ORAL ARGUMENT REVIEW: Dep't of Agriculture Rural Development Rural Housing Service v. Kirtz (22-846) - 11/06/2023


"Certainty is an illusion ..."
Honoured Citizen
Whoa boy. This one is ... a doozy. A confusing doozy. My brain twisted in knots while I was reading the oral argument so I'm going to do my best to lay this out in a non-confusing way but my apologies if I fail!

First, a primer on the subject matter. This is a case about sovereign immunity and whether or not it was waived by Congress when they passed a particular law. As a result, you need to understand a little bit about sovereign immunity! The idea behind comes from the fact that historically courts gained their authority from the sovereign - typically a monarch. And the phrase "You can't sue the King!" was quite accurate. Since the legitimacy and power of the courts flowed directly from the King, it would have been theoretically absurd for the King to be sued in his own courts. Hence, the idea of sovereign immunity was born. When the United States came into being the idea of sovereign immunity came along with our common law system. The sovereign was no longer a monarch, but the United States itself. And to this day, the sovereign immunity still applies, and you cannot sue the United States ... unless the United States consents to being sued. That actually happens more than you might think - there are a lot of laws, such as the Federal Tort Claims Act, that authorize suit against the United States when a government employee commits a tort against someone, for example. These laws are a recognition that with a big government that is doing a lot of different things, there are going to be torts committed under color of law, and it would be undesirable for people to just have to deal with it with no legal recourse.

Now, waiving sovereign immunity is a pretty big deal - the status quo, again, is that you can't sue the United States without consent. As a result, the courts want to be very careful that immunity is not waived accidentally or in ambiguous situations. As a result, in order to find a waiver of sovereign immunity the courts require that a statute make a clear and unequivocal waiver of sovereign immunity - it can't be a maybe, it can't be ambiguous, it can't be "squint hard and you could argue this is a waiver". The statute that waives sovereign immunity needs to do it very, very clearly.

The case here involves the Fair Credit Reporting Act, which includes a provision that authorizes civil liability for violations of the act. That civil liability provision extends to "any person who fails to comply ...". And the general definitions that are part of the statute specifies that the term "person" includes government entities. So far, so good ... but if this case was that easy, it wouldn't be in the Supreme Court, so let's take a look at what the arguments on this case actually are.

First, the question presented here is pretty straight forward: "Whether the civil-liability provisions of the Fair Credit Reporting Act unequivocally and unambiguously waive the sovereign immunity of the United States." While the District Court initially found that sovereign immunity was not waived clearly and unambiguously by the FCRA, the Third Circuit Court of Appeals found on appeal that it was, leading to this appeal to the Supreme Court.

In the normal course of events, statutory interpretation would make this very clear. The definition of "person" found in the main definition section of the FCRA would apply to the use of "person" found elsewhere in the statute, and since "person" included "government entities," any part of the statute that authorized a suit against a "person" would necessarily be viewed as authorizing suit against the government. This was very clearly the position of Justice Kagan during the argument, and she repeatedly tried to drive home the point that in her mind, this is a simple issue of statutory interpretation.

So basic does this argument seem that it almost seems like there is no counter argument, right? Well of course it couldn't be that easy. The lawyer for the government entity involved in this case made an argument that - frankly - is about as legalistic as you can get. Sure, the government says, this statute includes the government amongst the entities that can be sued ... but it doesn't say a *whit* about sovereign immunity anywhere at all. If it doesn't specifically mention sovereign immunity, this argument goes, then there can be no clear and unambiguous waiver of sovereign immunity. You have to read in an implied waiver of sovereign immunity into the statute from the fact that the definition of "person" includes government entities. However, this doesn't work, the government says, because including the government in the class of entities that can be sued for violation of the statute doesn't remove from the government any defense that would traditionally be available to them ... and that includes the defense of sovereign immunity.

