based on d f c r a or the cause of action is contained is created by d f c r a yes your honor and it's a cause of action for damages at this point ye because it's a subject matter jurisdictional question whether congress waived sovereign immunity under the f c r a for damages claims why isn't that the federal government person as fact word is used in the section objecting persons to criminal liability i think that that statute and so whether whether that criminal liability says i don't think stops the government from being a person in the other  together then it's clear that congress intended that when the federal government does specific type of consumer reporting covered by the statute that it is the person that's liable under the statute and subject the same time decide that we're not going to waive sovereign immunity so that you can sue the government for damages if they don't comply with the statute you might be able to get injun for declaratory relief pursuant to the waiver of sovereign immunity in the a p a but we're not going to subject the government for damages can't the government i mean can't congress make that sort of a determination when they say that the government will be bound by a statute right i just wrote and i suspect that the government can do that but the government did not do that here  or hybrid status of federal sovereign immunity we are not required to decide that issue before the merits i'm sorry judge i know if you cut out you know the bit about that there's precedent in the circuit saying we don't the agency is somehow transformed into a consumer reporting agency when its carrying out legislative directive is intended for safety purposes and that the united states has waived its sovereign immunity with respect to damages and i can do n are if if you're honest believe as the government argues that the agency simply isn't a consumer reporting agency that's governed under the fair credit reporting act the question of whether damages would apply if those provisions in fact united states certainly if it's a bedrock principle on on waivers of sovereign immunity with respect to damages that they have to be clear and unequivocal there's no clear and unequivocal language in the in the  the government to liability here let's talk about that do you agree that the definitional clause is clear and unambiguous in extending to the federal government when based as we were as your honour's were discussing earlier as discussed in the th circuit's decision and daniel on the four circuits this discussion are robinson based on the attacks of this particular statute so starting with that supreme court case in the employee's case which included in the definition of employer and there was a separate liability provision for employers ask when there's congressional silence as to whether or not that definition all provision was intended to waive state sovereign as for the purpose of this subchapter and this subject after me i'm sol the fix right you're on are the i think what's helpful here is to take a step back and look at the way that the nine hundred and seventy version of the statute as an acted how all of those provisions work to get up what you believe in a nd but it was before we get to structure and drafting history let's just talk about text robinson the if you if one were to read a person across that the entire text let mean to mean both state and federal governments across everything it would lead to absurd results and so that's both the criminal that's both the criminal provision that your honor raised earlier but also it's actually if one were to look at this consumer reporting agency provision in the original text if by the mere inclusion of governments and persons states for example could be included in consumer reporting agencies that itself would be unconstitutional because it's an act that under the commerce clause and private suits for damages cannot be enacted against the state pursuing to congress's commerce cl states so why the statue or states when it's unconstitutional as applied it's it's yet another reason along with the fact that the along with the fact that the criminal the application of the rights and i think if i might with your indulgence just talk about how it made sense for congress to include persons and why it would have done so in the original tax without actually imposing liability and again you know there has to be it has to be clear and unequivocal if for example section six hundred and seven and section six hundred and four that regulate consumer reporting agencies and the permissible uses for which they can provide information to person and there it's quite clear that the that they still have to follow those rules when the person to whom they are disclosing includes governmental agencies so for example six thousand six hundred and four dollars d applies to when governments are making beneficiary decisions it's only a government that would do that and that's underscored by the original section six hundred and eight which creates a limited carve out for additional disclosures to federal agencies by those consumer reporting agencies in certain circumstances and so it made sense for congress there's a certainly a possible reading of the nine hundred and seventy act that doesn't just depend on the absurd result for why it would have been included in the definitional section for those purposes but not actually with respect to the liability profession i would also like to just talk about why the agency doesn't come within the definition of a consumer reporting agency in the st place if there are further questions on the damages at this time court correctly concluded when congress mandated that the agency give motor carriers out tronic access to previously assembled driver safety reports from the agency's central database as an alternative to requests and to promote public safety congress did not implicitly transform that federal agency into consumer reporting agency for purposes of the fair credit reporting and i think here it's really important to understand how this all works together and this is something of a just report went through so it has been a series of sort of congressional enactment st congress mandated that the agency collect and compile driver safety information from crashes and inspections at the roadside and to do so for a variety of safety purposes including war making and enforcement actions and at that time motor carriers were able to get that information through for our request with driver database so no new assembly it has to be an exact match or snapshot of the district court recognized and the purpose there to what's your promote safety and that's in fact borne out of the agency has emphasized with employers who are regularly using these reports seeing a decrease in crashes of eight percent and a decrease and and driver out of service orders which only apply where the driver either changed to me the the th the one says that that the agency is to ensure that any information that is released to such person will be in accordance with the fair credit reporting you don't get much more explicit than that what does will be in accordance with the fair credit reporting act being absolutely on our so so two points there st it actually underscores that the agency by the terms of  fair credit reporting act itself which is the cause of action sought here is not zero is not already directly or it were regulated as a consumer reporting agency under that statute because otherwise that would just be no clear and unequivocal waiver with respect to damages there's no mention of damages there at all but rather when you read the language together with the other parts about provisions or beat you and stretch the agencies ensure that the program requires driver consent before instruct the agency to create a procedure for correction what it's doing is making sure that the eight that when a motor carrier either collects information but the problem with that argument is that congress said those two things it didn't need to say will be in accordance with the fair credit reporting act they could have just said you know make sure that you get consent in that you have a correction procedure as part of this program and they did and they didn't need to say they will be in accordance with the fair credit reporting act if that's all they intended to do so yes i think actually it's one thing that's helpful to know here is that there are parallel provisions in the fair credit reporting act that specifically applied to motor carrier employers and what they have to do when they get similar information directly from a consumer reporting agency instead of instead of from the agency and because i don't remember seeing it no your honor it's not nerdy but in response your question what we did say in our brief is that what that was intended to do is to really enforce is to really ensure that the agency was operating you run out of time your side of the d o t is not a consumer reporting agency you don't mean to agree do you that these accident commercial accident and specs in reports are consumer and giving them the authority to set up their own procedure if they were already regulated as consumer reporting agencies because they were providing consumer reports then then there would be no need to instruct the agency to create its own procedure because  judge round offs question there towards the end they the in these here parts certainly could be consumer reports their personal information that's come up distributed for the purposes of making a hiring decision which is a decision covered by i right so they couldn't be consumer reports secondly i want to say that while the cases that defense counsel refers to have not found the federal government is a  that an inspection what is a got to do with it i mean one of your clients had there was some kind of latch that had too much play in it that didn't have anything to do with whether he was worthy of  and character the character they all relates back to credit worthiness i mean you could say that you don't want to extend credit to somebody that has been convicted of ten felonies over there or life  an employer would not want to hire a deadbeat right i mean that's what that means