Department of Agriculture Rural Development Rural Housing Service, Petitioner, v. Reginald Kirtz, Respondent
Interviewer(s): Samuel A. Alito, Jr., Amy Coney Barrett, Elena Kagan, John G. Roberts, Jr., Ketanji Brown Jackson, Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor, Clarence Thomas
Interviewee(s): Nandan M. Joshi, Benjamin W. Snyder

John G. Roberts, Jr.: We'll hear argument this morning in Case 22-846, Department of Agriculture Rural Development Rural Housing Service versus Kirtz.

Mr. Snyder.

Benjamin W. Snyder: Mr. Chief Justice, and may it please the Court: 

The question in this case is whether Congress unambiguously waived the sovereign immunity of the United States when it amended the Fair Credit Reporting Act in 1996 to provide that any person who violates FCRA's requirements is liable for money damages. 

The answer to that question is no. To start, there's no basis for claiming that Congress has expressly waived sovereign immunity. For all of Respondent's emphasis on following the literal text of the statute, he ultimately has to concede that nothing in FCRA addresses sovereign immunity directly. 

Instead, Respondent is asking this Court to read an unwritten waiver into the statute on the theory that every time Congress creates a cause of action that applies to both sovereign and non-sovereign defendants, it must implicitly intend to eliminate sovereign immunity.

But that argument is wrong for two reasons. First, it's fundamentally inconsistent with the nature of sovereign immunity. Sovereign immunity is a defense that, by definition, has effect only when there is a cause of action that would otherwise impose liability. So, if every cause of action that covers a sovereign also waived that sovereign's immunity, the defense would never matter. That cannot be right. 

This Court has therefore followed a narrower rule under which courts may infer a waiver of sovereign immunity from a cause of action only if Congress has referred to sovereign defendants in the cause of action itself using language that would be effectively negated if sovereign immunity remained available and that therefore shows Congress's intent to displace the presumptively available defense. 

But there's nothing like that here. And as the Court's decision in Employees shows, the mere use of a general term defined elsewhere in the statute isn't enough to eliminate the sovereign immunity defense.

Second, it's in any event far from clear that these causes of action apply to the United States at all. Even the court of appeals recognized that FCRA's criminal provision uses "person" in a sense that does not include federal agencies, and it's plausible to interpret the nearby civil causes of action in the same way. 

I welcome the Court's questions.

Clarence Thomas: Mr. Snyder, the -putting aside sovereign immunity, the statute refers to -- defines a person as any individual, et cetera, and any government or governmental subdivision or agency. Putting aside the issue of sovereign immunity, wouldn't that suggest that it applies to the -- the U.S. Government?

Benjamin W. Snyder: So we accept that that's a plausible reading.

Clarence Thomas: So, if -- if it does that as explicitly as it does, why doesn't -isn't that sufficient to waive sovereign immunity?

Benjamin W. Snyder: So -- so two answers to that, Justice Thomas. We don't think that it unambiguously covers the United States. And I -- I'd say our argument on that front is under the Court's decision in Utility Air. I would say that's the best decision for that part of our argument. 

You're asking, even if I assume that 1681n and o use "person" in a sense that does cover the United States, does that also take the analytically distinct step of waiving sovereign immunity. 

And so putting aside the Utility Air argument for a moment, on that argument, we would say no because all the text of the statute does is create a cause of action and it does so using a general word that, on hypothesis, covers both sovereign and non-sovereign defendants. But there's nothing necessarily implicit in that to show that Congress must have intended to waive the defenses that all defendants covered by that cause of action would have available under ordinary background principles. 

So I don't think anyone would think it's strange, for example, if a defendant who's covered by the plain text of the cause of action but who violated FCRA more than five years ago were to assert a statute of limitations defense. That doesn't negate anything in the cause of action. 

And similarly here, the fact that, again, on hypothesis, some defendants covered by the cause of action would be able to assert a sovereign immunity defense doesn't negate anything in the statutory language that Congress used in adopting that cause of action. 

Now it is a different --

Elena Kagan: I'm not sure I understand that, Mr. Snyder. I mean, suppose that we just take the definition and we plug it into n and o. What would your answer be then?

Benjamin W. Snyder: So, if the Court were to plug all of the words from the definition into n and o specifically, then the only -- the only purpose of those words in n and o, the words referring to governmental entities, would be to make clear that Congress is authorizing recovery against sovereign defendants.

Elena Kagan: So your answer then would be that there is not sovereign immunity?

Benjamin W. Snyder: Yes. Our answer would be that even though Congress has not directly addressed sovereign immunity that unless --

Elena Kagan: Yeah, I mean, it falls into the whole line of cases where Congress has authorized a cause of action against the government, and we say, well, that's inconsistent with the recognition of sovereign immunity. Sovereign immunity would negate the very cause of action that Congress has created, right? Those are the line of cases that we discussed just last year. 

And what you're saying to me is, yes, if you plug the definition into n and o, the liability provisions, those cases would -- you know, the same answer would follow?

Benjamin W. Snyder: Yes, that's correct.

Elena Kagan: Okay. So then -- then why does it make a difference that they're not plugged in to n and o but instead -- you know, the definition has a lot, a lot, a lot of words, right? There's a person, there's a corporation, there's an association, there's an enterprise, et cetera, et cetera. You can see why Congress didn't want to say that every time Congress meant to refer to a lot of different entities.

So -- but, you know, it's statutory interpretation 101 that we take a defined term, we plug the definition in, and that's what the meaning of the statute is. So that's what the meaning of the statute is.

Benjamin W. Snyder: So, Justice Kagan, if the question here were just what the meaning of the words in the cause of action were, I -- I would agree with you. So last term, in Lac du Flambeau, for example, there was an express waiver of sovereign immunity that made absolutely clear that what Congress was intending to do was waive sovereign immunity, and it did so on behalf of governmental units and then defined governmental units elsewhere in the statute. And this sort of subbing in the -the words from the definition into the waiver of sovereign immunity would have worked perfectly there because all you were asking was what do the words that Congress used mean. 

But, here, you're not asking just what do the words mean; you're asking about the -the necessary logical implication of what Congress has done.

Elena Kagan: Well, the -- the necessary logical implication of what Congress has done is authorize a suit against people, persons, as defined in the definitions section. Then you go to the definitions section, and then you discover that what Congress has done is authorize a suit against natural persons, enterprises, and governments.

Benjamin W. Snyder: So, respectfully, Justice Kagan, I don't think that's right. At the time that Congress adopted that definition, the one thing we know is that it wasn't doing so for purposes of allowing civil recovery against everyone covered by "persons" because the statute didn't authorize recovery against persons at the time.

Ketanji Brown Jackson: Right, but then -then there was the amendment. So why -- why can't we assume from that that Congress was trying to reach all of the defined entities?

Benjamin W. Snyder: I -- so I think maybe that would be a plausible reading of the statute, but in order to find a waiver of sovereign immunity, you have to conclude that it's the only plausible reading of the statute. So just --

Ketanji Brown Jackson: And why -- why isn't it not the only plausible -- I mean, Congress amended the statute clearly to expand liability. Do you -- do you concede that?

Benjamin W. Snyder: Yes, we agree with that.

Ketanji Brown Jackson: All right. And it -- and it expanded liability by substituting the previous terms, which were narrower, you know, specifically referencing only "any consumer reporting agency or user of information," it expanded liability by striking that and putting in the word "person" and -- or "any person," and "any person" is elsewhere defined in the statute to include government. 

So what is not clear about Congress's intention to expand liability to include government?

Benjamin W. Snyder: So -- so we do have this other argument about whether it's clear that Congress actually intended "person" to include the government, and I -- I do eventually want to get to that. 

But just, I think you're asking me to assume that "person" takes the statutory definition in 1681n and o and why isn't that enough to show that Congress must have intended to waive sovereign immunity.

And my answer is that it's not unusual for Congress to create a cause of action that applies to a range of defendants, some of whom will still have defenses from other background principles of the law. 

Now, in the cases that this Court was referring to in the Financial Oversight and Management Board --

Neil Gorsuch: Counsel, I -- I'm sorry --

Brett M. Kavanaugh: Wouldn't --

Neil Gorsuch: -- to interrupt, but I -- I -- I just want to understand the nature of your argument in responses to my colleagues. 

It could be one of two things it seems to me. One -- one, it might be that n and o don't take the definition, or, two, they do take the definition and that's still insufficient. 

Which is it?

Benjamin W. Snyder: We are making both of those arguments. The -- the argument --

Neil Gorsuch: Arguing in the alternative?

Benjamin W. Snyder: Yes, we're arguing --

Brett M. Kavanaugh: Right.

Benjamin W. Snyder: -- in the alternative. So, if you -- even if you accept, as the -- the questions so far have asked me to assume, that "person" covers the United States, in that circumstance, you're in exactly the same situation that --

Neil Gorsuch: Let's deal with the first argument, just -- just that they don't take the definition. I want to understand that because this Court, as Justice Kagan has alluded to, has said that it's virtually conclusive -- I think Sturgeon a few years ago we said that -virtually conclusive that the definition applies.

Benjamin W. Snyder: Yes. So we -- we accept that ordinarily, statutory definitions make a great deal of difference, but this Court has also --

Neil Gorsuch: More than a great deal of difference. We've said they're virtually conclusive.