There was a lot of pushback from numerous Justices on this point - and I have to confess I find this a bit nonsensical. Sovereign immunity is not usually viewed as just another defense, although in many ways that is indeed how it functions. The reason it doesn't typically function that way, however, is that it is typically extremely clear whether a suit against the sovereign in any given context is allowed or is not. The government in this case is essentially arguing that the statute contemplates the ability to file a lawsuit, but the government nonetheless has the right to claim sovereign immunity after the fact, and this is just ... not how that process usually works. It would be much more common to say that authorizing the suit - especially in a situation like the FCRA where an amendment to the law expanding the obligations of government entities under FCRA and in which the definitions were adjusted in such a way as to seemingly make a suit against the government possible - should function as a waiver of sovereign immunity.

Not everyone agrees. Justice Kavanaugh actually was the most vigorous in seeming to go against this position, arguing that precedent would require a clear statement waiving immunity, and that would generally require stating the waiver not just in a general definitions section, but also in the section that expressly authorizes the suit. Many of the Justices disagreed, saying that no specific form is necessary to accomplish the waiver, and that there was plenty of evidence in this statute that government liability was intended. Kavanaugh was so strongly against that position that he actually went to one of the least authoritative sources I've ever seen cited in a statutory interpretation question of the Supreme Court ... he didn't just try to cite legislative history, he tried to cite a Congressional Budget Office review of the original legislation, arguing that the CBO did not account for any additional governmental liability as a result of this statute, suggesting that the CBO didn't anticipate the government being sued under the provision. Justice Scalia would probably be rolling in his grave, because this is far, far off the beaten path of authoritative sources. So unusual was this argument that Justice Jackson actually cut in and responded directly to Justice Kavanaugh to suggest that this wasn't an authoritative source. It is very rare for a Justice to argue directly with a Justice ... usually if they are going to do that, they at least do it by using the poor lawyer standing at the podium as a proxy and argue with each other indirectly through comments to the lawyer that is standing in front of them.

There is also a stretch of the argument that deals with criminal liability under the statute, which presents a problem for the Respondent in this case. The criminal liability section also uses the term "person," and if the definition found in the statute includes "government entities" you produce a bit of an absurdity - the United States prosecuting itself criminally. Surely that can't be right, and Chief Justice Roberts focuses pretty strongly on this in his arguments, seeming to come down in favor of the government's argument that sovereign immunity was not waived in this case. Justice Sotomayor in particular tries to rebut this position by pointing out that similar provisions are found in numerous laws that define "person" in the same way, and everyone understands that this doesn't authorize something ridiculous like the US prosecuting itself. Instead, the lower courts know full well how to ignore provisions that are being used for illogical ends, and there is no real danger of the US trying to prosecute itself under the statute.

I think in the end that the Court is going to find that there is a waiver here, and I think it is going to be a fairly odd mix of Justices. Sotomayor, Kagan, and Jackson I think will definitely all be on the "pro suit" side. I think Justices Gorsuch and Barrett will be with them, and I think you may possibly see one or both of Thomas and Alito join as well. On the other side, from their stated positions I think that Roberts and Kavanaugh will definitely be on the other side of this, seeking to uphold sovereign immunity in this case. In the end, though, I think sovereign immunity will be seen as validly waived, with either a 5-4, 6-3, or 7-2 decision.
Lloen is this really what you like to do for fun?

I'm not judging I'm just really curious
Honestly, I'm with the government on this one. It would be very easy for whoever wrote the section giving liability to every person to forget that, earlier in the statute, a non-standard definition of person was assigned. Also, the definition includes government entities, but doesn't explicitly mention the United States. It could mean state or local governments or government-owned corporations. I really don't see an intentional waiver anywhere here, but I haven't looked at all the evidence.
Honestly, I'm with the government on this one. It would be very easy for whoever wrote the section giving liability to every person to forget that, earlier in the statute, a non-standard definition of person was assigned. Also, the definition includes government entities, but doesn't explicitly mention the United States. It could mean state or local governments or government-owned corporations. I really don't see an intentional waiver anywhere here, but I haven't looked at all the evidence.

This case gave me a headache lol I'll be curious to see (1) who ends up writing the majority opinion, and (2) if they can manage to make clear the rationale if in fact it comes out as I think it will from the way the arguments went. Because there was a lot of weird ground covered in this argument!
I think the fact that they have to argue over whether it is clear or not, tends to lend to the idea sovereign immunity was not waived explicitly.