FAIR CREDIT REPORTING ACT-SOVEREIGN IMMUNITY

September 15th, 2022 by Rieders Travis in 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.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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