Benjamin W. Snyder: Yes. But this Court has also rejected the idea that you always just plug in the terms wherever the -- the defined term appears in the statute. I think the Court's decision in Utility Air is really significant on this and, in particular, the structure of the Court's reasoning in that decision.

So Utility Air involved provisions of the Clean Air Act that applied to facilities that emitted any air pollutant, and EPA had concluded that those provisions unambiguously applied to facilities that emitted greenhouse gases because the Act-wide definition of "air pollutant" included greenhouse gases.

Neil Gorsuch: Why -- we -- we've read all that. I -- I guess I'm wondering, why isn't it virtually conclusive here?

Benjamin W. Snyder: So the reason is that just as in Utility Air, there were other provisions of the Act that used "air pollutant" in a sense narrower than its defined meaning.

Neil Gorsuch: And there may be other provisions in which it's more narrowly applied here, but why does that pertain to n and o, is my question. MR. SNYDER: So I'm being too slow --

I'm --

Benjamin W. Snyder: -- in getting to this.

But --

Neil Gorsuch: You are. MR. SNYDER: -- in Utility Air --

Let's get to the statute before us. MR. SNYDER: In -- so --

Elena Kagan: Utility Air -- may I? JUSTICE GORSUCH: Please. [Laughter.] JUSTICE KAGAN: Utility Air was a very special case in which the Court decided that if you just plugged the definition in, the entire regulatory scheme would collapse.

Benjamin W. Snyder: So the first part of the Court's decision --

Elena Kagan: So all I'm saying --

Benjamin W. Snyder: -- in Utility Air --

Elena Kagan: -- is that that's, you know, nowhere near this case. I mean, I understand that the government likes sovereign immunity and that waivers of sovereign immunity are, you know, not all that common. But this is not a Utility Air scheme where, essentially, the Court found that it was inconsistent with the entire rest of the statutory scheme.

Recognizing a cause of action here is not inconsistent with the entire rest of the statutory scheme.

I'm sorry about that, Justice Gorsuch.

Neil Gorsuch: Well, no, that -that -- no, I appreciate that. And -- and that's -- that's my question too. So, please.

Benjamin W. Snyder: So even the court of appeals recognized that 1681q does not use "person" in a sense --

Neil Gorsuch: I -- I understand. We're talking about n and o here, though, counsel.

Benjamin W. Snyder: So, if you accept that --

Neil Gorsuch: And let me put it this way. I'm sorry to repeat the question, but this is where I get stuck. 

It doesn't seem to me inconceivable -maybe -- maybe -- maybe you've got an argument -- that a rational Congress might, to protect consumers, in FCRA, which is all about false reporting about consumers' debts and delinquencies, say that the government should turn square corners too, just like other private credit reporting agencies, and that when it falsely reports a consumer's debt, it should -it should pay that, n and o.

Again, let's talk about n and o. Let's not talk about q. Let's not talk about Utility Air. Let's talk about n and o. You have to come up, it seems to me, with some argument that it's inconceivable Congress would have wanted to do that sort of thing.

Benjamin W. Snyder: Respectfully, Justice Gorsuch, I -- I think our task is to show that it's plausible that that's not what Congress did here. That's what the clear statement rule requires. And we think that because Congress has --

Neil Gorsuch: That's the second step. We're still on the first step. What do n and o mean?

Benjamin W. Snyder: So we don't think that n and o clearly cover the United States. Congress has used the word "person" in other parts of the -- of the statute in ways that do not cover the United States, and we think it is therefore plausible to think that when Congress used the word "person" in n and o, it was also using n and o in a sense --

Brett M. Kavanaugh: What are your best examples of that?

Benjamin W. Snyder: So we think 1681q, I know I've been asked not to talk about that, but --

Brett M. Kavanaugh: You can talk about it with me. 

[Laughter.]

Benjamin W. Snyder: We think that 1681q clearly uses "person" in a sense that does not use the Act-wide definition. Even the court of appeals recognized that it would not be reasonable to think that Congress authorized criminal prosecutions of the United States just through the bare use of the word "person" and that it must have meant something narrower there.

Ketanji Brown Jackson: But why -- why -why is that a definitional change? I mean, I think the problem that I'm having is that A, in the definitions, the text of this statute says that the definitions apply throughout the entire subchapter.

And I understand your point about q, but why isn't that just a carve-out? They're just saying that, you know, certain categories of persons can't have criminal prosecution, but it's not a change in the definition of "person."

Benjamin W. Snyder: I -- I -- I guess that's not the way I read that provision. I think that the statutes in both Utility Air and Employees had similar provisions that said this definition applies everywhere. In Utility Air, the Court said but we know that Congress didn't always use the defined term in a sense that carried its defined meaning, and so, when it appears in the provision at issue, it's not unambiguous that --

Brett M. Kavanaugh: Counsel --

Benjamin W. Snyder: -- it carries that meaning.

Sonia Sotomayor: Counsel --

Brett M. Kavanaugh: -- can I --

Sonia Sotomayor: -- can I --

Brett M. Kavanaugh: Go ahead.

Sonia Sotomayor: -- can I go back to q? Because I was -- I don't know why it's incongruous or why it suggests a problem. I went back and researched the Clean Water Act, the Safe Drinking Water Act, and the Agricultural Adjustment Act. At least three -I didn't canvass the universe -- include a criminal provision that applies to the United States that's nearly identical to this one. It says imprisonment and/or fine.

So I don't know why copying what has been used in other acts for which there's no question that there's a waiver of sovereign immunity, why the fact that they refer to imprisonment or -- and fine means that somehow sovereign immunity wasn't waived.

Benjamin W. Snyder: So --

Sonia Sotomayor: It's a common provision written exactly like this one is, and in those acts, we've never said their existence calls into question the waiver of sovereign immunity.

Benjamin W. Snyder: So I -- I'm not sure, are you referring to criminal provisions in those other statutes?

Sonia Sotomayor: Yes, yes.

Benjamin W. Snyder: So I -- I think the significant thing about the criminal provisions elsewhere in the -- the Code, my friend has pointed to just one, that when Congress has wanted to accomplish that really unusual result, it has been just crystal-clear that that's --

Sonia Sotomayor: No. That's what I'm saying to you. Read the -- the best example is the Clean Air Act. It's virtually identical to this one. It basically says any person who violates the Act -- and there's no doubt that the person is the government -- is subject to imprisonment or a fine. 

So it's written identically to this provision. So, if I have that as text and I see it in other statutes, I don't know why reading it here would be incongruous to me or suggest that somehow Congress didn't intend "person" to mean exactly what it means.

Benjamin W. Snyder: So -- so, Justice Sotomayor, even the court of appeals recognized

Sonia Sotomayor: Well, it may --

Benjamin W. Snyder: -- I mean, you did not recognize it --

Sonia Sotomayor: -- it may have recognized it, but what I'm saying to you is I don't.

Benjamin W. Snyder: So accepting that, let me -- let me maybe turn wisely to other -- other points of our argument.

[Laughter.]

1681u[j], which is the provision where Congress really did want to authorize civil actions against the federal agencies --

Sonia Sotomayor: Is that the FBI one?

Benjamin W. Snyder: That's the FBI one. And it refers explicitly to the FBI. Again, I'm not going to suggest --

Sonia Sotomayor: Well --

Benjamin W. Snyder: -- that that's absolutely

Sonia Sotomayor: -- yeah, that one is also difficult for me because that provision is an exemption from the Act basically permitting the FBI to do things and consumer agencies to do things that otherwise might violate the statute, and it's now saying, okay, we've given you an exemption, but we're going to keep you liable if you step outside the terms of this exemption, and it sets forth the terms of that liability. 

I don't know why that is the same thing -- why that's illogical or suggests incongruity with a waiver of sovereign immunity for other violations of the Act.

Benjamin W. Snyder: So, Justice Sotomayor, the only -- the only point we're making about that provision is that when we -- we know that Congress wanted to address civil liability of federal agencies, it said so expressly.

Samuel A. Alito, Jr.: Mr. Snyder --

Benjamin W. Snyder: And that's --

Samuel A. Alito, Jr.: I'm sorry, finish your answer.

Benjamin W. Snyder: My answer is going to have three more parts.

Samuel A. Alito, Jr.: Sure.

Benjamin W. Snyder: So --

Samuel A. Alito, Jr.: Go ahead. 

[Laughter.] 

I'll wait.

Benjamin W. Snyder: -- the -- if you want to jump in, but the -- the --

Samuel A. Alito, Jr.: I'll wait.

Benjamin W. Snyder: -- the -- the next thing that I'd point to is that reading 1681n and o to use the Act-wide definition would render those provisions plainly unconstitutional as applied to unconsenting states under this Court's decision --

Sonia Sotomayor: Well, that's all right. We had the same problem in the Kimel case, and in the Kimel case, we had three layers of reference to the waiver of sovereign immunity, and we didn't require magic words. We just figured out what the definition was, even though it referred to another statute and the other statute referred to a different provision. And yet, no magic words were required. 

And in Kimel, we had exactly the same thing. The government argued that it was incongruous to permit suits against the state because the states hadn't waived their sovereign immunity. But that's a different constitutional provision.

Benjamin W. Snyder: So, in Kimel, there was language in the cause of action itself that was there only for the purpose of authorizing suits --

Sonia Sotomayor: Well, assuming we buy your first argument that any person who is negligent doesn't mean the sovereign, if it's negligent, is responsible. We have to take that first step, right?

