You cannot sue a state under the FCRA. That is the message that a court delivered to a pro se plaintiff in Pendergrass v. Washington Metro. Area Transit Authority, 2018 WL 4938578 (D. D.C. Oct. 11, 2018).  Under the facts of Pendergrass, the Plaintiff applied for a position as a bus driver with the Washington Metropolitan Area Transit Authority (the “Metro”) and received an offer from the Metro contingent upon his satisfactory completion of a background check.  Shortly thereafter, the Metro notified the Plaintiff that he was ineligible for employment due to a prior conviction for a non-violent offense.  After Plaintiff unsuccessfully requested that the Metro reevaluate its denial of his employment, Plaintiff sued the Metro on a number of theories, including the FCRA.  The Metro moved to dismiss Plaintiff’s claims.

With respect to Plaintiff’s FCRA claim, the Metro was created pursuant to a Congressionally-authorized Interstate Compact among Maryland, Virginia, and the District of Columbia.  Thus, pursuant to precedent, the Metro retained the sovereign immunity of the governmental entities that created it.  Therefore, Plaintiff could only sue the Metro pursuant to the FCRA if either (i) the Metro waived its sovereign immunity or (ii) Congress abrogated state sovereign immunity to FCRA claims.  After finding that the Metro did not waive its sovereign immunity for FCRA claims, the Pendergrass court held that Congress has not abrogated the states’ immunity from FCRA claims.  Because the states are immune from FCRA claims, the Pendergrass court held that the Metro was also immune from those claims and dismissed Plaintiff’s FCRA claim.

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