Act, may only be triggered by a request from an individual. See 5 U.S.C. § 552a(d). For another, the two statutes impose liability on federal agencies in different ways.  Under the FCRA, a federal agency is liable for any failure to comply with the Act’s substantive requirements, see §§ 1681n1681o, whereas under the Privacy Act, an individual may only seek civil damages for failure to correct inaccurate information if that failure leads to a determination adverse to the individual, 5 U.S.C. §§ 552a(g)(1)(C)-(D)552a(g)(4). These important differences reinforce our view that the Privacy Act provides no obstacle to reading “person” in the FCRA to include the federal government.