                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-1822


ANTHONY ROBINSON,

            Plaintiff – Appellant,

      v.

UNITED STATES DEPARTMENT OF EDUCATION,

            Defendant – Appellee,

      and

PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, d/b/a Fed
Loan Servicing; EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN
INFORMATION SOLUTIONS, INC.; TRANS UNION, LLC,

            Defendants.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
George Jarrod Hazel, District Judge. (8:15-cv-00079-GJH)


Argued: January 29, 2019                                       Decided: March 6, 2019


Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.


Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz
and Judge Floyd joined.
ARGUED: Quinn Breece Lobato, LOBATO LAW LLC, Lanham, Maryland, for
Appellant. Sarah Wendy Carroll, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Joseph H. Hunt, Assistant Attorney
General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.




                                      2
WILKINSON, Circuit Judge:

       Appellant Anthony Robinson appeals the dismissal of his lawsuit against the U.S.

Department of Education for violations of the Fair Credit Reporting Act (FCRA). The

district court found that it lacked jurisdiction over the claim because Congress had not

waived sovereign immunity for suits under FCRA. It is settled law that a waiver of

sovereign immunity must be unambiguous and unequivocal. Because the purported

waiver here falls well short of that standard, we affirm.

                                             I.

       This appeal arises from Robinson’s claims against the Big Three credit reporting

agencies—Experian, Equifax, and TransUnion—the Pennsylvania Higher Education

Assistance Agency, and the U.S. Department of Education. The suit related to their

treatment of an allegedly fraudulent student loan in Robinson’s name. As all claims

against the nonfederal defendants have now run their course, only Robinson’s FCRA

claims against the Department of Education remain on appeal.

       The Department administers the William D. Ford Federal Direct Loan Program,

through which it provides loans to students and parents for postsecondary education

costs. Robinson’s complaint detailed how the Department of Education “directly or

indirectly causes credit information to be furnished to . . . consumer reporting agencies.”

J.A. 13, ¶ 7 (Amended Complaint). Robinson alleged that he “discovered that there were

Direct Loan student loan accounts being reported to his Experian, Equifax, and Trans

Union credit reports,” J.A. 14, ¶ 8, even though he did not “authorize a student loan

account to be opened in his name,” id. ¶ 9. Appellant asserted that he “has been disputing

                                             3
the Direct Loan accounts,” “[s]ince November 2011 or earlier.” Id. ¶ 10; see also J.A. 14-

15, ¶¶ 11-14. In this action, he alleged that the Department violated FCRA, specifically

15 U.S.C. § 1681s-2(b), “by failing to fully and properly investigate [Appellant’s]

disputes,” J.A. 17, ¶ 27, and “failing to review all relevant information” related to his

claim, id. ¶ 28. The complaint brought claims under 15 U.S.C. §§ 1681n and 1681o,

which provide civil causes of action for willful and negligent FCRA violations,

respectively.

       The Department filed a motion to dismiss for want of subject matter jurisdiction

based on sovereign immunity. Fed. R. Civ. P. 12(b)(1). After comparing FCRA’s

language to several recognized waivers of sovereign immunity, the district court reasoned

that FCRA’s language did not unequivocally and unambiguously waive sovereign

immunity. Robinson v. Pa. Higher Educ. Assistance Agency, No. GJH-15-0079, 2017

WL 1277429 (D. Md. Apr. 3, 2017). According to the district court, the plaintiff’s

reading of the waiver would, among other things, absurdly expose the federal government

to criminal prosecutions. The court thus granted the government’s motion and dismissed

Robinson’s claims against the Department. Id. Robinson asked the district court to

reconsider its ruling, but that motion was denied. Robinson v. Pa. Higher Educ.

Assistance Agency, No. GJH-15-0079, 2017 WL 5466673 (D. Md. Nov. 13, 2017). He

now appeals.

                                           II.

       The only question presented on appeal is whether the United States has waived

sovereign immunity for suits alleging that the federal government willfully or negligently

                                            4
violated FCRA. See 15 U.S.C. §§ 1681n-1681o. We use “FCRA” to describe the statute

as subsequently amended.

                                             A.