Benjamin W. Snyder: So that -- just to be clear, that's not our first argument. Our first argument is that even if you think the cause of action covers both sovereign and non-sovereign defendants, as this Court recognized in Employees, the -- the question of whether the government -- or the Congress has lifted the sovereign immunity defense is analytically distinct from it. So --

Sonia Sotomayor: It is analytically distinct. It can't lift state sovereignty. So it can't do it here either.

Benjamin W. Snyder: So, in Employees, the Court assumed that Congress would be able to lift sovereign immunity. That was -- that was before '75.

Sonia Sotomayor: Well, that was -Employees is an old case, 1973, analyzed in a very different way with a lot of different issues.

Benjamin W. Snyder: So, Justice Sotomayor, respectfully, I disagree with that. I mean, I think this idea that Employees and Parden are sort of of a piece in the bad old days, I just don't think that's a plausible description of those cases. So, if you --

Sonia Sotomayor: We'll let the other side answer that. I don't want to monopolize you. So --

Benjamin W. Snyder: Just briefly on that, I mean, in College Savings Bank, the opinion for the Court by Justice Scalia said -- points out that Employees was written by one of the Parden dissenters over the solitary dissent of Parden's author and that it began the Court's retreat from Parden. So I think Employees is entirely consistent with this modern -- this Court's modern approach to sovereign immunity. 

The -- the other two parts of the answer that I promised Justice Alito I was going to get out, we would -- we think it's significant that the 1996 amendments occurred just months after Seminole Tribe. The idea that Congress adopted this plainly unconstitutional statute without saying anything at all in the statute itself or the legislative history we don't think is plausible.

We also think it's significant that these were adopted at different points in time, so you don't have Congress adopting a cause of action applicable to persons and then saying at the same time that for those purposes, we want this --"persons" to include the United States.

And then, finally, we think there are a number of other statutes where, as with FCRA, Congress has defined "person" to include the United States, but then, in the causes of action, when it's wanted to authorize recovery against the United States, it hasn't just relied on that general definition of "person." It has said in RCRA, for example, that suit is authorized against any person, comma, including the United States. 

And, Justice Kagan, to go back to where we started with why that is different from a case where Congress has just -- I realize I've -- I skipped over Justice Alito, but --

Samuel A. Alito, Jr.: That's okay. That's fine.

Benjamin W. Snyder: -- that --

Elena Kagan: Long ago.

Benjamin W. Snyder: -- that --

Elena Kagan: In fact, before you start talking to me --

Samuel A. Alito, Jr.: This is a --

Elena Kagan: -- I'd like Justice Alito to answer his quest---

[Laughter.]

Samuel A. Alito, Jr.: Well, this is --

Elena Kagan: -- to ask his question.

Samuel A. Alito, Jr.: -- this may be a frolic and a detour, but have there been real cases in which the United States has criminally prosecuted itself?

Benjamin W. Snyder: I am not aware of any.

Samuel A. Alito, Jr.: I mean, if -- if such a case came here, what would -- it's Monday morning. 

[Laughter.] 

I'm having trouble getting a grasp on this. How would this work? You would be arguing on one side and one of your colleagues would be on the other side, and you'd be arguing against each other?

Benjamin W. Snyder: I think that's right. I mean, it's a pretty incongruous idea. We think that if Congress wanted that result, it would have made it much clearer than just using the word "person."

Again, though, the reason that it matters why Congress uses just "person" or instead addresses the -- the sovereign in the cause of action itself is that when Congress uses references to the sovereign itself in the cause of action, the only purpose those words can serve is to authorize recovery against the sovereign. 

And so, in Financial Oversight and Management Board, the Court said that when Congress has expressly authorized suits in that way, it would effectively negate the statutory language to allow the assertion of a sovereign immunity defense. And in that circumstance, the Court has been willing to infer that Congress must have intended to waive sovereign immunity.

Elena Kagan: Well, it does negate the statutory language if you do the normal thing that we do in interpreting statutes, which is plug in the definition into the provision that uses the defined term.

So, here, plug in the definition to n and o, and then it negates the statutory language in the same way that it does in all those other cases. So I've said that before.

Here's what I really want to ask. What does "person" mean if it doesn't mean that?

Benjamin W. Snyder: So we think that, just as we think in 1681q it means its ordinary definition, so too in n and o, we think it has -- it carries its ordinary --

Elena Kagan: What is its ordinary definition? Does it include individuals?

Benjamin W. Snyder: It includes individuals.

Elena Kagan: Does it include partnerships?

Benjamin W. Snyder: It includes partnerships.

Elena Kagan: Corporations?

Benjamin W. Snyder: Yes.

Elena Kagan: Trusts?

Benjamin W. Snyder: Yes.

Elena Kagan: Estates?

Benjamin W. Snyder: Yes.

Elena Kagan: Cooperatives?

Benjamin W. Snyder: Yes.

Elena Kagan: Associations?

Benjamin W. Snyder: Yes.

Elena Kagan: Other entities?

Benjamin W. Snyder: Yes, but not governments.

Elena Kagan: Just not government. I mean, that's a strange way to read a defined term, right? We'll take every part of the defined term and plug it in but not plug in this last listed thing before you get to the residual term.

Benjamin W. Snyder: So that's what we think Congress did in 1861q, and we think it's plausible to think that it did the same thing in 1861n and o. 

But, to the point you made before that, I mean, yes, if we --

Elena Kagan: Well, how about the point I'm making now?

Benjamin W. Snyder: That is my answer, that we think that it carries a meaning other than its defined one, just as "air pollutant" in Utility Air carried a meaning other than its defined one, just as "person" in 1681q carries a meaning other than its defined one.

Elena Kagan: But we're taking the entire definition, except we're striking "government." We're taking the entire definition, except for one word, two words, "governmental subdivision or government," four words.

Benjamin W. Snyder: Yes, because that is the ordinary meaning of "person." It is --

Ketanji Brown Jackson: Okay. But --

Brett M. Kavanaugh: Why -- why are you doing that? I mean, why -- put aside the ordinary meaning of "person."

Benjamin W. Snyder: We're doing that because we think it's plausible to read the civil liability provisions in the same way that it would be plausible to read the criminal liability provisions.

Brett M. Kavanaugh: Well, I thought you were doing that because of sovereign immunity and it's important to protect the fisc of the United States against ambiguous derogations of sovereign immunity.

Benjamin W. Snyder: So we're also doing it for that reason. We think that that's where the -- the --

Elena Kagan: But Congress can waive sovereign immunity, and the question is whether Congress has done so.

Benjamin W. Snyder: Yes. And nothing in the statute -- may I finish?

John G. Roberts, Jr.: Sure.

Benjamin W. Snyder: Nothing in the statute says anything about sovereign immunity. You can only do that from implication. And we think, logically, the fact that Congress didn't specify sovereign defendants in the cause of action itself means that implication is not available here.

John G. Roberts, Jr.: We'll afford you a couple minutes for rebuttal.

Benjamin W. Snyder: Thank you.

John G. Roberts, Jr.: Thank you, Mr. Snyder.

Elena Kagan: Wait.

Brett M. Kavanaugh: Whoa, whoa. 

[Laughter.]

John G. Roberts, Jr.: Justice Thomas? 

Justice Alito? No? Sure?

Neil Gorsuch: I do have one question. So putting aside what n and o mean -we've gone around that tree -- your -- your -your second argument was that Congress needs to be clearer than even that to waive sovereign immunity. Even that wouldn't be enough.

And I guess I wonder why. I certainly understand -- this is kind of a first principles question. I certainly understand the clear statement rule this Court has developed to protect the Eleventh Amendment and state sovereign immunity, separate sovereigns. 

But, here, we have the sovereign itself speaking, right? It's not waiving someone else's immunity. It's not purporting to strip another entity of its protections under the Constitution. It's Congress, which has control over the federal fisc, itself deciding. And I -- so -- so I wonder why the clear statement rule would be appropriate in those circumstances.

Benjamin W. Snyder: So two answers to that, Justice Gorsuch. The first is that Respondent's argument has exactly the same effect in terms of Congress's meaning as to states and in terms of its effect as to Indian tribes and foreign nations. If you rule against the United States here, you will necessarily be saying that it waived sovereign immunity for them too.

Neil Gorsuch: You're -- you're -you're just fighting my question. I'm saying it is different. It is one thing to waive a tribe, a state, a foreign government's immunity. Congress purport to exercise that power under the Constitution, an extraordinary power. It's permissible sometimes, but, generally, we think of as inconsistent with the structure of our Constitution, and that's why we have traditionally required a clear statement rule. 

It's less clear to me what justifications we have for requiring magic words to waive sovereign immunity when it's the sovereign itself opening itself up to suit.

Benjamin W. Snyder: So we, of course, don't think it's magic words, but that's not your question. This Court has repeatedly said that it applies the same standard when evaluating --

Neil Gorsuch: I'm -- I'm -- I'm asking why.

Benjamin W. Snyder: So the Court has identified a number of justifications for --

Neil Gorsuch: What do you think it's saying?

Benjamin W. Snyder: -- the clear statement. I'd combine two.

Neil Gorsuch: Okay.

