Fair Credit Reporting Act

Department of Agriculture Rural Development Rural Housing Service v. Kirtz

Issues

Do the Fair Credit Reporting Act provisions 15 U.S.C. §§ 1681n and 1681o waive sovereign immunity and allow for suits against the United States government for claims brought under the act?

This case asks the Court to determine whether the Fair Credit Reporting Act (FCRA) waives the United States’ sovereign immunity to suits brought against it under the statute. The Department of Agriculture Rural Development Rural Housing Service (USDA) argues that the FCRA contains no waiver of sovereign immunity because the statute neither explicitly waives sovereign immunity nor creates a cause of action that expressly authorizes suits against the government. The USDA further contends that Congress’s intentions are unclear because the FCRA does not clearly state whether the definition of “person” includes the federal government within §§ 1681n and 1681o. Respondent Reginald Kirtz counters that the FCRA unambiguously creates a cause of action authorizing suits against federal agencies under §§ 1681n and 1681o because the FCRA’s definition of “person” in § 1681a(b), which includes government agencies, applies to §§ 1681n and 1681o. This case touches on important questions regarding what constitutes a waiver of sovereign immunity and whether courts may interpret congressional intent when making such a determination.

Questions as Framed for the Court by the Parties

Whether the civil-liability provisions of the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. unequivocally and unambiguously waive the sovereign immunity of the United States.

Reginald Kirtz took out loans from the United States Department of Agriculture Rural Development Rural Housing Service (“USDA”) and the Pennsylvania Higher Education Assistance Agency (“AES”). Kirtz v. Trans Union, LLC at 1. Kirtz closed his AES account with a balance of zero on or about June 7, 2016, and closed his USDA account with a balance of zero on or about June 7, 2018, both of which were reflected in his Trans Union credit report. Id. at 1–2.

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TransUnion LLC v. Ramirez

Issues

Should a class action lawsuit pursuing statutory damages be allowed under Article III or Federal Rule of Civil Procedure 23 when the majority of the class members did not experience harm as severe as that suffered by the named plaintiff?

This case asks the Supreme Court to determine whether Article III or the typicality requirement of Federal Rule of Civil Procedure 23 (“FRCP”) should allow a class action claiming statutory damages when most of the class members did not suffer actual injury, or an injury similar to that of the class representative. Petitioner TransUnion, LLC (“TransUnion”) argues that in order for a class in a statutory damages action to have standing under Article III, each absent class member must show common concrete injury and, if future risk constitutes the injury, must demonstrate that such risk is certainly impending. TransUnion asserts that to achieve typicality under FRCP 23, a class representative’s facts must be substantially shared with those of the rest of the class. Respondent Sergio L. Ramirez (“Ramirez”) counters that a class may show Article III injury by demonstrating that the harm caused by a statutory violation is analogous to that of common law claims. Ramirez also asserts that the typicality requirement is satisfied when a class representative shares the same interest and has suffered injury common to the absent class members. This case involves questions of how the Court should weigh the role of class actions and statutory damages in protecting consumers against the due process rights of litigants.

Questions as Framed for the Court by the Parties

Whether either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.

In February 2011, Sergio Ramirez (“Ramirez”) went to a Nissan dealership and decided to buy a new car with his wife. Ramirez v. TransUnion LLC at 1017. After running a joint credit check on Ramirez and his wife, the dealership informed Ramirez that they could not complete the purchase because his name matched one appearing on a “terrorist” list maintained by the Department of the Treasury’s Office of Foreign Assets Controls (“OFAC”).

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United States v. Bormes

Issues

Whether the Little Tucker Act enables plaintiffs to sue the United States for damages arising from violations of the Fair Credit Reporting Act.

 

Respondent James Bormes used the U.S. government’s online pay system to pay for a lawsuit that he had filed electronically. Following the transaction, the website displayed the last four digits of his credit card and the card’s expiration date. Bormes then sued the government, alleging that it had violated the Fair Credit Reporting Act ("FCRA") by displaying the expiration date. The United States argued that it had sovereign immunity with respect to claims under the FCRA because the Act did not explicitly apply to the U.S. government. When Bormes countered that he could sue the government under the Little Tucker Act, which provides a remedy for those with claims against the government of less than $10,000, the government contended that the Little Tucker Act applied only in situations where parties could not otherwise recover. In deciding this case, the Supreme Court must first determine the scope of the Tucker Acts' waiver of the United States’ sovereign immunity regarding claims brought under the Little Tucker Act for suits based on violations of the FCRA. As the country’s largest employer, creditor, and lender, the U.S. government could see a massive increase in litigation and potential liability as a result of this decision. Additionally, the Supreme Court may address how explicit Congress must act in order to exempt the federal government from liability.

Questions as Framed for the Court by the Parties

Whether the Little Tucker Act, 28 U.S.C. 1346(a)(2), waives the sovereign immunity of the United States with respect to damages actions for violations of the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.

In October 2000, the United States launched pay.gov, an online billing and payment processing service that enables consumers to use credit and debit cards to make payments to numerous government agencies. See Bormes v. United States, 638 F. Supp. 2d 958, 959 (N.D. Ill. 2009) vacated, 626 F.3d 575 (Fed. Cir. 2010). On August 9, 2008, James Bormes, an attorney, used this system to pay for a lawsuit electronically filed in the U.S.

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