Opinion analysis: Court rebuffs Federal Circuit laxity on federal sovereign immunity
on Nov 15, 2012 at 2:31 pm
When I wrote about the argument in United States v. Bormes, I suggested it portended a “tough day” for the plain-language hawks. That message came through loud and clear in Justice Scalia’s succinct and unanimous decision on Tuesday, the first of the Term – the second year in a row Justice Scalia managed to get the first opinion of the Term.
The issue in this case was whether the United States can be held liable for money damages for a violation of the Fair Credit Reporting Act (“FCRA”). The dispute involves the federal government’s pay.gov site, which processes monetary payments to the federal government and also, it is alleged, issues receipts that display both the last four digits and the expiration date of credit cards used to make payments at the site (a practice that might facilitate identity theft and thus violates the FCRA).
Bormes (a user of the site) brought suit in a federal district court in Illinois, relying on a provision of the FCRA that creates a cause of action for damages against any “person,” and defines that term to include “any . . . government.” The district court dismissed, concluding that the language of the FCRA was not sufficiently explicit to waive the federal government’s sovereign immunity.
Surprisingly, Bormes appealed the case to the Federal Circuit, claiming that jurisdiction rested on the Little Tucker Act rather than the FCRA. The Government disagreed, arguing that the case should have gone to the Seventh Circuit. After the Federal Circuit ruled for Bormes, the Supreme Court granted review.
The most notable attribute of Justice Scalia’s opinion is its dismissive tone. First, he noted the requirement that waivers of federal sovereign immunity have to be “unequivocally expressed.” [He omitted, however, Congress’s prompt reversal by statute of the case he cited for that standard – United States v. Nordic Village, Inc.] Then he agreed that the Tucker Act and the Little Tucker Act are statutes that include such an unequivocal waiver.
After a tour of the Tucker Act’s history designed to show that its purpose was to provide a judicial remedy for cases in which the government owed money but had not provided a mechanism for suit, Justice Scalia turned to the issue before the Court. On that point, he concluded that the “additional remedy” of the Tucker Act is “foreclosed when it contradicts the limits of a precise remedial scheme.” In application here, that standard is easily met because the FCRA itself includes a remedial scheme that specifies that appropriate forum, the basis for liability, and the amount of damages. Thus, he concludes, neither the Tucker Act nor the Little Tucker Act can apply to cases under the FCRA.
Interestingly, the Court did not take the final step the parties would have expected – opining as to whether the FCRA is specific enough to waive the government’s sovereign immunity. Rather, having concluded that the case should not be in the Federal Circuit under the Little Tucker Act, the Court sent the case back to the Seventh Circuit to consider whether the FCRA is adequately unequivocal.
As the argument suggested was likely, the opinion does not even pretend to adopt a literal application of the Tucker Act. Rather, it uses the rhetorical move of starting from the premise of a baseline rule in favor of immunity. The result should not surprise anyone familiar with the Court’s jurisprudence under the Tucker Act. If there is any area in which the Court has been careful to protect the federal fisc, it is cases involving the monetary liability of the United States. Bormes might have produced an argument that satisfied ordinary principles of statutory interpretation. But what is noteworthy is the power of the sovereign immunity baseline to supersede those principles – not a single Justice disagreed with Justice Scalia’s firmly worded rejoinder to the Federal Circuit.
In “Plain English:”
After James Bormes paid a fee to the United States over the Internet, he argued that the receipt displayed too much information about his credit card. When he tried to sue the United States for damages under the Fair Credit Reporting Act (FCRA), the federal government countered that it was immune from lawsuits seeking money. A federal court in Washington agreed with Bormes, concluding that he could sue the United States for money damages under the Little Tucker Act, which allows lawsuits like the one brought by Bormes to go forward in the federal trial courts around the country. The government asked the Supreme Court to hear the case, and the Court reversed. It held that the Little Tucker Act did not apply to cases brought under the FCRA, and it sent the case to another federal court for it to decide whether the suit should still go forward under that Act.