Benjamin W. Snyder: First, as Federalist 81 said way back at the founding, it was well established then that the sovereign could not be haled into court without its consent.

And, second, tracing all the way back to Blackstone, it was well settled that courts should not interpret statutes to apply to the sovereign unless that was the only permissible reading. 

And so, by the middle of the 19th Century, courts had recognized that in light of those two principles, you couldn't read a congressional enactment to waive sovereign immunity unless that was the only plausible reading, and, of course, by now, this Court has repeated that so many times that it's a well-established background principle against which Congress legislates.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: Just on the clear statement rule part of your argument, so that part, I mean, we said that sometimes the better interpretation of a statute will not necessarily prevail because of the clear statement rule.

So even assuming the -- the interpretation of the statute doesn't -- is against you, the better interpretation, you can still prevail under the clear statement rule?

Benjamin W. Snyder: Yes, that's absolutely right. We just need a --

Brett M. Kavanaugh: Okay. So that's the starting point. And then, for the why, you know, ultimately, it's money that Congress has the power to appropriate, right? And we want to be careful about that.

Benjamin W. Snyder: Yes, we think that's correct.

Brett M. Kavanaugh: Okay. And that's basic separation of powers?

Benjamin W. Snyder: Yes, absolutely.

Brett M. Kavanaugh: Okay. So how much would it cost here if you were to lose this case?

Benjamin W. Snyder: So we don't have a precise estimate of that, Justice Kavanaugh. I will say that there is a -- a case pending in the Seventh Circuit right now that's being held for this case in -- in which the plaintiff has attempted to assert a class action.

We understand that the damages if they were to prevail would be in the millions of dollars. I don't know exactly what that would be, but Congress would have anticipated that the potential liability here would be significant, I think.

Brett M. Kavanaugh: And punitive damages too, right?

Benjamin W. Snyder: So we, of course, don't think those would be available. But I -- I think, if you accepted that this is clear enough

Brett M. Kavanaugh: If you accept their argument down the line, punitive damages could be available?

Benjamin W. Snyder: That's correct.

Brett M. Kavanaugh: Okay. And then, on Employees, you've mentioned that case. And that case seems structurally -- I mean, I'm going to ask a lot to the other side about this -- seems structurally similar to this statute, how this one developed.

But the other side basically says don't pay attention to Employees, and I think Justice Sotomayor alluded to that, because it's old, a 1973 case. So I want your response to that.

Benjamin W. Snyder: So, I mean, first, we don't think this is how this Court treats precedents. Again, as I said, we think that this Court has reaffirmed Employees and recognized that Employees began the retreat from Parden, but even just looking at the text of Employees, I think it's consistent with the argument and the distinctions that I'm drawing today. 

The Court there said that the cause of action by its literal terms covered state agencies, but it recognized that the relevant question was whether Congress had intend -intended to bring the states to heel by lifting their immunity. So it recognized that was a distinct question, and then it said Congress wouldn't have done that silently. 

And, in particular, it said that if Congress had intended to do that, it would have done one of two things. It -- it either would have addressed immunity expressly, or it would have amended the cause of action, and in that context, what that would have meant was adding a specific reference to state agencies to the cause of action.

And because Congress hadn't done either of those things, the Court in Employees found there wasn't a clear waiver. We think the same thing is true here.

Brett M. Kavanaugh: So then, to pick up on Justice Kagan's questions earlier, if you see Employees on one side of the line and you see cases like Kimel on the other side of the line, where the -- where the reference to the public entities is in the cause of action itself, that's slicing it pretty thin. 

Like, what sense does that make or what principle would undergird sticking to Employees in the way that you're advocating?

Benjamin W. Snyder: So I think, in the cases like Kimel, there's a superfluity argument that unless you hold that Congress has waived sovereign immunity, that text in the cause of action will do absolutely no work. And so the Court has said Congress wouldn't have effectively negated that and has been willing to infer a waiver of immunity.

But Respondent has conceded that our interpretation doesn't produce any superfluity here. So even if you think that probably members of Congress intended to waive sovereign immunity, there's no necessary implication that they must have. And under the clear statement rule and under Employees, that's enough to rule for us.

Brett M. Kavanaugh: Can you give me just one quick example of how it's not superfluous --

Benjamin W. Snyder: So --

Brett M. Kavanaugh: -- if you were to prevail here?

Benjamin W. Snyder: -- so "person" would cover entities other -- private parties other than credit reporting agencies that furnish information to those credit reporting agencies.

Brett M. Kavanaugh: No, the coverage of government, how the coverage of government wouldn't be superfluous even if you were to prevail here.

Benjamin W. Snyder: So the coverage of government ensures that the government can obtain credit reports. I mean, the -- the coverage of government was there before the cause of action, so the one thing we know is that the coverage of government is not there in order to allow recovery under the cause of action.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: In Employees, are we bound as a part of the holding the methodology applied by the case? Because it seems to me like that's what you're arguing, that this is the methodology that the case employed, and so we must follow the same methodology as -- so is that part of the holding?

Benjamin W. Snyder: I -- I think that is part of the holding. I mean, the other thing I would say here is that when you're talking about implications, the -- the cause of action doesn't expressly say anything about sovereign immunity. So you can only find a waiver by thinking that in adopting that cause of action, Congress must also have intended to create a waiver.

And if you were a member of Congress and you looked at Employees and you said: All right, I've got a -- a cause of action that applies to a general term, if I define that general term somewhere else in a way that it covers sovereigns, will that lead to a waiver of sovereign immunity.

Amy Coney Barrett: So Employees is part of the backdrop against which Congress legislated in its methodology?

Benjamin W. Snyder: So, I -- I mean, I think it makes it plausible to think that members of Congress would not have understood just the bare creation of a broad cause of action as sufficient to take the analytically distinct step of waiving sovereign immunity.

Amy Coney Barrett: Okay. Second question. Q is your best argument. If it wasn't in the statute, would you lose?

Benjamin W. Snyder: No. If -- if it wasn't in the statute, we would still have exactly the same argument under Employees, and things like the fact that 1681n and O would be unconstitutional as applied to the states, I think, would still give us a --

Amy Coney Barrett: Well, unless the states waive their sovereign immunity.

Benjamin W. Snyder: Yes. I mean, of course, you could say the same thing about application to federal agencies, that there are some federal agencies as to which Congress has waived all immunity. 

And so, if you want to just read 1681n and o as creating causes of action that apply when there's a waiver from someone else -somewhere else, you can do that with the federal government too. 

But my understanding of Respondent's argument is that Congress was intending to eliminate sovereign immunity in 1681n and o, and if that's right, then Congress is acting blatantly unconstitutionally with respect to the states and didn't say anything at all about the Seminole Tribe decision from just a few months earlier. We think that's unlikely.

Amy Coney Barrett: Last question. Where are you getting the definition that you gave Justice Kagan when she asked you what "person" would mean there? Is that just kind of what ordinary people would understand? Is that the Dictionary Act?

Benjamin W. Snyder: It's both. I mean, I think the Dictionary Act definition comports with how an informed legal reader would understand the word "person" in most places, and we think that that -- that understanding makes sense in 1681q, so we think it makes sense that Congress could have plausibly used it in the same sense nearby in n and o.

Amy Coney Barrett: Thank you, Mr. Snyder.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: So I guess I perceive Employees as being structurally dissimilar in relevant ways in light of its amendment history, and so I'm hoping that you can comment on that. 

I mean, it seems to me that what happened in Employees, to the extent that there was some uncertainty about what Congress did, it was because Congress amended the definitions section, right, to include governments, and that definitions section applied to a whole host of things in the statute, the duties, the liabilities, or whatnot, and so there was palpable uncertainty on the Court's part as to whether expanding -- what was it -- employers to include government actually affected a waiver of liability with respect to the liability section.

It seems to me here, when we have the amendment to the liability section expanding, as you conceded previously, the liability section to include other entities by use of the term "person" that had been previously defined to include government, we're actually accomplishing a different result. 

It seems to me there isn't the same kind of uncertainty in the relevant situation of whether or not they intended to expand liability, which is what we need for the purpose of a waiver. 

Can you comment on that?

Benjamin W. Snyder: Sure. So -- so two things in response. The first is that I -- I think this Court has ordinarily said you just look at the statute as it exists. I mean, Respondent has said you should look at it as it exists today.

Ketanji Brown Jackson: But that's not what happened in Employees. So, if we're going to go with Employees, which -- which is what you -you're saying, we're going with that methodology, they didn't just do a plain text. They were talking about what Congress's intent was, isn't it strange that Congress amended it and didn't amend the liability provision. And what I'm saying is, here, they did.

Benjamin W. Snyder: So I -- I think, if you want to look at that timing, I think the timing actually cuts the other way because, in Employ -- in Employees, what Congress was doing was taking a statute that already authorized civil liability against -- against employers and saying we want state agencies to be employers for purposes of this statute. We're going to -we're going to cover them under the same definition that until now has covered all employers. 

And so, in that circumstance, it might have been reasonable to think that Congress intended state agencies to be covered in exactly the same way as all other employers because Congress was specifically focused on state agencies. And yet --

Ketanji Brown Jackson: Yes, but it wasn't focused on liability for this purpose. That's my only point. Can I ask you another question?

I guess I hear you suggesting that there has to be an express mention of the federal government in the provision. So I'm wondering, is the government not conceding that we have said that you can satisfy the clear statement rule by implication?

