DC appeals court ruling on credit reporting violations deepens circuit split

REUTERS/Andrew Kelly
  • Decision deepens split over gov't liability under FCRA
  • Dissenting judge said question reached unecessarily

(Reuters) - A federal appeals court in Washington, D.C., ruled on Friday that government agencies can be sued under the Fair Credit Reporting Act, deepening a circuit split on the issue but drawing a sharp dissent from one judge.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that Congress waived the federal government's sovereign immunity under the law, which governs how credit agencies handle consumer information.

U.S. Circuit Court Judge Gregory Katsas wrote for the court that the law explicitly allows government agencies to be sued, agreeing with the 7th Circuit and disagreeing with the 4th and 9th Circuits, which found that the law did not waive sovereign immunity.

Katsas wrote, however, that the Federal Motor Carrier Safety Administration was not a consumer reporting agency under the law, meaning that two truck drivers could not sue the agency for providing their driving records to prospective employers.

U.S. Circuit Court Judge Robert Wilkins joined in the opinion.

Charles Stinson, an attorney for the plaintiffs, said on Friday that the defense is pleased the court ruled that the federal government can be liable for damages under the FCRA.

"But we are disappointed that the court ignored FMCSA's role as a consumer reporting agency, eliminating an important tool for truck drivers to protect their reputations and livelihoods," Stinson said.

A spokesperson for the Department of Transportation did not immediately reply to a request for comment.

U.S. Circuit Court Judge Raymond Randolph dissented from the opinion, saying the majority was wrong to weigh in on the sovereign immunity question.

"One may wonder how it can be that a statute waives the sovereign immunity of a federal agency when the statute does not even apply to the agency?" he wrote.

Randolph took aim at Katsas' concurring opinion, which explained why sovereign immunity was a jurisdictional question that had to be decided first.

Courts including the U.S. Supreme Court have said in the "clearest possible terms" that judges are not required to determine whether they have jurisdiction under a particular statute before reaching the merits of a case, Randolph said.

The case is Mowrer v. DOT, U.S. Court of Appeals for the District of Columbia Circuit, No. 19-5321.

For the truckers: Charles Stinson and Paul Cullen of The Cullen Law Firm

For the Department of Transportation: Caroline Lopez of the Department of Justice and Mark Stern of the Department of Transportation

(NOTE: This story has been updated with comment from the plaintiffs' counsel.)

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Jody Godoy reports on banking and securities law. Reach her at jody.godoy@thomsonreuters.com