WASHINGTON, D.C. - (Mealey's) The Little Tucker Act
doesn't waive the U.S. government's sovereign immunity when it comes to damages
actions filed under the Fair Credit Reporting Act (FCRA), a unanimous U.S.
Supreme Court ruled on Nov. 13 (United States of America v. James X. Bormes,
No. 11-192, U.S. Sup.).
However, the high court, in vacating and remanding a
ruling by the Federal Circuit U.S. Court of Appeals, left the matter of any
immunity contained in the FCRA up to the lower court. "Since FCRA is a
detailed remedial scheme, only its own text can determine whether the
damages liability Congress crafted extends to the Federal Government. To
hold otherwise-to permit plaintiffs to remedy the absence of a waiver of
sovereign immunity in specific, detailed statutes by pleading general Tucker
Act jurisdiction - would transform the sovereign-immunity landscape," Justice
Antonin Scalia wrote for the court.
Attorney James Bormes filed a complaint on behalf of one
of his clients in the U.S. District Court for the Northern District of Illinois
in August 2008. He paid the $350 filing fee using his American Express
credit card. The transaction was processed through the federal
government's pay.gov system, which dozens of federal agencies use to process
online credit card and debit card payment transactions. Bormes claims
that both the confirmation on his computer screen and the email confirmation
contained the expiration date of his credit card in violation of the FCRA.
Bormes then filed a putative class complaint against the
United States in the U.S. District Court for the Northern District of
Illinois. The District Court dismissed the suit, explaining that the
doctrine of sovereign immunity protects the United States from suit except when
Congress has "unequivocally expressed" a waiver of immunity. Bormes
appealed to the Federal Circuit U.S. Court of Appeals. His asserted
justification for appealing to the Federal Circuit, rather than the regional
Seventh Circuit U.S. Court of Appeals, was 28 U.S. Code Section 1295(a)(2).
The Federal Circuit denied the government's motion to
transfer. A merits panel of the Federal Circuit subsequently vacated the
District Court's decision and reinstated Bormes' FCRA claim. It opined
that even if the FCRA did not itself expressly waive the United States'
sovereign immunity, the Little Tucker Act and the general Tucker Act could
independently supply such a waiver. The United States filed a petition
for writ of certiorari on Aug. 12, 2011. The petition was granted
High Court Briefs
In its April 13 petitioner brief, the United States
argued that the Little Tucker Act plays no role in determining whether the
United States is liable for damages under the FCRA's general civil remedies
Bormes argued in his brief that the FCRA falls within the
scope of the Little Tucker Act's sovereign immunity waiver.
Vacating the Federal Circuit's decision, the court opined
that "[t]he Federal Circuit was . . . wrong to conclude that the Tucker Act
justified applying a 'less stringent' sovereign-immunity analysis to FCR than
our cases require. . . . It distorted our case law in
applying to FCRA the immunity-waiver standard we expressed in [United States
v.] White Mountain Apache Tribe, [537 U.S. 465, 472 (2003)] 537 U.S.
at 472; whether the statute '"can fairly be interpreted as mandating
compensation by the Federal Government for the damage sustained."' 626
F.3d at 578. That is the test for determining whether a statute that
imposes an obligation but does not provide the elements of a cause of action
qualifies for suit under the Tucker Act - more specifically, whether the failure
to perform an obligation undoubtedly imposed on the Federal Government creates
a right to monetary relief. See White Mountain Apache Tribe, supra;
Mitchell II [United States v. Mitchell (463 U.S. 206, 216
)], 463 U.S. 206. That test is not relevant when a 'mandate of
compensation' is contained in a statute that provides a detailed judicial
remedy against those who are subject to its requirements. FCRA is such a
statute. By using the 'fair interpretation' test to determine whether
FCRA's civil liability provisions apply to the United States, the Federal
Circuit directed the test to a purpose for which it was not designed and
leapfrogged the threshold concern that the Tucker Act cannot be superimposed on
an existing remedial scheme."
Solicitor General Donald B. Verrilli Jr. in Washington
represents the United States. Gregory A. Beck of Public Citizen
Litigation Group in Washington and John G. Jacobs of Chicago represent Bormes.
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