Benjamin W. Snyder: No, we accept that you can establish it by implication. As the Court said in College Savings Bank, it has to be overwhelming implication.

Ketanji Brown Jackson: Right. But -- so an implication could occur when what? In other words, it seems to me here that there is no mention of sovereign immunity, so we're operating in implication land. The implication is coming from the creation of a cause of action that applies to the government. You're arguing as to whether or not it applies to the government. No, you're not?

Benjamin W. Snyder: No, we're not arguing -so --

Ketanji Brown Jackson: Okay.

Benjamin W. Snyder: -- we have a different action about what whether the cause of action applies to the government.

Ketanji Brown Jackson: I see.

Benjamin W. Snyder: But this part of the argument --

Ketanji Brown Jackson: Okay.

Benjamin W. Snyder: -- we say even if you think "person" includes the government, all that does is show that the cause of action applies to the government.

Ketanji Brown Jackson: And isn't that enough to be the implication?

Benjamin W. Snyder: No.

Ketanji Brown Jackson: Why?

Benjamin W. Snyder: Because the fact that you have a cause of action that covers a particular defendant doesn't speak one way or the other to whether that defendant may have particular available defenses. No one would think it's strange that this cause of action applies to private parties that violated FCRA more than five years ago. By its plain terms, it absolutely permits that.

Ketanji Brown Jackson: I -- I don't understand that. I mean, we're -- we're talking -- we start from the standpoint of, has there been a waiver of sovereign immunity? That's the question that we're asking to begin with. That's why we're engaged in this exercise.

So, when we start there, I'm not sure I understand whether or not there are other defenses available doing any work with respect to us trying to determine whether sovereign immunity has been waived.

Benjamin W. Snyder: So this Court said in Meyer that the question of the -- the cause of action and the question of the defense of sovereign immunity are analytically distinct. And that's the --

Ketanji Brown Jackson: So then there's no implication on the basis of the cause of action.

Benjamin W. Snyder: No, there can be implication. I -- I know that I'm drawing fine lines, but, logically, there is an implication that Congress intends to waive sovereign immunity if it creates a cause of action that applies only to sovereign defendants or that expressly names sovereign defendants.

Ketanji Brown Jackson: So it has to be explicit with respect to -- it can't be that they do so by naming all these other entities and adding in government. Is that your point? It has to either be stand-alone just the word "government" in the "person" definition, or it has to be written "government" in the actual 1618n?

Benjamin W. Snyder: Yes, because that is the only circumstance in which the statutory text that -- that refers to "government" would have no effect if the government were able to assert sovereign immunity.

Ketanji Brown Jackson: And where have we said that before?

Benjamin W. Snyder: So I read the Court's decision in Financial Oversight and Management Board to say that. I think that's the only way that you can reconcile cases like Kimel on the one hand and Employees on the other, is to say that Congress distinguishes in this way. 

And if you look at statutes like RCRA and the MPRSA that we point to at pages 22 to 24 of our brief, Congress has done what we've said it could have done here. Congress has said it's authorizing suit against any person, comma, including the United States. We agree --

Ketanji Brown Jackson: All right.

Benjamin W. Snyder: -- that that gives rise to the implication.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Mr. Joshi.

Nandan M. Joshi: Mr. Chief Justice, and may it please the Court: 

The Fair Credit Reporting Act imposes civil liability on any person that negligently or willfully fails to comply with FCRA's requirements. It expressly defines "person" to include any government agency. The term "person" is equivalent to its definition, and when FCRA's definition of "person" is plugged into FCRA's civil liability provisions, those provisions create causes of action against federal agencies that are clear and specific enough to waive sovereign immunity. 

Congress was not required to state that "persons" include federal agencies a second time in the cause of action to make its intent clear. Congress knew what it was doing when it amended FCRA in 1996. When it did so, it consistently used the term "person" to describe both who would be subject to FCRA's substantive duties and who would be subject to FCRA's enforcement mechanisms. 

Interpreting "person" to mean something different in the enforcement provisions would make FCRA's substantive duties completely unenforceable against governmental furnishers. 

Moreover, Congress knew how to and did choose words to alter the scope of liability where it wanted to do so. Thus, where Section 1681n generally provides for damages against "any person," 1681n[a][1][B] creates a special remedy for certain violations by a natural person. That was a -- an amendment in 1996 as well. 

Congress also expressly limited the government's liability in FCRA's sister statute in the Consumer Credit Protection Act. It did not do so in FCRA, indicating that Congress intended no such limitation.

I welcome the Court's questions.

Clarence Thomas: Counsel, the -there's much discussion about Employees, and I'd like you to address that, what the government argued, but I'd also like you to consider addressing whether or not the -- what's necessary to -- for the government to abrogate state sovereign immunity, whether that standard is the same as the standard for waiving its own sovereign immunity.

Nandan M. Joshi: Sure. So, on Employees, I think the best sort of empirical evidence of its continuing force are the five courts of appeals that have addressed this very issue, the question of whether FCRA waives sovereign immunity. 

That -- there's a 3-2 circuit split on that. The government has raised Employees in each one of those cases. Not one single court, not even the two that agree with the government's position, thought Employees was worth discussing. It's too out -- I -- I suggest that's because it's -- the analysis does not comport with how the Court reads statutes in the modern era.

Employees, as I read it, was telling Congress how to craft an amendment to make its intent clear. The modern -- the -- sort of the current way the Court discerns congressional intent is to look at the provisions as a whole, the amending provisions, as well as the original provisions, and construe them together. And Employees is inconsistent with that. 

The other thing to point --

Brett M. Kavanaugh: I'm sorry. I -- I -- I don't understand that, really, looking at Employees, because it relies on the text of the provision and says that because the addition of public employees -- employers was in a separate definitional provision, that wasn't good enough. 

And then the dissent echoes your argument. Justice Brennan's dissent says that it's the sheerest sort of ritualism to suggest that Congress excluded the states from 16[b] suits by not expressly referring to the states in 16[b]. In other words, Justice Brennan was saying you're being too textualist, majority opinion, in -- in how you're going about this. 

And the majority said -- I read it as establishing a principle -- well, we're going to draw the line here. If it's just in the definitional section, that's not good enough for a waiver.

Nandan M. Joshi: So Employees started off by looking at the legislative history to discern what Congress wanted to do when it amended the FLSA in 1966.

Brett M. Kavanaugh: The -- the principle rested on the text. I mean, I acknowledge that then it went on to the legislative history. It might have had an even looser standard for waiver of sovereign immunity than we now apply. But, even under that looser standard, the Court said no, no waiver.

Nandan M. Joshi: Well, the -- the textual part of Employees --

Brett M. Kavanaugh: And so a fortiori

Nandan M. Joshi: Yeah.

Brett M. Kavanaugh: -- you're in trouble if -- if we take Employees seriously. At least I want you to respond to that.

Nandan M. Joshi: Sure. I -- I do think the text -- the textual part of Employees, which indicated the Court would find it surprising, I think that's the exact quote, if Congress chose to amend the FLSA but did not amend it in this way. Now the Court says that Congress does not have -- have to use magic words and it doesn't have to use a magic structure, I would say, doesn't have to state its intent in any particular way.

Brett M. Kavanaugh: Well, do you still agree there's a clear statement rule that can override the better reading of the text?

Nandan M. Joshi: There is a clear statement rule. We don't fight that. I don't think --

Brett M. Kavanaugh: Can it -- can it override the better reading of the text? Because that is the meaning --

Nandan M. Joshi: Yes. No, we --

Brett M. Kavanaugh: -- of a clear statement rule.

Nandan M. Joshi: -- we don't question that there has to be one plausible meaning of the text in order for us to prevail.

Brett M. Kavanaugh: Okay. I think --

Nandan M. Joshi: But let me just --

Brett M. Kavanaugh: -- I interrupted you before you answered Justice Thomas's --

Nandan M. Joshi: Yeah. Well, the other --

Brett M. Kavanaugh: -- question about federal versus states, so you go ahead.

Nandan M. Joshi: Sure. Well, the last thing I would point out about Employees before I turn to federal versus state is that a critical part of Employees was that the government could -- the federal government could still enforce the FLSA against the states. The government's argument here takes us a step further and says no one, not even the federal government or the state governments, can enforce Employees against any governmental furnishers because the term "person" does not apply -- the definition of "person" does not apply to 1681s, which is the administrative enforcement provision. So this would be a step beyond Employees. 

On the federal versus state issue, Congress -- I don't think there's a different textual standard in this Court's cases between waiving sovereign immunity and abrogating state immunity. It's simply that what Seminole Tribe and its progeny hold is that where there's a conflict between what Congress wants and what the state wants, the state wins absent -- unless the -- it's in a few discrete areas where the Constitution abrogates state sovereign immunity or it's a Fourteenth Amendment case.

But, if this statute were in the Fourteenth Amendment context, I think this language would be sufficient to abrogate state sovereign immunity just as it waives federal sovereign immunity.

John G. Roberts, Jr.: Counsel, it -I think it's an unavoidable consequence of your interpretation that the statute authorizes criminal prosecution of the United States. 

Now, if there were such a prosecution and the United States were convicted, what would the pre-sentencing report look like? 

[Laughter.]

