An attorney who paid his client's filing fees online through the U.S.
government's pay.gov system cannot rely on the government's general waiver of
sovereign immunity to bring a Fair Credit Reporting Act receipt redaction claim
against the United States, a unanimous U.S. Supreme Court ruled Nov. 13 (United States v. Bormes, U.S., No. 11-192,
The attorney filed a class action complaint against the federal government
after the credit card transaction confirmation web page divulged the expiration
date of his credit card in alleged violation of FCRA's provisions at 15 U.S.C. §
1681a requiring certain credit card data be redacted on electronically produced
FCRA contains a specific remedial scheme that provides the exclusive method
for determining whether suits against the federal government are permitted, and
therefore the Little Tucker Act's general waiver of sovereign immunity at 28
U.S.C. § 1346 does not apply, Justice Antonin Scalia wrote for the court.
Whether the federal government has waived its sovereign immunity with regard
to FCRA violations can only be determined by reference to FCRA, the court said,
but the court did not answer that question. Instead, it left it to be resolved
by an appeals court on remand.
Phil Pucillo, a lecturer at Michigan State University College of Law, in East
Lansing, Mich., told BNA Nov. 13 that “plaintiffs frequently invoke the Little
Tucker Act whenever a statute doesn't provide for a remedy” and that today's
decision does not upset that process.
Gregory Sisk, a professor at the University of St. Thomas School of Law,
Minneapolis, agreed with Pucillo, telling BNA Nov. 13 that “the Bormes
decision changes nothing … with respect to the traditional Tucker Act
The federal district court hearing the case held that FCRA did not provide
the “explicit waiver” necessary to find a waiver of sovereign immunity and
declined to address the Little Tucker Act jurisdiction argument.
In a Nov. 6, 2010 opinion, the
U.S. Court of Appeals for the Federal Circuit denied the government's request to
transfer the case to the Seventh Circuit, vacated the district court's opinion,
and held that the Little Tucker Act waived sovereign immunity for FCRA
violations (9 PVLR 1653, 12/6/10).
The government sought Supreme Court review, which the Justices granted in
January (11 PVLR 162, 1/23/12).
The Supreme Court disagreed with the Federal Circuit. It said that the Little
Tucker Act is “displaced” when a statute imposing monetary obligations has its
own process for judicial remedies.
The justices said that FCRA had a “self-executing remedial scheme because it
delineated the plaintiffs that could sue, established the available damages,
identified the appropriate court, and specified a statute of limitations
Accordingly, the Little Tucker Act's general remedial scheme--including the
waiver of sovereign immunity--was supplanted by FCRA's more specific scheme, the
court said. Otherwise, permitting plaintiffs to “mix and match” liability
creating provisions with the Little Tucker Act's waiver of sovereign immunity
“would transform the sovereign-immunity landscape,” it said.
The court vacated the Federal Circuit's opinion but did not reach the issue
of whether FCRA itself waived sovereign immunity to permit claims against the
federal government. Instead, the court remanded the case with instructions to
transfer the case to the Seventh Circuit, which will determine the scope of the
Pucillo said that “that there still might be a chance to sue the federal
government” for FCRA violations, but he does not think that the Seventh Circuit
will find a waiver of sovereign immunity in the statute.
While the definition of “person” in FCRA does include a “government or
governmental subdivision or agency,” he said that those terms were “too broad.”
Notably, he said that courts typically require that a waiver of sovereign
immunity be “crystal clear,” and he did not think that the reference to
“government” in the FCRA meets that standard without specifically referring to
the “United States” or the “federal government.”
Sisk agreed. He said that “[w]hile the Supreme Court carefully refrained from
commenting on whether the FCRA itself contains a waiver of sovereign immunity,
the Court's reaffirmation that such consent must be 'equivocally expressed'
suggests that those seeking to find a right to sue the United States in the FCRA
have a steep hill to climb.”
Although the court's decision had a “direct practical significance for” for
FCRA plaintiffs, Sisk said that the “significance of the Bormes decision
[outside of FCRA] is likely to be limited” because it “simply holds that when
Congress enacts a statute with a specific judicial remedy … that particular
statute's detailed remedial scheme is the first and [last] word on the
availability and scope of a judicial remedy.”
John G. Jacobs of Jacobs Kolton Chtd., in Chicago, argued for Bormes. Sri
Srinivasan of the Department of Justice, in Washington, argued for the
By Kimberly Robinson
Full text of the Supreme Court's opinion is available at http://pub.bna.com/lw/11192supct.pdf.
Full text of the Federal Circuit's opinion is available at http://pub.bna.com/lw/091546.pdf.
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