       The Supreme Court has recognized that sovereign powers have “traditionally

enjoyed” a “common-law immunity from suit.” Santa Clara Pueblo v. Martinez, 436

U.S. 49, 58 (1978). As Alexander Hamilton noted while advocating the ratification of the

Constitution in Federalist 81, “It is inherent in the nature of sovereignty not to be

amenable to the suit of an individual without its consent.” The Federalist No. 81, at 511

(B. Wright ed., 1961) (emphasis omitted). That foundational immunity is a “necessary

corollary” to “sovereignty and self-governance.” Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782, 788 (2014) (internal quotation marks omitted). As such, the federal

government has long enjoyed freedom from suit without consent in federal courts. See,

e.g., United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1834) (Marshall, C.J.) (“As the

United States are not suable of common right, the party who institutes such suit must

bring his case within the authority of some act of [C]ongress, or the court cannot exercise

jurisdiction over it.”).

       The Department of Education thus enjoys as a federal agency a presumption of

immunity from the present lawsuit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Indeed,

“the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463

U.S. 206, 212 (1983). A strong doctrine of sovereign immunity is nowhere more

important than for damages claims. Money judgments against a sovereign allow “the

judgment creditor” to compete with “other important needs and worthwhile ends . . . for

                                             5
access to the public fisc.” Alden v. Maine, 527 U.S. 706, 751 (1999); see Office of Pers.

Mgmt. v. Richmond, 496 U.S. 414, 428-32 (1990) (applying similar rationale to damages

against the federal government). Instead, as the Framers recognized, the allocation of

resources must be left to the will of the people. Alden, 527 U.S. at 751.

       One way the people may exercise their will, however, is to consent to suit by

waiving sovereign immunity. Meyer, 510 U.S. at 475. Damages suits against the United

States, as with any litigant, may incentivize good behavior or appropriately compensate

those who have been harmed. But it remains the province of the political branches, not

the courts, to weigh the costs and benefits of exposing the federal government to civil

litigation. “A waiver of the Federal Government’s sovereign immunity must be

unequivocally expressed in statutory text . . . and will not be implied.” Lane v. Pena, 518

U.S. 187, 192 (1996). In other words, waivers cannot contain an ambiguity, which “exists

if there is a plausible interpretation of the statute that would not authorize money

damages against the Government.” FAA v. Cooper, 566 U.S. 284, 290-91 (2012).

Sovereign immunity, in short, can only be waived by statutory text that is unambiguous

and unequivocal. The requirement exists, in part, to prevent the inadvertent imposition of

massive monetary loss.

                                             B.

       Against this backdrop, we shall examine the purported waiver itself. Robinson

contends that his claims were wrongly dismissed because the United States has indeed

waived sovereign immunity to civil actions under FCRA’s general liability provisions.

See 15 U.S.C. §§ 1681n-1681o. The plaintiff bears the burden of showing that the

                                             6
government has waived sovereign immunity at the motion to dismiss stage. Williams v.

United States, 50 F.3d 299, 304 (4th Cir. 1995). We review the district court’s ruling de

novo. Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005).

      FCRA provides a series of requirements for handling consumer credit information

in order to “ensure fair and accurate credit reporting, promote efficiency in the banking

system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52

(2007). Robinson claims the Department violated a provision that requires it, after being

notified that a consumer disputes information relating to his credit, to “conduct an

investigation with respect to the disputed information.” 15 U.S.C. § 1681s-2(b)(1)(A).

FCRA § 1681o provides that “[a]ny person who is negligent in failing to comply with

any requirement imposed under this subchapter with respect to any consumer is liable to

that consumer” for actual damages, costs, and attorney’s fees. For its part, § 1681n

applies to willful FCRA violations, and adds punitive damages to the remedies for

negligent violations under § 1681o. District courts have jurisdiction over any timely

action properly brought under either provision. See 15 U.S.C. § 1681p.

      This case centers on the meaning of the word “person” in § 1681n and § 1681o,

specifically whether the federal government is a “person” for purposes of FCRA’s

general civil liability provisions. We begin our inquiry, as always, with the text of the

statute. See Clark v. Absolute Collection Serv., Inc., 741 F.3d 487, 489 (4th Cir. 2014).

Robinson attempts to isolate FCRA’s definitional and civil liability provisions from the

rest of the statute in arguing that FCRA’s text is straightforward. FCRA’s causes of

action for willful and negligent violations apply to any “person.” See 15 U.S.C.

                                            7
§§ 1681n-1681o. The statute itself defines “person” to include “any individual,

partnership, corporation, trust, estate, cooperative, association, government or

governmental subdivision or agency, or other entity.” 15 U.S.C. § 1681a(b). Since the

federal government is a government, any government is a person, and as any person can

be liable, so his argument goes, the federal government can be liable for FCRA

violations.

       But we do not interpret the word “person” on a blank slate. There is a

“longstanding interpretive presumption that ‘person’ does not include the sovereign.” Vt.

Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 780 (2000); see United States v.

Cooper Corp., 312 U.S. 600 (1941) (“person” does not include United States under the

Sherman Act). This canon applies even when “person” is elsewhere defined by statute.

“In settling on a fair reading of a statute, it is not unusual to consider the ordinary

meaning of a defined term, particularly when there is dissonance between that ordinary

meaning and the reach of the definition.” Bond v. United States, 572 U.S. 844, 861

(2014). While we need not determine the exact contours of the ordinary meaning of

“person” for present purposes, see 1 U.S.C. § 1 (general definition of “person”

throughout the United States Code), suffice it to say that the United States is not

ordinarily considered to be a person. On this ordinary understanding, FCRA’s

enforcement provisions thus would not apply to the federal government. If it is plausible

that Congress used “person” according to its ordinary meaning, then sovereign immunity

has not been unambiguously waived. Cooper, 566 U.S. at 290-91.



                                            8
       We observe, moreover, that statutes waiving sovereign immunity are normally

quite clear. Take, for example, the Little Tucker Act, which “provides that ‘[t]he district

courts shall have original jurisdiction, concurrent with the United States Court of Federal

Claims, of . . . [a]ny . . . civil action or claim against the United States, not exceeding

$10,000 in amount, founded . . . upon . . . any Act of Congress.’” United States v.

Bormes, 568 U.S. 6, 7 (2012) (quoting 28 U.S.C. § 1346(a)(2)). At its core, the Little

Tucker Act specifically describes claims “against the United States.” Id. The same is true

of the Federal Tort Claims Act: “The United States [is] liable . . . in the same manner and

to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

Indeed the words “United States” appear in a great many waivers. E.g., 12 U.S.C.

§ 3417(a) (“Any agency or department of the United States . . . is liable to the

customer . . . .”); 42 U.S.C. § 9620(a)(1) (“Each department, agency, and instrumentality

of the United States . . . shall be subject to . . . liability under section 9607.”); see also 26

U.S.C. § 7433(a) (waiver describing “United States”); 46 U.S.C. § 30903(a) (same).

       The alleged waivers in the present case, by contrast, describe only liability against

a “person.” See 15 U.S.C. §§ 1681n-1681o. Even the definition section on which

Robinson relies does not specifically mention the United States or the federal

government. See 15 U.S.C. § 1681a(b). And, as the Ninth Circuit recently noted, when

Congress means to waive sovereign immunity in a provision otherwise applying to

persons it says so explicitly. Daniel v. Nat’l Park Serv., 891 F.3d 762, 772 (9th Cir.

2018); see 33 U.S.C. § 1365(a)(1) (Clean Water Act) (“[A]ny citizen may commence a

civil action on his own behalf . . . against any person (including (i) the United States, and

                                               9
(ii) any other governmental instrumentality or agency . . . ).”); 42 U.S.C. § 6972(a)(1)(A)

(Resource Conservation and Recovery Act) (“[A]ny person may commence a civil action

on his own behalf . . . against any person (including (a) the United States, and (b) any

other governmental instrumentality or agency . . . ).”). Robinson’s argument, at best,

relies upon a far more abbreviated and less clear expression to establish a waiver in his

case. This is hardly evidence of an unequivocal intent to waive federal sovereign

immunity in the same way as statutes that specifically describe actions against the

“United States.”

       There is, however, one explicit waiver of sovereign immunity elsewhere in FCRA

that does not apply to Robinson’s claims. Section 1681u empowers the Federal Bureau of

Investigation to obtain information from consumer reporting agencies in connection with

its counterterrorism efforts. This section includes a clear waiver: “Any agency or

department of the United States obtaining or disclosing any consumer reports, records, or

information contained therein in violation of [§ 1681u] is liable to the consumer to whom

such consumer reports, records, or information relate” for statutory, actual, and

sometimes punitive damages. 15 U.S.C. § 1681u(j). Here again the waiver spells out that

“the United States . . . is liable to the consumer.” Id. There is no need to quibble over how

Congress used a word. There is no need to hypothesize whether Congress considered the

provision’s effects on the federal government. Unlike the asserted waivers on which

Robinson relies, the import of § 1681u(j) is plain as day.

       This is not to say that waivers of sovereign immunity must “use magic words,”

Cooper, 566 U.S. at 291, that existing waivers serve as a series of litmus tests, or even

                                             10
that a statute must use the same waiver language throughout. There are no such

requirements under law. But courts are to “presume congressional familiarity” with the

need for waivers of sovereign immunity to be unambiguous and unequivocal. U.S. Dep’t

of Energy v. Ohio, 503 U.S. 607, 615 (1992). The stark contrasts between FCRA’s civil

liability provisions and recognized waivers serve as strong evidence that Congress did not

waive sovereign immunity under FCRA.