Nandan M. Joshi: So, as a technical matter, I -- I would say the proper defendant in a FCRA action would be an agency, not the United States itself. That said, I don't think this Court has squarely held how far the federal -- the absence of criminal liability for federal -- for governmental entities extends. Last year, in Halk Bank, you -- I think you said that criminal law can apply to foreign states and their arms. I don't -- I don't think you've said that in the context of domestic agencies.

In Bennett versus Spear, you suggested that perhaps agencies could be criminally -criminally liable or civilly liable for failing to -- to adhere to a biological opinion.

John G. Roberts, Jr.: So -- so you agree that your -- your reading of the statute leads to that result, that -- that a criminal prosecution can be brought against the United States, whether it's through a United States agency or the nation as a whole?

Nandan M. Joshi: That -- that is one reading. This -- this Court -- I mean, I can't say it's absurd since this Court has not said it -- it's absurd previously. That said, I -- I -the easier path I think for this Court would be to follow what Judge Katsas said in the D.C. Circuit in the Mowrer decision, what Judge Krause said below, which is that any contextual reason you might have for disregarding an otherwise controlling statutory definition in the criminal context is unique to the criminal context.

Elena Kagan: Well, but how --

Brett M. Kavanaugh: Why is that?

Elena Kagan: -- does that work? I mean, n and o and q are all added at the same time. We can add s to that too because s raises its own anomalies. They're all -- they're all enacted at the same time. And -- and they're all different kinds of liability provisions. 

And you're essentially saying -- and you're right that Judge Krause said this below, Judge Katsas said it, but you're saying, well, you -- you know, it fits with n and o, so we'll use one interpretation there. It doesn't fit with q, so we'll use a different interpretation there.

Nandan M. Joshi: So -- so one correction. Q stems from the original 1970 act that enacted the definition of "person." The 1996 Act, Congress amended the civil liability provision and amended the administrative enforcement provision to extend -- authorize enforcement against persons. But it didn't -- it didn't add in the term "person" in 1681q in 1996. That's

Elena Kagan: Okay.

Nandan M. Joshi: It enhanced the penalties in the definition. With that said, each - there's no -- I think, well, the civil -- q rests as sort of a stand-alone self-contained provision. It doesn't interact with the rest of the FC -- the rest of the FCRA in any way.

It contains its own substantive prohibition and its own criminal penalties, whereas you have the liability provisions and the enforcement provisions, which are designed to enforce the substantive --

Brett M. Kavanaugh: But you're --

Nandan M. Joshi: -- provisions of FCRA.

Brett M. Kavanaugh: -- to pick up on the Chief Justice's question, it's not just criminal prosecution against the United States, it's punitive damages against the United States, very unusual. State and federal enforcement against the United States would be contemplated if we took your interpretation. 

There's an express waiver in another provision that was enacted months earlier, the government says that's an anomaly. The Privacy Act is a carefully reticulated scheme for imposing liability on the government for Privacy Act violations. They're saying that you would create this anomaly.

So there's a string of anomalies that the other -- that the government says would be created by -- by your position.

Nandan M. Joshi: Well, I think the only one that qualifies as even a debatable anomaly would be 1681q. The government -- it just doesn't -I don't think they've made any --

Ketanji Brown Jackson: I thought your --

Nandan M. Joshi: -- case about what --

Ketanji Brown Jackson: -- I thought the answer was that it's not that the definition is shrinking or expanding provision by provision the definition of "person," that you can have this group of entities that are defined statutorily as persons and that carries throughout the whole statute. 

But there may be various provisions in which subsets of persons are carved out because they have other defenses. I mean, just because "person" is there doesn't mean that, you know, every person will automatically and always be subject to the entirety of that separate provision.

As the government said, they could have separate defenses. They could have other reasons why they're not subject to criminal liability even though they're still persons for the purpose of the statute.

So, if that's happening, then the government's observation that in certain parts of the statute persons are not going to -- to -or governments, even though they're persons, are not going to be subject to that part of the statute, it seems to me, doesn't really help their argument because, as Justice Gorsuch said, we don't see even that happening in n and o, which is really all that is at issue here.

Nandan M. Joshi: Right. I think the government argument really tries to focus on provisions away from n and o because there is no textual basis in looking at n and o for not applying the definition as written.

Ketanji Brown Jackson: And there's no real basis for suggesting that -- that notwithstanding the statute saying that "persons" is defined in this way throughout the entirety of the provision, sometimes it's not really defined this way.

It seems to me that is an implausible reading of the text of the statute that very clearly defines the term and says it applies everywhere.

So, if it's not actually operative in certain places, it's not because the definition has changed. It's because something else is going on that would prevent that consequence occurring in that particular circumstance.

Nandan M. Joshi: I think that's right. For example, in 1681g, subsection g, Congress has an expressed alternative definition of "person" for purposes of that provision. That doesn't mean somehow n and o become ambiguous in terms of where the definition applies.

Brett M. Kavanaugh: Do you -- do you

John G. Roberts, Jr.: Well, it's not only --

Brett M. Kavanaugh: -- do you think --

John G. Roberts, Jr.: -- that you think that it's right, but under our sovereign immunity precedent, that has to be the only way of reading it? 

In other words, there's no other way and all these other areas where "person" doesn't actually mean person the way it's defined in the statute but means much less, and there's not just one, there's two, there's three, and you have to say that changing the reading of "person" is the only way you could read that because, if it isn't, then there is -- then sovereign immunity, it seems, is implicit in the statute in a way that other provisions may not be.

Nandan M. Joshi: Well, I -- assuming the -the hypothetical, which is that there are variations in what "person" means throughout the statute --

John G. Roberts, Jr.: It's not my hypothetical, but go ahead.

Nandan M. Joshi: Yes. The -- the fact remains, if the Court's going to depart from the otherwise controlling definition, it looks to something else in the statute that provides a countervailing argument. 

For example, Utility Air was brought up. The Court looked to provisions of the statute that said, if we apply the definition of "air pollutant" to these provisions, we have an unworkable statute.

And to the extent you conclude that "person" doesn't apply to 1681q because that's unworkable or improbable that Congress intended to extend criminal liability this far, that is a -- that is an argument, an interpretation that would be limited to 1681q.

John G. Roberts, Jr.: Well, you say in the statute, but I guess the argument is that there can be limitations outside the statute that would apply as well. 

And I'm thinking in particular of our decision in the Bond case, the -- the -- the chemical on the doorknob that is under one interpretation, perhaps literal interpretation of the statute would be covered by the Chemical Weapons Treaty. And we said that sometimes arguments like, well, that seems pretty implausible can trump what would otherwise be a pretty precise reading of the statutory language.

Nandan M. Joshi: Well, that's right. I think Bond -- Bond is a good foil for this case. The Court found -- your opinion for the Court found that the statute was ambiguous. And, I mean, I agree that if this statute is ambiguous, then the -- the sovereign immunity canon favors the government.

But if -- but the -- the -- there, the definition the Court called improbably broad, there's nothing improbably broad about defining "person" to include the government. The Court has said, if Congress wants to not have the ordinary meaning of "person" applied --

John G. Roberts, Jr.: Well, I -- I would have thought -- sorry to interrupt, but I -- I would have thought it's -- the improbability comes from the argument that this would mean you can prosecute the United States, it can mean that you can get damages from the United States and so on and so forth.

Nandan M. Joshi: Well, even if prosecuting the United States is improbable, seek -obtaining damages from the United States is not improbable. Congress waived sovereign immunity in a number of statutes.

John G. Roberts, Jr.: Well, it's pretty improbable for the statute to authorize the FTC to seek damages from the United States, which is what it does.

Nandan M. Joshi: Well, the Equal Credit Opportunity Act, I think, does the same thing. It set up the same sort of enforcement mechanism. There are other -- there are other statutory schemes that authorize intergovernmental liability, our Resource Conservation Recovery Act --

Brett M. Kavanaugh: You -- keep going.

Nandan M. Joshi: No. I -- I --

Brett M. Kavanaugh: Okay. You -- you said at the beginning and I think just now that Congress knew what it was doing when it amended the Act. But I don't think it realized that it was imposing this liability. If you look at the CBO, Congressional Budget Office, reports, there's no mention of anything, any liability like this. 

And they carefully analyze how much the additional costs would be for the executive branch in enforcement and the judicial branch in handling the additional cases. So -- and the CBA -- CBO score, as you know and anyone familiar with that process knows, is very important for Congress. So I -- I don't think it's right to say Congress knew what it was doing.

You may -- could still win without that, but I think that's not -- not correct, unless you want to respond to that in some way.

Nandan M. Joshi: Well -- well, I don't think the CBO is itself Congress. And Congress

Brett M. Kavanaugh: Correct.

Nandan M. Joshi: I mean, what -- what is --

Brett M. Kavanaugh: But they do -- do you challenge that Congress relies on the CBO score when it's doing legislation?

Nandan M. Joshi: No, it's -- it's -- it's part --

Brett M. Kavanaugh: Yeah.

Nandan M. Joshi: -- of the committee reports.

Brett M. Kavanaugh: Yeah, I think you have to acknowledge that.

Nandan M. Joshi: I -- I accept the proposition that the legislative history doesn't say one thing or another about sovereign immunity. 

The -- the -- the legislative history does talk about the purpose of the statute, and that is consistent with a conclusion that Congress wanted to hold the government liable just as any private furnisher of information would be for -- for failing to comply with their FCRA duties.

