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FCRA Claims Evade Sovereign Immunity in 7th Cir.

Quick note: SCOTUS denied certiorari review of a Fourth Circuit Court of Appeals decision in Robinson v. United States Dep’t of Educ., 917 F.3d 799 (4th Cir. 2019), cert. denied 590 U. S. __ (U.S. April 20, 2020)(19-512). You can look into that case at SCOTUSblog.

This leaves unresolved a circuit split regarding whether the Fair Credit Reporting Act authorizes consumers to file civil suits against federal governmental agencies under 15 U.S.C. § 1681n and § 1681o.

So, for now, these claims are viable in Illinois, Wisconsin, and Indiana district courts, under Bormes v. United States, 759 F.3d 793 (7th Cir. 2014).

Justice Thomas penned an interesting dissent to the denial, available here.

Because of the Court’s inaction, this disparity will persist. Contrary to the Department’s speculation, this Circuit split shows no signs of resolving itself. In fact, the Seventh Circuit recently reaffirmed its position in Meyers v. Oneida Tribe of Wis., 836 F. 3d 818 (2016). In holding that the FCRA’s general civil enforcement provisions do not abrogate tribal sovereign immunity, the court reaffirmed and distinguished its earlier decision in Bormes, which recognized a waiver of federal sovereign immunity. 836 F. 3d, at 826. In that court’s view, the ordinary meaning of “government,” as used in the FCRA’s definition of “person,” clearly encompasses the Federal Government but does not include Indian tribes. Ibid. Thus, absent intervention from this Court, or a majority of active judges on the Seventh Circuit, the Courts of Appeals will remain in conflict.

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