United States v. Bormes

Decision Date13 November 2012
Docket NumberNo. 11–192.,11–192.
Citation184 L.Ed.2d 317,133 S.Ct. 12,568 U.S. 6
Parties UNITED STATES, Petitioner v. James X. BORMES.
CourtU.S. Supreme Court

Sri Srinivasan, for Petitioner.

John G. Jacobs, Chicago, IL, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Mark B. Stern, Henry C. Whitaker, Attorneys, Department of Justice, Washington, DC, for Petitioner.

John G. Jacobs, Counsel of Record, Jacobs Kolton Chartered, Chicago, IL, Gregory A. Beck, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, for Respondent.

Justice SCALIA delivered the opinion of the Court.

The Little Tucker Act, 28 U.S.C. § 1346(a)(2), provides that "[t]he district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of ... [a]ny ... civil action or claim against the United States, not exceeding $10,000 in amount, founded ... upon ... any Act of Congress." We consider whether the Little Tucker Act waives the sovereign immunity of the United States with respect to damages actions for violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.


The Fair Credit Reporting Act has as one of its purposes to "protect consumer privacy." Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) ; see 84 Stat. 1128, 15 U.S.C. § 1681. To that end, FCRA provides, among other things, that "no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." § 1681c(g)(1) (emphasis added). The Act defines "person" as "any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity." § 1681a(b).

FCRA imposes civil liability for willful or negligent noncompliance with its requirements: "Any person who willfully fails to comply" with the Act "with respect to any consumer," "is liable to that consumer" for actual damages or damages "of not less than $100 and not more than $1,000," as well as punitive damages, attorney's fees, and costs. § 1681n(a) ; see also § 1681o (civil liability for negligent noncompliance). The Act includes a jurisdictional provision, which provides that "[a]n action to enforce any liability created under this subchapter may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction" within the earlier of "2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability" or "5 years after the date on which the violation that is the basis for such liability occurs." § 1681p.

Respondent James X. Bormes is an attorney who filed a putative class action against the United States in the United States District Court for the Northern District of Illinois seeking damages under FCRA. Bormes alleged that he paid a $350 federal-court filing fee for a client using his own credit card on Pay.gov, an Internet-based system used by federal courts and dozens of federal agencies to process online payment transactions. According to Bormes, his Pay.gov electronic receipt included the last four digits of his credit card, in addition to its expiration date, in willful violation of § 1681c(g)(1). He claimed that he and thousands of similarly situated persons were entitled to recover damages under § 1681n, and asserted jurisdiction under § 1681p, as well as under the Little Tucker Act, 28 U.S.C. § 1346(a)(2).

The District Court dismissed the suit, holding that FCRA does not contain the explicit waiver of sovereign immunity necessary to permit a damages suit against the United States. 638 F.Supp.2d 958, 962 (N.D.Ill.2009). The court did not address the Little Tucker Act as an asserted basis for jurisdiction. Respondent appealed to the Federal Circuit, which has exclusive jurisdiction "of an appeal from a final decision of a district court of the United States ... if the jurisdiction of that court was based, in whole or in part, on" the Little Tucker Act. 28 U.S.C. § 1295(a)(2). Arguing that the Little Tucker Act's jurisdictional grant did not apply to respondent's suit, the Government moved to transfer the appeal to the Seventh Circuit.

The Federal Circuit denied the transfer motion and went on to vacate the District Court's decision. Without deciding whether FCRA itself contained the requisite waiver of sovereign immunity, the court held that the Little Tucker Act provided the Government's consent to suit for violation of FCRA. The court explained that the Little Tucker Act applied because FCRA " ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ " 626 F.3d 574, 578 (2010) (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) ). This "fair interpretation" rule, the court explained, "demands a showing ‘demonstrably lower’ than the initial waiver of sovereign immunity" contained in the Little Tucker Act itself. 626 F.3d, at 578. The court reasoned that FCRA satisfied the "fair interpretation" rule because its damages provision applies to "any person" who willfully violates its requirements, 15 U.S.C. § 1681n(a), and the Act elsewhere defines "person" to include "any ... government," § 1681a(b). 626 F.3d, at 580. The Federal Circuit remanded to the District Court for further proceedings. We granted certiorari, 565 U.S. ––––, 132 S.Ct. 1088, 181 L.Ed.2d 806 (2012).


Sovereign immunity shields the United States from suit absent a consent to be sued that is " ‘unequivocally expressed .’ " United States v. Nordic Village, Inc., 503 U.S. 30, 33–34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ; some internal quotation marks omitted). The Little Tucker Act is one statute that unequivocally provides the Federal Government's consent to suit for certain money-damages claims. United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II ). Subject to exceptions not relevant here, the Little Tucker Act provides that " district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims," of a "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1346(a) (2).1 The Little Tucker Act and its companion statute, the Tucker Act, § 1491(a)(1),2 do not themselves "creat[e] substantive rights," but "are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law." United States v. Navajo Nation, 556 U.S. 287, 290, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009).

Bormes argues that whether or not FCRA itself unambiguously waives sovereign immunity, the Little Tucker Act authorizes his FCRA damages claim against the United States. The question, then, is whether a damages claim under FCRA "falls within the terms of the Tucker Act," so that "the United States has presumptively consented to suit." Mitchell II, supra, at 216, 103 S.Ct. 2961. It does not. Where, as in FCRA, a statute contains its own self-executing remedial scheme, we look only to that statute to determine whether Congress intended to subject the United States to damages liability.


The Court of Claims was established, and the Tucker Act enacted, to open a judicial avenue for certain monetary claims against the United States. Before the creation of the Court of Claims in 1855, see Act of Feb. 24, 1855 (1855 Act), ch. 122, § 1, 10 Stat. 612, it was not uncommon for statutes to impose monetary obligations on the United States without specifying a means of judicial enforcement.3 As a result, claimants routinely petitioned Congress for private bills to recover money owed by the Federal Government. See Mitchell II, supra, at 212, 103 S.Ct. 2961 (citing P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 98 (2d ed.1973)). As this individualized legislative process became increasingly burdensome for Congress, the Court of Claims was created "to relieve the pressure on Congress caused by the volume of private bills." Glidden Co. v. Zdanok, 370 U.S. 530, 552, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion). The 1855 Act authorized the Court of Claims to hear claims against the United States "founded upon any law of Congress," § 1, 10 Stat. 612, and thus allowed claimants to sue the Federal Government for monetary relief premised on other sources of law. (Specialized legislation remained necessary to authorize the payments approved by the Court of Claims until 1863, when Congress empowered the court to enter final judgments. See Act of Mar. 3, 1863 (1863 Act), ch. 92, 12 Stat. 765; Mitchell II, supra, at 212–214, 103 S.Ct. 2961 (recounting the history of the Court of Claims) ).

Enacted in 1887, the Tucker Act was the successor statute to the 1855 and 1863 Acts and replaced most of their provisions.

See Act of Mar. 3, 1887 (1887 Act), ch. 359, 24 Stat. 505; Mitchell II, supra, at 213–214, 103 S.Ct. 2961. Like the 1855 Act before it, the Tucker Act provided the Federal Government's consent to suit in the Court of Claims for claims "founded upon ... any law of Congress." 1887 Act § 1, 24 Stat. 505. Section 2 of the 1887 Act created concurrent jurisdiction in ...

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