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Argument preview: Government fights battle against plain language in FCRA dispute

The Court will consider an archetypal problem of statutory interpretation next Tuesday when it hears oral argument in United States v. Bormes.  The issue in this case is whether the United States can be held liable for money damages for a violation of the Fair Credit Reporting Act.  The case arose when an attorney (petitioner James X. Bormes) paid a filing fee to the United States using an American Express card, through the government’s facility.  The receipt that Bormes received apparently showed the expiration date of his credit card, in direct violation of the Fair and Accurate Credit Transactions Act of 2003 (the “FACT” Act); that statute introduced several new provisions designed to limit the risks of identity theft into the Fair Credit Reporting Act (the “FCRA”).

Bormes responded by filing a putative class action against the United States in the Northern District of Illinois, seeking statutory damages, punitive damages, attorney fees, and costs (all pursuant to the FCRA).  To the surprise of nobody, the United States sought dismissal on the ground that sovereign immunity barred a FCRA suit for damages against the United States.  After the district court agreed, Bormes appealed to the Federal Circuit, taking the position that jurisdiction in the trial court rested in part on the Little Tucker Act, which authorizes suits in the regional district courts against the United States for damages of $10,000 or less; it is parallel to the Tucker Act, which grants exclusive jurisdiction to the Court of Federal Claims (in Washington) for suits seeking more than $10,000 in money damages from the United States. After the Federal Circuit ruled in Bormes’s favor, the Solicitor General filed a petition for certiorari, which the Court granted earlier this year.

At the heart of the case is what to make of the definitional provisions of the FCRA, which create a cause of action for damages against any “person,” and define that term to include “any * * * government.”  With that language, Bormes has the luxury of relying on a straightforward and literal reading of the statute: because the statute provides for damages against “any government,” it authorizes an action against the United States.  The United States, on the other hand, must rely on a series of historical, practical, and inferential reasons why the language should not be read to do what it seems to say at first reading.

To be sure, characterizing the government’s arguments as historical rather than textual is not to say that they are weak or poorly presented.  On the contrary, the brief bears every mark of close attention from OSG veteran Ed Kneedler, a Deputy Solicitor General; it masterfully displays a comprehensive conception of the congressional scheme for monetary liability of the United States, against which the decision of the Federal Circuit here seems a distant outlier.

The central point is that Congress plainly has chosen to centralize suits for damages against the United States in the Court of Federal Claims under the Tucker Act.  The two noteworthy exceptions provide for litigation in the regional district courts under the Little Tucker Act (for small-dollar claims) and under the Federal Tort Claims Act (for tort litigation).  The government rests directly on the “specific governs the general” canon.  It notes that the Court has never found the Tucker Act to extend to either a statute that contains its own remedial scheme or a statute of general application.  Rather, the government emphasizes, the Tucker Act has been applied only to constitutional violations, contract claims, and limited-purpose statutes directed at the United States itself.  Because the FCRA provides a specific remedial scheme, that scheme – rather than the Tucker Act – must govern this case.  In turn, without the Tucker Act, there is no basis for jurisdiction to impose monetary damages on the United States.

The case is well-briefed and the parties join issue directly on the questions that divide them.  The argument should provide some interesting fireworks on the Justices’ perspectives on statutory interpretation.  I note that neither party thought it prudent to mention the discussion in Justice Scalia’s recent book on Reading Law, which could have provided some support for either side, in its discussion of the meaning of “person” (Canon 44) and conflicts between the specific and the general (Canon 28).

Recommended Citation: Ronald Mann, Argument preview: Government fights battle against plain language in FCRA dispute, SCOTUSblog (Sep. 27, 2012, 12:10 PM),