Fair Credit Reporting Act

Written By ESR News Blog Editor Thomas Ahearn

On April 20, 2020, the Supreme Court of the United States denied a writ of certiorari review of an Appeals Court decision in the case of ROBINSON v. DEPARTMENT OF EDUCATION that the federal government can claim “sovereign immunity” from civil liability for claims brought under the Fair Credit Reporting Act (FCRA).

In ROBINSON v. DEPARTMENT OF EDUCATION, petitioner Anthony Robinson claimed a U.S. Department of Education loan was fraudulently obtained in his name as a result of alleged identity theft. He sued for monetary damages under the FCRA after unsuccessfully trying to remove the loan from his credit report.

Under the FCRA, any “person” – defined in the FCRA to include “any … government or governmental subdivision or agency” – is liable to a consumer for the greater of actual damages or statutory damages of $1,000 for willfully or negligently failing to comply with the FCRA’s civil enforcement provisions.  

The Department of Education sought to dismiss the case by claiming sovereign immunity since the federal government is not a “person” as defined by the FCRA. A Maryland District Court granted the motion and the United States Court of Appeals for the Fourth Circuit affirmed the District Court’s dismissal in March 2019.

United States Supreme Court Justice Clarence Thomas and United States Supreme Court Justice Brett Kavanaugh both dissented from the denial of a writ of certiorari review. In the dissent, Justice Thomas wrote: “Because this important question has divided the Courts of Appeals, I would grant review.”

Justice Thomas continued: “As both parties acknowledge, the Fourth Circuit’s decision in this case deepened a pre-existing Circuit split. While the Ninth Circuit agrees that the FCRA’s general civil enforcement provisions do not waive federal sovereign immunity, the Seventh Circuit has reached the opposite conclusion.”

Justice Thomas concluded in his dissent: “One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’ Because the question presented in this petition has divided the Circuits and concerns a matter of great importance, it warrants our review.”

Enacted in 1970, the FCRA 15 U.S.C. § 1681 promotes the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies (CRAs), and was intended to protect consumers from the willful and/or negligent inclusion of inaccurate information in their reports.

Employment Screening Resources® (ESR) – a leading global background check provider – offers background screening services that comply with the FCRA and other applicable laws. In 2019, ESR was named one of the top background screening firms by HRO Today Magainze. To learn more about ESR, visit www.esrcheck.com.

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