DEPARTMENT OF AGRICULTURE RURAL DEVELOPMENT RURAL HOUSING SERV. v. KIRTZ

Certiorari To The United States Court Of Appeals For The Third Circuit

No. 22–846. Argued November 6, 2023—Decided February 8, 2024

The Fair Credit Reporting Act of 1970, as amended by the Consumer Credit Reporting Reform Act of 1996, allows consumers to sue lenders who willfully or negligently supply false information about them to entities that generate credit reports. Respondent Reginald Kirtz secured a loan from a division of the United States Department of Agriculture and later sued the agency for money damages under the FCRA. Kirtz alleged that the USDA falsely told TransUnion—a credit reporting agency—that his account was past due, thus damaging his credit score and his ability to secure loans at affordable rates. The USDA moved to dismiss, invoking sovereign immunity. The District Court sided with the USDA. The Third Circuit reversed, holding that 15 U. S. C. §§1681n and 1681o authorize suits for damages against “any person” who violates the FCRA, and §1681a expressly defines “person” to include “any” government agency. 46 F. 4th 159, 164–166.

Held: A consumer may sue a federal agency for defying the FCRA’s terms. Pp. 4–20.

 (a) As a sovereign, the United States is generally immune from suits seeking money damages unless Congress chooses to waive that immunity. See, e.g., United States v. Testan, 424 U. S. 392, 399. To determine whether Congress has chosen to do so, this Court applies a “clear statement” rule, permitting suit against the government only when “the language of the statute” is “unmistakably clear” in allowing it. Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73.

 Guided by these principles, this Court has found a clear waiver of sovereign immunity “in only two situations.” Financial Oversight and Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc., 598 U. S. 339, 347. “The first is when a statute says . . . that it is stripping immunity from a sovereign entity.” Ibid. The second “is when a statute creates a cause of action” and explicitly “authorizes suit against a government on that claim.” Ibid. Statutes in the second category may not directly address sovereign immunity, but dismissing a claim against the government would negate a claim specifically authorized by Congress. Id., at 348; see Kimel, 528 U. S. 62.

 Applying these principles leads to the conclusion that the FCRA clearly waives sovereign immunity in cases like this one. The FCRA’s requirements apply to “person[s]” who, like the federal government here, furnish information to consumer reporting agencies. §1681s–2(b). Sections 1681n and 1681o create a cause of action for money damages to consumers injured by “[a]ny person” who willfully or negligently fails to comply with the statute’s directive. Section 1681a provides a definition of “person” that includes “any . . . government . . . agency,” §1681a(b), and that applies to the entire Act. That other statutory provisions in the FCRA and elsewhere address the question of sovereign immunity in arguably more obvious terms, see, e.g., §1681u, does not make the waiver of sovereign immunity in the provisions at issue here any less clear. Pp. 4–9.

 (b) The government implies that a cause of action against the government is insufficient to effect a waiver unless accompanied by a separate provision addressing sovereign immunity, but the Court has held that sovereign immunity may be waived even without a separate waiver provision. Financial Oversight and Management Bd., 598 U. S., at 347. Next, the government turns to the canon of superfluity to extrapolate a new rule: A statute should not be read to waive sovereign immunity unless doing so would leave it without any work to perform. Applying its new rule should foreclose suit here, the government submits, because allowing federal agencies a sovereign-immunity defense would not foreclose every suit under §§1681n and 1681o. But this Court has never endorsed the notion that a statute may effect a waiver of sovereign immunity only if that is the sole work it performs. The government theorizes that this Court may not find a waiver of sovereign immunity where substantive provisions like §§1681n and 1681o merely cross-reference a general definition—such as “persons”—that includes both sovereign and non-sovereign entities. Under this Court’s precedents, however, Congress need not “make its clear statement in a single section.” Kimel, 528 U. S., at 76. What matters is whether Congress has authorized a waiver of sovereign immunity that is “clearly discernible” from the sum total of its work. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U. S. 382, 388. Alternatively still, the government points to Atascadero State Hospital v. Scanlon, 473 U. S. 234, and Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, as imposing more demanding rules a court must follow before finding a waiver of sovereign immunity. But these cases arise from a period in which this Court’s approach to sovereign immunity was very different than it is today. Understood in this context, Atascadero stands only for the proposition that Congress must, at a minimum, mention the government when it wishes to scrap sovereign immunity and permit damages claims. The FCRA meets that requirement. Employees is factually distinguishable. Further, the Employees Court considered legislative history all but dispositive despite the statutory text, 411 U. S., at 283, 285, a methodological approach the Court has since repeatedly disavowed. Pp. 9–15.

