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Justices Rule General U.S. Immunity Waiver Inapplicable to FCRA Credit Receipt Claims

Monday, November 19, 2012

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, 11/13/12).

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 receipts.

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 docket.”

Sovereign Immunity Waiver?

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 period.

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 government's liability.

Federal Government May Still Be Liable.

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 government.

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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