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Sovereign immunity applies to claims against the Government . . . Sometimes

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Robinson v. Pennsylvania Higher Education Assistance Agency, et al. 2017 WL 1277429 (D. Md. April 3, 2017)

Plaintiff alleged that government student loans were fraudulently opened in his name and that he had only permitted Direct Loan to perform a credit check, not to open a loan account in his name. The parties dispute whether or not a “government or governmental subdivision or agency” in the definition of “person” includes the Department of Education, which is a federal agency.

Under the doctrine of “sovereign immunities,” the United States is shielded from suit absent consent to be sued that is “unequivocally expressed.” United States v. Bormes, 133 S.Ct. 12, 16 (2012). A waiver of sovereign immunity cannot be implied and all ambiguities are resolved in favor of the Government.

To date, neither the Supreme Court nor the Fourth Circuit has squarely ruled upon whether the FCRA waives sovereign immunity though the Supreme Court ominously noted that “since the FCRA is a detailed remedial scheme, only its own text can determine whether the damages liability Congress crafted extends to the Federal Government. See US v. Bormes at 20.

On remand, the 7th Circuit found that the FCRA waived sovereign immunity holding that the plain language of the FCRA includes the “government’ within the definition of “Person’ and that Congress need not add “we really mean it!’ to make the statute effectual. Bormes v. United States, 759 F.3d 793, 795 (7th Cir. 2014).

Judge Hazel declined to follow this reasoning finding that if Congress included the Government within the definition of “person” under the FCRA, this would mean that Government would be subject to punitive damages under Section 1681q and even criminal liability under 1681q. Based on this, the Court refused to find a clear and unequivocal waiver of sovereign immunity and held that the Court was without subject matter jurisdiction over the claim.

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