Earlier this week, the Seventh Circuit rejected an attempt by the U.S. Department of Justice to rewrite a federal statute to suit the Executive Branch’s convenience. In Bormes v. United States, No. 13-1602 (7th Cir. July 22, 2014), the issue was whether the United States can be sued for damages under the Fair Credit Reporting Act, which authorizes litigation against a “person” who willfully or negligently violates the statute. See 15 U.S.C. § 1681n(a). The Act defines “person,” inter alia, as “any . . . government or governmental subdivision or other agency.” Id. § 1681a(b). In an opinion written by Judge Easterbrook, the court of appeals held that “[b]y authorizing monetary relief against every type of government, the United States has waived its sovereign immunity.” Slip op. at 2.
To support its contention that the Act does not waive sovereign immunity, DoJ essentially argued that the statute’s damages provision implicitly and necessarily excludes the United States. According to the court, this was tantamount to maintaining that “the definition [of person] should not be given its natural meaning.” Ibid. The court explained that “Congress need not add ‘we really mean it!’ to make statutes effectual.” Id. at 4 (emphasis added).
The Act was originally enacted in 1970. The damages provision, § 1681n, was broadened in 1996 to encompass “all persons,” but the already broad statutory definition of “person,” § 1681a(b), remained the same. “Apparently no one in the Executive Branch asked Congress to revise the definition of § 1681a(b) when changing the category of entities for which § 1681n authorizes awards of damages.” Id. at 3. The court indicated that “[t]he argument that a silent legislative history prevents giving the enacted text its natural meaning has been made before—and it has not fared well.” Ibid.
The Seventh Circuit did exactly what a court should do when interpreting a federal (or state) statute: Give the statutory text its plain meaning, rather than rewrite it for policy reasons or the Executive Branch’s convenience. The Constitution, of course, provides the proper remedy for a problematic federal statute—leave it to Congress to fix!