      Indeed, in the universe of possible waivers, this would be a very casual one. Yet

the consequences of waiving immunity under FCRA’s general liability provisions are

anything but casual: the federal government is the nation’s largest employer and lender.

The Department represents that “[i]n fiscal year 2017, for example, the delinquent non-

tax debt owed to the federal government totaled $185 billion.” Brief for Appellee, at 23.

It notes that federal agencies sometimes are required by law to report delinquent debts to

the consumer reporting agencies. See, e.g., 20 U.S.C. § 1080a. Each report, of course,

would give rise to potential liability under FCRA. There is no telling the true costs of a

waiver, especially when considering the punitive damages generally allowed under

§ 1681n.

                                           C.

      The consequences of Robinson’s proposed reading, moreover, extend further

when we consider other applications of FCRA’s enforcement provisions. See FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (recognizing the “fundamental

canon of statutory construction that the words of a statute must be read in their context

and with a view to their place in the overall statutory scheme,” id. at 133 (internal

                                           11
quotation marks omitted)). Robinson’s reading of the statute would raise a host of new

issues ranging from the merely befuddling to the truly bizarre. We thus follow the

Supreme Court’s lead in being “especially reluctant to read ‘person’ to mean the

sovereign where, as here, such a reading is decidedly awkward.” Int’l Primate Prot.

League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 83 (1991) (internal quotation

marks omitted).

       And awkward it is. Take, for example, the prospect of the government bringing

criminal charges against itself. The Act’s enforcement provisions, after all, facially

authorize criminal proceedings against “[a]ny person.” 15 U.S.C. § 1681q. Imagine a

court’s puzzlement upon seeing a criminal case captioned “United States v. United

States.” See Cooper Corp., 312 U.S. at 609 (“It must be obvious that the United States

cannot be embraced by the phrase ‘any person’” when a statute criminalizes conduct by

“any person.” Id.). Robinson points out that other courts, upon finding waiver under

FCRA, have dismissed this problem because a prosecution could be brought against

federal employees. See, e.g., Bormes v. United States, 759 F.3d 793, 796 (7th Cir. 2014).

But, adopting Robinson’s reading arguendo, the statute allows prosecution of “any

government,” not the employees of any government. The pro-waiver camp cannot have it

both ways—literal most often, just not when it suits to blur the lines.

       FCRA also empowers several federal agencies to enforce its various provisions,

including, most notably, the Federal Trade Commission and the Consumer Finance

Protection Bureau. See 15 U.S.C. § 1681s(a)(1) (FTC enforcement), § 1681s(b)(1)(H)

(CFPB enforcement). If the prospect of the CFPB pursuing a civil action against the

                                             12
United States is any less odd than a criminal prosecution of the United States, it is not by

much. To make matters worse, states also play a role in enforcing FCRA’s various

provisions. See 15 U.S.C. § 1681s(c). It would be anomalous for the federal government

to expose its fisc to the suits of state attorneys general in such an offhanded manner. And

once again, FCRA litigants under plaintiff’s reading could even pursue punitive damages

against the federal government, see 15 U.S.C. § 1681n, which would trample yet another

presumption, this time “against imposition of punitive damages on governmental

entities.” Vt. Agency of Nat. Res., 529 U.S. at 785.

       Regrettably the problems with Robinson’s proposal do not end there. Robinson’s

arguments equally would expose “any government” to liability, including foreign, tribal,

and state governments. The first implication would require courts to compromise treaties

and to undermine principles of international comity. See Samantar v. Yousuf, 560 U.S.

305, 311-25 (2010) (describing common-law and statutory immunities afforded to

foreign governments). The second, to cast aside a history of tribal immunity. See Bay

Mills Indian Cmty., 572 U.S. at 788-91 (discussing tribal sovereign immunity). The third,

to ignore constitutional limits on federal abrogation of state sovereign immunity. See

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47, 72 (1996) (holding that Congress

lacks the power to abrogate state sovereign immunity under the Commerce Clause).

       The Seminole Tribe decision, in fact, came down not long before Congress

amended the Act that Robinson now contends waives governmental sovereign immunity.

See Consumer Credit Reporting Reform Act of 1996, Pub. L. No. 104-208, 110 Stat.