 (c) The government requests this Court to hold that §§1681n and 1681o do not clearly waive sovereign immunity because they do not “unambiguously incorporate” §1681a’s definition of “person.” But a court must respect definitions given by Congress as “virtually conclusive,” Sturgeon v. Frost, 587 U. S. 28, 56, deviating only when applying it would be incompatible with Congress’[s] regulatory scheme” or would “destro[y] one of the statute’s major purposes.” Digital Realty Trust, Inc. v. Somers, 583 U. S. 149, 163–164. The government cannot meet that standard given that applying the Act’s definitional and civil liability provisions as written to allow suits against federal agencies to proceed seems consistent with the Act’s goal of “ensur[ing] fair and accurate credit reporting.” Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 52. The government notes that giving §1681a’s definition of “person” effect in §§1681n and 1681o would render “not just the federal government, but also individual States” susceptible to consumer suits for money damages. Brief for Petitioner 33. The government finds that result unthinkable because Congress enacted the FCRA pursuant to the Constitution’s Commerce Clause—a provision this Court has held does not endow Congress with the power to abrogate state sovereign immunity. But none of that means the Court may disregard the statute’s clear terms, see Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 57, n. 9, even if state defendants might have a valid constitutional defense to a suit that the federal government does not.

 The government next points to §1681q, a criminal-enforcement provision, to argue that because the federal government cannot be subjected to criminal prosecution, it would be absurd to apply §1681a’s definition of “person” to that provision. Even if the government is right, the power to correct for an absurdity “in one portion of a statute” does not imply a “license to distort other provisions of the statute.” NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571, 579. And the government provides no basis here to suggest that applying §1681a’s definition in §§1681n and 1681o would lead to absurd results. Finally, the argument that the Privacy Act of 1974 covers some of the same ground as the FCRA, and Congress had no reason to supplement its remedies also fails. The government acknowledges that at least some provisions of the FCRA apply to it, and the Court’s duty when two laws are complementary—as is the case here—is to give effect to both. Pp. 15–20.

46 F. 4th 159, affirmed.

 Gorsuch, J., delivered the opinion for a unanimous Court.


Murray v. UBS Securities, LLC, et al.

Certiorari To The United States Court Of Appeals For The Second Circuit

No. 22–660. Argued October 10, 2023—Decided February 8, 2024

Congress enacted the whistleblower protections of the Sarbanes-Oxley Act of 2002 to prohibit publicly traded companies from retaliating against employees who report what they reasonably believe to be instances of criminal fraud or securities law violations. Title 18 U. S. C. §1514A(a) specifically provides that employers may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of ” protected whistleblowing activity. In this case, Trevor Murray filed a whistleblower action in District Court alleging that UBS terminated his employment in violation of §1514A. Murray had worked for UBS as a research strategist in a role that required him to certify—in accordance with applicable Securities and Exchange Commission regulations—that his reports to UBS customers on the firm’s securities business were independently produced and reflected his own views. UBS terminated Murray shortly after he informed his supervisor that two leaders of the UBS trading desk were engaging in what he believed to be unethical and illegal efforts to skew his independent reporting.