Brett M. Kavanaugh: Can I -- can I also, on a different tack, Justice Gorsuch raised an important question, I thought, about federal versus state sovereign immunity, and you heard I -- I mentioned separation of powers. 

My understanding was that the reason we have that is because taxpayer money is -- is valuable and we should be sure it's been appropriated before we funnel a bunch of money out of the Treasury. That's both to ensure that money can be spent on other programs because it's not limitless money in the Treasury, and it's to ensure otherwise that taxes aren't raised. So we have to be very careful before we overstep, as basic separation of powers. 

Do you dispute any of that?

Nandan M. Joshi: Not at all. You have two principles that are designed to protect that interest. One is the sovereign immunity canon. 

So, if the -- a statute is ambiguous, the sovereign immunity canon would say even the government gets the benefit of ambiguities even if that's not the best reading of the statute.

And the second one is the specificity requirement, so a broad statute cannot waive sovereign immunity. The -- the statute must discuss governmental entities specifically, which the definition here does.

Neil Gorsuch: Counsel, I guess I'm a little confused why -- I mean, I can understand that you don't need to make the argument to prevail in your view, but I -- I'm not sure I understand your response to Justice Kavanaugh from first principles. 

Sovereign immunity serves many important purposes in respecting other institutions, states, tribes, foreign governments. It's inherent in our constitutional design, embodied in the Tenth Amendment even, for example. 

But, when it comes -- if we're worried about protecting the federal fisc, I would have thought that the answer might be Congress is in the best position to do that. Article I gives them power over the federal fisc. And we have no license to expand or contract its instructions artificially but follow them in - instead faithfully.

Nandan M. Joshi: I mean, that's right. At bottom, this is a policy choice for Congress to make.

Neil Gorsuch: One would have thought.

Brett M. Kavanaugh: Why is there a clear statement rule then?

Nandan M. Joshi: Well, just as with other policy choices, the Court -- if the -- the area is a particularly sensitive one, the Court wants

Brett M. Kavanaugh: Why -- why -- why is it sensitive?

Neil Gorsuch: What isn't sensitive?

Brett M. Kavanaugh: Why -- why is it sensitive? Focus on that if you could.

Nandan M. Joshi: Well, I -- I think the Court takes holding the government liable, especially for damages, seriously. So it wants -- doesn't want to construe ambiguous text in -in a way that may be different than Congress understood ambiguous text. But, when the text is clear, that's a different matter altogether.

When there's only one plausible interpretation of the text under traditional rules of statutory interpretation, the Court shouldn't be applying a different interpretation of the statute.

Elena Kagan: Some of our cases have suggested that the reason we have a clear statement rule is to, in this area, prevent the waiver of sovereign immunity accidentally, you know, that there has to be -- it can't be through inadvertence that Congress has waived sovereign immunity. 

So you could look at this statute and especially the q problem and so forth and say that the waiver was -- was accidental, it was inadvertent, and that's exactly what the clear statement rule tries to prevent. So what would -- what -- what would be your best counter to that?

Nandan M. Joshi: So I have two counters. One is about statutory interpretation. One is FCRA-specific. 

The first one is I -- I -- I don't see how you have a workable principle of statutory interpretation that looks behind clear text to say, did Congress really mean this?

So, for example, if the 1996 Act had reenacted the definition of "person" word for word, if the committee report had said we're doing this because we want to make clear the government is liable, this -- the words of the 

U.S. Code would be exactly the same. But, under a rule that looks behind the text, the -- the outcome would be completely different. 

And the FCRA-specific argument is -- I mean, here, you have a situation, as I mentioned in my opening, Congress didn't just sort of make a single amendment to the -- to FCRA. It amended the civil liability provision to extend to persons in Section 2412 of the 1996 amendment. On the very next page on the very next section, 2413, it used the word "person" to extend furnisher obligations onto those who furnish information to consumer reporting agencies. 

And I think it -- it's fairly implausible that when Congress turned the page, it somehow, using the same word, intended a different definition of the term to apply.

Samuel A. Alito, Jr.: Could I ask you a couple questions about Employees? First, suppose that Employees had decided the very issue that is before us now. Would you say that we should disregard it because it used an outmoded method of statutory interpretation?

Nandan M. Joshi: Well, if Employees had decided the Fair Credit Reporting Act, I think there was an argument for statutory stare decisis that might still apply to the FLSA, but since -- since that doesn't apply here, I -- I would -- I think the Court should and has in the past in the case of implied causes of action, has rejected prior methods of interpretation that -- that had become outmoded.

Samuel A. Alito, Jr.: And was that a "yes" or a "no"?

Nandan M. Joshi: I --

Samuel A. Alito, Jr.: Or maybe?

Nandan M. Joshi: -- may have lost the thought on the original question, but I --

Samuel A. Alito, Jr.: Yeah. If it involved the very question that is before us now --

Nandan M. Joshi: Yeah.

Samuel A. Alito, Jr.: -- would -- do you think we should -- we would disregard it or we should disregard it because we disagree with the method of statutory interpretation?

Nandan M. Joshi: If it's the very question in a different statute, my answer would be the same. The Court should not follow Employees and should instead apply -- read the statute the way it currently reads statutes.

Samuel A. Alito, Jr.: Okay. That's my -- I think you -- you went into my second question. Suppose that the statute is different, but the structure -- the wording and the structure in all relevant respects is the same. Do you think we should disregard it because of its method of statutory interpretation?

Nandan M. Joshi: Yes, I think you should. When -- now, when you say the same, there are a lot of differences between the statute there and here, but just to answer your hypothetical, you shouldn't follow a method of interpretation that you had rejected previously in -- in construing a new statute.

Samuel A. Alito, Jr.: There are a lot of important decisions from the 1970s and the 1980s that use a method of statutory interpretation that is probably not the one that we would use if those questions came before us today. You think we -- we should just disregard all those? They're all fair game? Are they all fair game?

Nandan M. Joshi: I -- I -- I think the -it's open to certainly litigants to argue that the Court should -- the statutes say something different.

Elena Kagan: Well, the answer to that question has got to be no, right, Mr. Joshi? 

[Laughter.] 

I mean, we're not going to throw out all our precedents because we've decided that there's a better way to interpret statutes.

Nandan M. Joshi: No. No, that's right. I mean, I'm not talking about an over --

Elena Kagan: So you have to be saying that this is a different statute, and you are saying that it has a different structure, right?

Nandan M. Joshi: I'm saying both of those things. I -- I -- maybe I misread the - misunderstood the hypothetical.

Brett M. Kavanaugh: I didn't think you said it had a different structure. I thought you said that the methodology used --

Nandan M. Joshi: No, the statute had --

Brett M. Kavanaugh: -- a methodology

Nandan M. Joshi: Well, the statute has a different structure because, in Employees, the government could still enforce the FLSA against states. That was an important part of the Employees decision.

Brett M. Kavanaugh: What do you do -you've treated Employees as if it's this one-off outlier, but then, in subsequent cases, like Union Gas, it seems like the same principles, accepted by all nine justices there, in other words, the specific reference to states in the original Act in Union Gas, the Court goes out of its way to say that alone -- in the definitional provisions, that alone would not have been good enough to do it and cites -- cites Employees. 

And then, in College Savings Bank, the Court makes a big point that Employees started the retreat from Parden, which was a much looser standard for waiver of sovereign immunity. So it's not an out -- you know, it's not just this case has never been cited again.

Nandan M. Joshi: It hasn't been cited for the statutory interpretation point, I think, until -- in any subsequent -- since the late '80s. I think, in -- in Union Gas, you're -you're correct, the statute was written differently. There was additional language in the definitions section that -- that -- that was dispositive to the Court's analysis there. 

So the Court didn't have to sort of reach out and, you know, try to address the question the Court might have to address here, which is how viable is that sort of method of interpretation. And --

Brett M. Kavanaugh: By method of interpretation -- I just want to get back to this because I -- I -- it mentions the text and it mentions this principle we don't lightly interpret the text to waive sovereign immunity. And then there's nothing else that would suggest -- in the history of it, suggest a waiver either. I don't -- that sounds like an opinion you could write now and has been written now.

Nandan M. Joshi: Well, there's nothing in Employees that sort of grapples with why the statutory definition in that case was not -does not meet the clear statement standard.

Brett M. Kavanaugh: I thought it said because the reference to government, to public employee -- employers was not in the -- in the cause of action provision.

Nandan M. Joshi: Well, that -- that -- if that's how Employees is read, then that is inconsistent, I would argue, with what the Court has said since, which is that Congress can state its intent in any way it wants. 

And if you simply foreclose use of statutory definitions in -- in -- in Congress's ability to state -- state its intent, I think --

Brett M. Kavanaugh: It's a thin line, but the line has been between in the cause of action provision itself is the explicit reference and in a separate definitional provision, as in -- as in Employees and mentioned in Union Gas as well, that's different. 

Now that's a thin line. I might not have come up with that if I were starting from scratch, but --

Ketanji Brown Jackson: But is it -- is it really a line at all? I mean, what if -- what if we have the definition provision in -- the definition provision next to the cause of action provision? 

I mean, here, it's in a, fine. But you can imagine a world in which they write 1681n and 1 is the provision that says any person willfully, et cetera, and 2 is "person" means, and they list out the statute, list out the entities. 

