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  • Writer's pictureElizabeth Slattery

Keeping up with the Court: Week of 11/06/23

This past week was all bangers, all the time. The coming week is … not so much. The justices will hear three cases before taking a break from arguments until after Thanksgiving.


In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, a loan holder sued his lender for failing to update credit reporting agencies that his loan was paid off, which had a negative effect on his credit score. The Fair Credit Reporting Act (FCRA) provides a process for challenging inaccuracies on credit reports. When a credit reporting agency receives notice of inaccuracies, it is charged with contacting the creditor, which must investigate the alleged inaccuracies, make necessary corrections, and notify all credit reporting agencies of those corrections. The FCRA authorizes suits for civil damages against creditors who fail to comply with its requirements. (Is it just me, or do you have the “Free Credit Report Dot Com” song stuck in your head?)

This case isn’t about just any lender.

Reginald Kirtz took out a loan from the U.S. Department of Agriculture (USDA)’s Rural Housing Service and he paid it off in June 2018. But in October 2018, USDA reported his payment history to credit reporting agencies as past due, despite closing his account after the loan was paid off. Kirtz wrote to TransUnion, a credit reporting agency, disputing this inaccuracy, but USDA continued to report Kirtz’s payment status as past due.

Kirtz filed suit against USDA in the U.S. District Court for the Eastern District of Pennsylvania. USDA moved to dismiss, arguing that it is immune from suit because the FCRA did not waive the federal government’s sovereign immunity. The district court agreed and granted the motion.

King George III
Did someone say sovereign?

By way of background, sovereign immunity is a fancy way of saying the government can’t be sued unless it consents. It’s derived from British common law and the legal maxim “the king can do no wrong” (rex non potest peccare for those who prefer Latin). Congress has chosen to waive the federal government’s immunity and consent to suit in a number of contexts. For example, the Federal Tort Claims Act authorizes suits against the federal government for torts committed by government employees acting within the scope of their employment.

After the district court dismissed, Kirtz appealed to the U.S. Court of Appeals for the Third Circuit, which acknowledged the circuit courts are split on this issue. The Fourth and Ninth Circuits previously held the United States may not be sued under the FCRA while the D.C. and Seventh Circuits found the FCRA’s plain language waives the government’s sovereign immunity.

The Third Circuit agreed with the D.C. and Seventh Circuits, holding that two relevant provisions of the FCRA, 15 U.S.C. §§ 1681n and 1681o, unequivocally waive the federal government’s sovereign immunity. The court explained that there are no “magic words” Congress must use to waive immunity. In the case of the FCRA, it states that any “person” who negligently or willfully fails to comply with its reporting requirements is liable for civil damages, and it defines “person” to include “any government or governmental subdivision or agency.” Thus, the court wrote, the FCRA waived sovereign immunity in clear and unambiguous terms.

Now before the Supreme Court, the Solicitor General argues on behalf of USDA that a cause of action alone is not sufficient; there must be an express waiver of sovereign immunity. She provides examples of “unmistakably clear” waivers (i.e. magic words necessary to waive immunity): the Administrative Procedure Act provides that certain suits against the United States “shall not be dismissed … on the ground that [they are brought] against the United States.”

The trademark laws include a “[w]aiver of sovereign immunity by the United States” for suits involving trademark violations. The Bankruptcy Code states that “sovereign immunity is abrogated” in almost 60 provisions. Meanwhile, Kirtz maintains that the existing case law requires a clear statement to demonstrate a waiver of sovereign immunity, and Congress provided a clear statement in §§ 1681n and 1681o of the FRCA.

USDA (unsurprisingly) has no friends in its quest to limit the ability to sue the government, but a few groups filed amicus briefs supporting Kirtz. Notably, the Constitutional Accountability Center cautioned that it is Congress’s decision to waive sovereign immunity and the Court should decline USDA’s invitation to overstep the boundaries of its authority.


Here's where things should get interesting. United States v. Rahimi is the first case the Court will hear concerning the scope of its ruling in NY State Rifle and Pistol Association v. Bruen that laws regulating firearms must pass a “text and history” test to survive review by courts.

Tears for Fears
Tiers of scrutiny, not to be confused with Tears for Fears.

