FDIC v. Meyer, 510 U.S. 471, 12 (1994)

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482

FDIC v. MEYER

Opinion of the Court

In Burr, for example, the claimant, who had obtained a judgment against an employee of the Federal Housing Administration (FHA), served the FHA with a writ to garnish the employee's wages. 309 U. S., at 243, 248, n. 11. Similarly, in Franchise Tax Board, the claimant directed the United States Postal Service to withhold amounts of delinquent state income taxes from the wages of four Postal Service employees. 467 U. S., at 513. And in Loeffler, the claimant, who was discharged from his employment as a rural letter carrier, sought prejudgment interest as an incident of his successful suit against the Postal Service under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. 486 U. S., at 551-552.

Because the claimant in each of these cases was seeking

to hold the agency liable just like "any other business," Franchise Tax Board, supra, at 520, it was only natural for the Court to look to the liability of private businesses for guidance. It stood to reason that the agency could not escape the liability a private enterprise would face in similar circumstances. Here, by contrast, Meyer does not seek to hold FSLIC liable just like any other business. Indeed, he seeks to impose on FSLIC a form of tort liability—tort liability arising under the Constitution—that generally does not apply to private entities. Burr, Franchise Tax Board, and Loeffler simply do not speak to the issue of sovereign immunity in the context of such a constitutional tort claim.

Moreover, nothing in these decisions suggests that the liability of a private enterprise should serve as the outer boundary of the sue-and-be-sued waiver. Rather, those cases "merely involve[d] a determination of whether or not [the particular suit or incident of suit] [came] within the scope of" the sue-and-be-sued waiver. Burr, supra, at 244. When we determined that the particular suit or incident of suit fell within the sue-and-be-sued waiver, we looked to the liability of a private enterprise as a floor below which the agency's liability could not fall. In the present case, by con-

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