I mean, I -- I think it's -- it's so fine a line that it probably is nonexistent from -- from the standpoint of really understanding what's going on.

Nandan M. Joshi: I do think it's a fairly arbitrary line if you hold onto it, if you can say -- you try to refashion Employees into the modern era and say this is the line we're going to draw in terms of telling Congress how it needs to write a statute, do not put your -your -- identify your -- the government's -- any governments in the statutory definition, put it in the cause of action, then that's -- that's - that's one thing. JUSTICE KAVANAUGH: It's a --

But --

Brett M. Kavanaugh: -- it's a good point. It's exactly the Brennan dissent, but I said that before, but, yeah.

Nandan M. Joshi: But the -- I mean, once again, I would point out that none of the courts of appeals that have addressed this issue read Employees that way. They --

Brett M. Kavanaugh: Well, two of --

Nandan M. Joshi: Two of them don't even --

Brett M. Kavanaugh: -- two of the --

Nandan M. Joshi: -- cite -- cite it. JUSTICE KAVANAUGH: Yeah, they don't cite it. And in at least one, D.C., it wasn't even raised. I'm not sure what happened there. MR. JOSHI: It -- it was raised in the oral argument in D.C. JUSTICE KAVANAUGH: Yeah, but not in the briefs. It wasn't raised. 

Right. That's right. That's the only court that it wasn't in the briefs.

Sonia Sotomayor: Now us setting forth a statement like that, you need to do this, would be contrary to our -- all the jurisprudence in which we say you don't need magic words, correct?

Nandan M. Joshi: I think so. I mean, the way I see it is that the Court is reluctant to tell Congress how to craft legislative language because that is inherently tied to policymaking, which is inherently an Article I type of function. 

And so even though the Court, you know, will interpret the words Congress does use, it -- it's not going to tell Congress, for example, if you list out sovereigns in a definition, you better include Indian tribes or else we're going to assume you don't mean it. 

It's going to -- what -- what's -what the Court's going to do, as it did in Lac du Flambeau, is to say we're going to take the words Congress has given us and we're going to interpret it. If it's ambiguous, the government gets the benefit of the doubt. If it's not ambiguous, we're going to give the text its plain meaning. 

And -- and this text is not ambiguous.

Ketanji Brown Jackson: Do -- do you -- do you take any stock on the amendment history? I mean, you know, I -- I appreciate the plain meaning, we just look at the statute and see what it says, and maybe, in that world, it is parallel to Employees. 

But Employees seemed to put some stock in the amendment history as it analyzed what was going on, saying that it -- it was surprised that Congress had not amended the cause of action. 

And, here, we have an amendment history that shows that Congress was amending the cause of action. And so, if our ultimate question is how do we -- how and whether we should be implying some kind of intention on Congress's part to extend the cause of action to government, is the amendment history relevant at all?

Nandan M. Joshi: Well, I think it definitely is relevant that Congress amended the cause -- cause of action. Even if you take Employees at face value, that should be sufficient. I think the other things that go along with that are the fact that Congress amended the cause of action at the same time it imposed substantive duties on governments.

And I think the other thing to keep in mind is that governments are not strangers to the FCRA. Congress accommodates the government's interests throughout the statute, creating exemptions for them, for example, in the national security area, exemptions in terms of the adverse action response requirements that apply to persons, the government in the -- in the -- in the context of national security, Congress has created an exemption for them. 

And then I would indicate again in -in other -- other statutes in the Consumer Credit Protection Act, Congress knew how -- it showed it knows how to create exemptions for the government. TILA, the -- the Truth in Lending Act, extends liability to all creditors. Congress said we don't want -- even though the government is a creditor as defined in that statute, we don't want liability to be imposed, so we're going to create a carve-out for that for the government. 

In the Equal Credit Opportunity Act, Congress enacted that without any exceptions for the government two years later in 1976, and -and that was an act two years -- one year after Employees.

In 1976, they said we don't want punitive damages to be imposed on the government, so it carved out a --

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. 

Justice Thomas? 

Justice Alito?

Samuel A. Alito, Jr.: Just assume for the sake of argument that "person" in q does not include the government. Could you just give me your best answer to the argument that n and o should be treated the same way?

Nandan M. Joshi: N and o deal with civil liability, which deals with the substantive provisions of the statute, all of which use "person" consistently to include the government. It's a different context entirely.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Do you think q doesn't deal with the government because the government can't be jailed, or do you think it doesn't include the government for what other reason?

Nandan M. Joshi: We would -- if that -- if the case were before me, I would say it includes the government because Congress did not create an exemption like it did in the Truth in Lending Act for governmental criminal liability.

Sonia Sotomayor: Correct. And there's all sorts of statutes that I mentioned earlier, the Clean Water Act being the primary one, where the government is included in the criminal provision, and it speaks about jailing and imprisonment.

Nandan M. Joshi: Right.

Sonia Sotomayor: And we just don't imply -- we just don't apply the jailing part because you can't jail a corporate entity, correct, or a --

Nandan M. Joshi: It would be the same analysis for corporate entities and the government. The --

Sonia Sotomayor: So there's -- it's not that you're reading "person" differently in q. You're just saying that some remedies can't be applied?

Nandan M. Joshi: I think -- I think that's right. There are a number of ways to deal with q. I don't think it's just we have arguments in the alternative, including the ones adopted below which say that q is -- does not have -does not speak to the civil liability provisions.

Sonia Sotomayor: That --

Nandan M. Joshi: But --

Sonia Sotomayor: -- that too, but

Nandan M. Joshi: But, I mean, I -- I would say the better reading is to apply the statute as written. If there are problematic applications in a particular criminal proceeding, a court can deal with that at that time. The court doesn't -- usually doesn't avoid a plain language reading of the statute to avoid -- to avoid potential pitfalls down the line if that's what the statute says.

Sonia Sotomayor: All right.

Nandan M. Joshi: However, the Court doesn't have to address, I think, the complicated question of criminal liability because -because of the alternative that was adopted below, which is -- which is to say the concerns are unique to the criminal context and do not apply to civil liability or the substantive duties of FCRA.

John G. Roberts, Jr.: Justice Kagan?

Justice Gorsuch?

Justice Kavanaugh?

Brett M. Kavanaugh: Just on that last point, I don't understand how we could not address it if the argument, as Justice Alito posited, is that -- that if "person" does not include government there, that shows that there's some plausible readings of "person" that would include government elsewhere. I mean --

Nandan M. Joshi: Well, you would address it by saying, even if it doesn't include -- even if "person" doesn't include governments in 1681q, as the courts below have said, that has no bearing on 1681n and o. 

It's not plausible to infer the absence of -- of the definition in the criminal context -- I'm sorry, the absence of the application of the definition in the criminal context to the -- to the civil context. You need a -- you need a different reason.

Brett M. Kavanaugh: And that includes punitive damages?

Nandan M. Joshi: Yes, punitive damages is also a clear statement rule requirement. So, if -- if the Court finds -- I don't think there's a different standard there for punitive damages. In fact, 1681u[j], which the government relies on, has -- has a provision for punitive damages.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: No.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: No.

John G. Roberts, Jr.: Thank you, counsel.

Nandan M. Joshi: Thank you.

John G. Roberts, Jr.: Mr. Snyder, we'll give you three minutes.

Benjamin W. Snyder: Thank you. A few quick points.

First, Justice Kagan -- as Justice Kagan suggested, one of the purposes for the clear statement rule is to make sure that Congress has specifically considered the question of whether it wants to waive sovereign immunity and addressed that. 

One of the reasons to require specific references to sovereign entities in the cause of action itself is to make sure that Congress has made that conscious decision. 

Now my friend acknowledged that there is a specificity requirement. He just thinks that it's satisfied here in the Act-wide definition. The problem with that understanding is that it -- it asks for specificity about the wrong thing. 

The definition that Congress adopted in 1970 does make clear that in some references, the FCRA does cover the government, but it doesn't make clear that Congress was specifically focused on waiving Congress -- the United States' sovereign immunity because it had nothing to do with liability at the time it was adopted. 

There was also a suggestion that perhaps the word "person" means every -- or means the same thing in all parts of the statute, but there are just defenses that exist under the criminal provision perhaps that would exempt the government from liability there. 

We think that's right. We just think that the same thing is true with 1681n and o, that the fact that "person" in those provisions might include the sovereign does not answer the separate question of whether the sovereign has defenses to civil liability any more than it answers the question of whether the sovereign might have defenses to criminal liability. 

And, finally, my friend tried to distinguish Employees. I -- I think, as Justice Kavanaugh alluded to, his arguments sound a lot like the dissent in Employees, which accused the majority opinion of engaging in ritualism by focusing very carefully on exactly what was and was not in the statutory text. But, of course, this Court's decisions today focus the -- follow the approach that the majority took there, not the dissent.

And -- and one other distinction that he attempted to draw was that in Employees, the statute allowed for enforcement by the FTC. But, of course, that's Respondent's position as well. He thinks that FCRA is enforceable by the FTC.

So, if you decide that "person" includes the United States throughout the rest of the Act, FCRA is on all fours with Employees, and -- and we would win even on that -- that understanding. 

Thank you.

John G. Roberts, Jr.: Thank you, counsel. 

The case is submitted.