3009-426. Robinson would therefore have us suppose that Congress, in an

                                             13
insurrectionary moment, set out to defy a prominent Supreme Court ruling that held

Congress lacked the very authority Robinson now asserts it exercised. On a broader level,

Robinson would have FCRA expose not only the United States but foreign, tribal, and

state governments to punitive damages, criminal penalties, and an array of other

monetary sanctions for activities “in which governments are uniquely involved on a

massive scale.” Brief for Appellee, at 30. To read these broad and staggering implications

into the statute on the slimmest of textual hints would be to abjure our duty to construe

“the statutory language with that conservatism which is appropriate in the case of a

waiver of sovereign immunity.” United States v. Sherwood, 312 U.S. 584, 590 (1941).

       We are not, of course, required to reach any of those confounding problems

Robinson’s reading presents in the instant case. But we should not interpret the statute

today in a way that will create serious new difficulties tomorrow. The statute bears no

indicia of congressional intent to bring about such a bevy of implausible results, let alone

an unambiguous and unequivocal intent to do so.

       Faced with abundant evidence from FCRA’s text and structure, Robinson argues

that FCRA’s enforcement provisions must apply to the federal government because the

federal government is a person under several of FCRA’s substantive provisions. Cf.

Bormes, 759 F.3d at 795 (“The United States concedes that it is a “person” for the

purpose of [FCRA’s] substantive requirements.”). But the substantive and enforcement

provisions in FCRA are not one and the same. All of the problems discussed above relate

to the statute’s enforcement provisions. And Robinson’s argument does not even begin to



                                            14
account for the untoward consequences of, inter alia, reading the statute’s enforcement

provisions to set the federal government in courts of law against itself.

       Moreover, just as the ordinary meaning of “person” has always applied to FCRA’s

enforcement provisions, the statutory definition of “person” has always applied to

FCRA’s substantive provisions. To take but one example, FCRA § 604(3)(D) specifically

provided that consumer reporting agencies could give information to a “person” for “a

determination of the consumer’s eligibility for a license or other benefit granted by a

governmental instrumentality required by law to consider an applicant’s financial

responsibility or status.” Fair Credit Reporting Act, Pub. L. No. 91-508, 84 Stat. 1127,

1129 (1970). Who, other than a government, would be required by law to use credit

information to determine eligibility for government benefits? Our reading of the word

“person” thus does not create a textual anomaly, but rather reflects a holistic statutory

view that undermines Robinson’s attempt to transport the meaning of “person” from

FCRA’s substantive measures to its enforcement provisions.

       Both parties also raise arguments by analogizing FCRA’s statutory scheme to that

of other federal statutes, drawing on its general purposes, and plucking out various tidbits

from its legislative history. But we do not rest our opinion on those bases. We think that

these arguments, at best, are of decidedly marginal relevance and secondary importance.

FCRA’s text and structure make clear that no unambiguous and unequivocal waiver of

sovereign immunity has taken place.




                                             15
                                             D.

       The parties debate extensively several cases from other circuits addressing this

issue. The Ninth Circuit, for example, adopted a reading of the statute similar to our own.

The court employed a holistic approach in interpreting FCRA to preserve federal

sovereign immunity. Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir. 2018). It reasoned

that “[d]istilling a clear waiver of sovereign immunity in the FCRA would require us to

treat ‘the United States’ as a ‘person’ in each provision.” Id. at 770. The Ninth Circuit

rejected that interpretation after reviewing the myriad absurd results of reading “person”

to include the United States throughout the enforcement provisions of the statute. Id. at

768-74.

       It is true that the Seventh Circuit initially adopted the view that FCRA did set forth

a waiver of federal sovereign immunity. Bormes, 759 F.3d at 796. But when faced with

the actual consequences of that ruling, the Seventh Circuit retreated from Bormes by

upholding tribal sovereign immunity under FCRA, even though federal and tribal

governments equally qualify as “any government” under Bormes’ reading of the statute.

Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818, 823-27 (7th Cir. 2016). Reading

“any government” to allow suits against tribes, in the view of Meyers, would be

“shoehorning” a tribal immunity waiver where it failed utterly to fit. Id. at 827. “But

when it comes to sovereign immunity, shoehorning is precisely what we cannot do.” Id.

As the Ninth Circuit recognized in Daniel, the Seventh Circuit’s logic regarding tribal

sovereign immunity should apply equally to the United States. 891 F.3d at 774.



                                             16
                                             III.

       For the foregoing reasons, the judgment of the district court dismissing this case

for want of subject matter jurisdiction is

                                                                            AFFIRMED.




                                             17
