As reported by Reuters, last week, a federal appellate court has deepened the circuit split on whether government agencies can be sued under the Fair Credit Reporting Act. The case is Mowrer v. DOT.
In a split (2-1) decision, the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1, quoting Reuters, “that Congress waived the federal government’s sovereign immunity under the law, which governs how credit agencies handle consumer information.” The opinion, written by Judge Gregory Katsas, follows the 7th Circuit, which allows suits against the government, and runs counter to the 4th and 9th Circuits. which do not.
Even though the government can face FCRA litigation in the D.C. Circuit, “Katsas wrote…that the Federal Motor Carrier Safety Administration was not a consumer reporting agency under the law.” As a result, “two truck drivers could not sue the agency for providing their driving records to prospective employers” alleging FCRA violations.
In dissent, Judge Raymond Randolph said the court should not have reached a decision on sovereign immunity asking “…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?”
The majority found that that
the government is not a “consumer reporting agency” in its administration of the [Motor Carrier Management Information] MIMS and the [Pre-Employment Screening Program] PSP. For the sake of argument, we may assume that driver-safety records are ‘consumer reports’ within the meaning of FCRA. But while the SAFE Transportation Act requires the Administration to make such records available to prospective employers, the Administration neither assembles nor evaluates the records for that purpose. To the contrary, it assembles and evaluates driver-safety records in the MCMIS…and does so to ‘support safety regulatory and enforcement activities’ required by Title 49… The Administration thus uses MCMIS data to inform its administration of the Motor Carrier Safety Assistance Program …which provides some $300 million in annual grants to states and other jurisdictions for safety-related activities…Likewise, the Administration uses MCMIS data to inform its own enforcement activity…It has assembled and evaluated MCMIS data for these purposes at least since 1998…—seven years before the SAFE Transportation Act authorized the Administration to release driver-safety records to prospective employers. And the SAFE Transportation Act simply requires the release of specified ‘reports’ that are already ‘contained in the Motor Carrier Management Information System’—namely accident reports, inspection reports with no driver-related safety violations, and inspection reports with serious driver-related safety violations…For these reasons, the Administration cannot fairly be described as regularly engaged in ‘assembling’ or ‘evaluating’ these accident and inspection reports ‘for the purpose of furnishing’ them to the drivers’ prospective employers.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More