To provide some background, in District of Columbia v. Heller and McDonald v. Chicago, the Court held the Second Amendment protects an individual right to self defense. For the next several years, cases percolated in the lower courts over what standard of review applied when a gun regulation was challenged in court. Was it rational basis, intermediate scrutiny, some form of heightened scrutiny, or something else outside the tiers of scrutiny framework?

Last year in Bruen, the Court provided an answer. It rejected the use of means-end scrutiny (i.e. intermediate or heightened scrutiny) and instead adopted a “text and history” test. Judges must assess whether a restriction on firearms is consistent with the text and historical understanding of the Second Amendment by identifying a historical analogue.

Bruen concerned New York’s limiting public carry to people who could demonstrate a special need for self protection that was distinguishable from the general public. The Court said this failed the “text and history” test, reasoning that while public carry has been similarly restricted in “sensitive places” like schools and government buildings, New York could not treat all of Manhattan like a “sensitive place.”

That brings us to Rahimi, which asks whether a prohibition on possession of firearms by persons subject to domestic-violence restraining orders in 18 U.S.C. 922(g)(8) violates the Second Amendment on its face.

Whataburger and fries
Warning: Burgers may induce crime.

Zackey Rahimi was involved in several shootings in Arlington, TX between December 2020 and January 2021, including shooting at another driver following a car accident, shooting into the residence of an individual to whom he sold narcotics, and shooting into the air outside a Whataburger after a friend’s credit card was declined.

Rahimi’s shooting spree led police to obtain a warrant to search his home, where they found firearms and learned Rahimi was subject to a civil protective order his ex-girlfriend sought the previous year. He was subsequently indicted by a federal grand jury for violating 18 U.S.C. § 922(g)(8), which prohibits a person subject to a protective order from possessing a firearm.

Rahimi pleaded guilty but challenged the constitutionality of the law on appeal. The U.S. Court of Appeals for the Fifth Circuit ruled against him in June 2022, just weeks before the Supreme Court announced its Bruen decision. After Bruen, the Fifth Circuit withdrew its opinion and heard arguments a second time, subsequently finding § 922(g)(8) unconstitutional given that there is no historical analogue for such a restriction.

The federal government argued § 922(g)(8) is constitutional as applied to Rahimi because Heller and Bruen both reference the Second Amendment’s applicability to “law-abiding, responsible citizens.” There has been an active debate in lower courts about this very phrase. The Fifth Circuit concluded this was simply the Supreme Court’s shorthand way of explaining that it was not displacing longstanding prohibitions on carrying firearms in sensitive places or on possession by felons or the mentally ill–disarmaments the Founders would have tolerated.

The court explained that at the time the protective order was entered, Rahimi was not a convicted felon. Thus, “Rahimi, while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees.”

Having found Rahimi’s possession fell within the protection of the Second Amendment, the court next asked whether the government could justify its regulation by showing it is consistent with our nation’s historical tradition of firearm regulation. While the government did not have to identify a “historical twin,” the court found that the analogies to surety laws and colonial restrictions on possession by Native Americans, slaves, and “disloyal” people did not suffice.

At the Supreme Court, the Solicitor General argues that § 922(g)(8) fits comfortably within the tradition of disarming individuals who are not law-abiding, responsible citizens. Since Bruen doesn’t require it to identify a historical match, the government maintains early laws disarming loyalists, minors, intoxicated individuals, felons, and the mentally ill are sufficient analogies.

Rahimi says the history cuts in his favor and that laws like § 922(g)(8) did not start appearing on the books until the 1930s in an era when Congress drastically expanded the federal government’s reach through the commerce power and the Supreme Court held in United States v. Miller that the Second Amendment protected a collective right, not an individual one (at least as it related to keeping and bearing a sawed-off shotgun).

There’s a bevy of amicus briefs supporting both sides (finally the government found some friends!). One brief filed by Anastasia’s employer, the Cato Institute, makes the case that the law at issue fails to provide due process before stripping someone of his or her fundamental constitutional right; and it’s Congress’s job–not the Court’s–to fix that. While disarming dangerous people is a laudable goal, § 922(g)(8) automatically disarms people without any finding of dangerousness. Because even victims of domestic abuse are subject to these orders, and because there are incentives for people not to challenge them, the restriction will sometimes have the effect of disarming non-violent people or people who need protection from dangerous partners.