  In the District Court, UBS argued it was entitled to judgment as a matter of law on Murray’s whistleblower claim because Murray “failed to produce any evidence that [his supervisor] possessed any sort of retaliatory animus toward him.” The District Court denied the motion. As relevant here, it instructed the jury that, to prove his §1514A claim, Murray must establish by a preponderance of the evidence that his “protected activity was a contributing factor in the termination of his employment.” App. 126–127. If Murray did so, the burden would shift to UBS to “demonstrate by clear and convincing evidence that it would have terminated [Murray’s] employment even if he had not engaged in protected activity.” Id., at 130. The jury found that Murray had established his §1514A claim and UBS had failed to prove that it would have fired Murray even if he had not engaged in protected activity. On appeal, the Second Circuit vacated the jury’s verdict and remanded for a new trial. The Second Circuit held that “[r]etaliatory intent is an element of a section 1514A claim,” and the trial court erred by not instructing the jury on Murray’s burden to prove UBS’s retaliatory intent. 43 F. 4th 254, 258, 262–263.

Held: A whistleblower who invokes §1514A must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with “retaliatory intent.” Pp. 7–15.

 (a) Section 1514A(a)’s text does not reference or include a “retaliatory intent” requirement, and the provision’s mandatory burden- shifting framework cannot be squared with one. In explaining why, and consistent with the Second Circuit’s opinion, the Court treats “retaliatory intent” as meaning something akin to animus.

 Although the Second Circuit and UBS both rely on the word “discriminate” in §1514A(a) to impose a “retaliatory intent” requirement on whistleblower plaintiffs, the word “discriminate” cannot bear that weight. First, placement of the word “discriminate” in the section’s catchall provision suggests that it is meant to capture other adverse employment actions that are not specifically listed, drawing meaning from the terms “discharge, demote, suspend, threaten, [and] harass” rather than imbuing those terms with a new or different meaning. But even accepting UBS’s argument that “discriminate” relates back to and characterizes “discharge,” the word “discriminate” simply does not require retaliatory intent. The “normal definition” of “discrimination” is “differential treatment.” Babb v. Wilkie, 589 U. S. 399, 405. When an employer treats a whistleblower differently, and worse, “because of ” his protected whistleblowing activity, that is actionable discrimination, and the employer’s lack of “animosity” is “irrelevant.” Bostock v. Clayton County, 590 U. S. 644, 658, 663. Pp. 7–10.

 (b) In addition to having no basis in the statutory text, requiring a whistleblower to prove his employer’s retaliatory intent would ignore the statute’s mandatory burden-shifting framework. Burden-shifting frameworks have long provided a key mechanism for getting at “the elusive factual question” of intent in employment discrimination cases. Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 255, n. 8). Burden shifting “forc[es] the defendant to come forward with some response” to the employee’s circumstantial evidence. St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 510–511. Congress decided in Sarbanes-Oxley that the plaintiff ’s burden on intent is only to show that the protected activity was a “contributing factor in the unfavorable personnel action.” 49 U. S. C. §42121(b)(2)(B)(i). If the plaintiff makes that showing, the burden shifts to the employer to “demonstrat[e], by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.” §42121(b)(2)(B)(ii). The contributing-factor burden-shifting framework is meant to be plaintiff-friendly. Here, the Second Circuit erred by making proof of “retaliatory intent” a requirement for satisfaction of the “contributing factor” element. 43 F. 4th, at 259–260. Showing that an employer acted with retaliatory animus is one way of proving that the protected activity was a contributing factor in the adverse employment action, but it is not the only way. Pp. 10–13.

 (c) UBS and its amici argue that, without a retaliatory intent requirement, innocent employers will face liability for legitimate, nonretaliatory personnel decisions. But the statute’s burden-shifting framework does not lead to that result. Section 42121(b)(2)(B)(ii)’s same-action causation inquiry asks whether the employer would have taken the same action against an otherwise identical employee who had not engaged in protected activity. While the contributing-factor framework that Congress chose in Sarbanes-Oxley is not as protective of employers as a motivating-factor framework, that is by design. This Court cannot override Congress’ policy choice by giving employers more protection than the statute provides. Pp. 13–14.

43 F. 4th 254, reversed and remanded.

Sotomayor, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Barrett, J., joined.