The Court will close out the week with Rudisill v. McDonough, a case in which an Army veteran alleges the government shortchanged education benefits he earned pursuant to two GI Bills. Congress first passed a “GI Bill” in 1944 providing funds for service members to use for their education, and it has passed additional GI Bills several times since.

James Rudisill is a decorated Army veteran who had three periods of service from 2000 to 2011, including wartime deployments to Afghanistan and Iraq. He is eligible for GI Bill benefits under both the Montgomery GI Bill of 1984 and the Post-9/11 GI Bill of 2008. Both laws allow a service member to earn 36 months of benefits per period of qualifying service, capped at an aggregate 48 months for multiple periods of service.

Montgomery benefits provide a modest monthly stipend whereas Post-9/11 benefits cover the full cost of in-state tuition at public universities and a capped amount at private schools. The Post-9/11 GI Bill allowed veterans who served after September 11, 2001 to elect to receive Post-9/11 benefits in place of any remaining Montgomery benefits they had not used.

Rudisill first served in the Army from January 2000 to June 2002, earning 36 months of Montgomery benefits. He used 25 months and 14 days of Montgomery benefits between his first and second periods of service to obtain an undergraduate degree, leaving 10 months and 16 days of unused benefits.

Rudisill re-enlisted twice more, serving from June 2004 to December 2005 and November 2007 to August 2011. After Rudisill’s third enlistment, he converted his remaining Montgomery benefit to Post-9/11 benefits and sought to use additional Post-9/11 benefits he earned to pursue a graduate degree from Yale Divinity School. He planned to become an Army chaplain. The Department of Veterans Affairs (VA) informed him that since he elected to convert his remaining Montgomery benefits to Post-9/11 benefits, he was limited to the remaining 10 months and 16 days (36 months total, instead of the 48 month aggregate).

Rudisill appealed to the Board of Veterans Appeals, which agreed with the VA’s decision. He then appealed to the Court of Appeals for Veterans Claims, which reversed. Then the VA appealed to the U.S. Court of Appeals for the Federal Circuit, which held en banc that Congress authorized veterans to convert remaining Montgomery benefits to the more generous Post-9/11 benefits, limited to 36 months total.

Two judges dissented, explaining that the statute prevented concurrent receipt of Montgomery and Post-9/11 benefits during the same period of service; it did not deny a veteran additional benefits (up to the 48 month cap) earned during a separate period of service.

Now before the Supreme Court, the question presented is whether a veteran who has served two separate periods of qualifying service under the Montgomery GI Bill and the Post-9/11 GI Bill is entitled to receive a total of 48 months of education benefits between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.

Rudisill argues that the only statutory limitations on the use of benefits are that he may not receive the benefits concurrently or exceed 48 months of benefits in the aggregate. He claims the Federal Circuit misread a statutory provision that allows veterans to convert Montgomery benefits into the more generous Post-9/11 benefits into one requiring veterans to exhaust Montgomery benefits first. This departs from the pro-veteran intent of the statute and penalizes veterans who have separate periods of service that are eligible for Montgomery and Post-9/11 benefits.

Bing Crosby and the gang in White Christmas
“Gee, I wish I was back in the Army.”

Representing the VA, the Solicitor General maintains that Rudisill gave up the additional Post-9/11 benefits when he elected to convert his remaining Montgomery benefits. If he wanted to avoid this limitation, he was required to exhaust his 36 months of Montgomery benefits and then seek to use the additional 12 hours of Post-9/11 benefits.

The government, once again, is the proverbial cheese standing alone. Meanwhile, there is a raft of amici supporting Rudisill, including briefs on behalf of veterans groups, several Members of Congress, and 40 states.

A brief on behalf of Sen. Tim Kaine and other members of Congress explains that the Post-9/11 GI Bill was passed in recognition of the “especially arduous” conditions of service during that time and the “skyrocketing costs of higher education.” The brief also notes that this “perverse ‘exhaust-or-forfeit’ rule defies the plain text” of the Post-9/11 GI Bill and runs counter to its purpose.

That's all for now, folks! We’ll be back with oral argument highlights and any other interesting updates from the Court.


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