Little Tucker Act Doesn't Waive Sovereign Immunity for FCRA Suit

One of the goals of the Fair Credit Reporting Act (FCRA) is protecting consumer privacy. To achieve that goal, FCRA prohibits a person that accepts credit cards or debit cards for payment from printing more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.

A boutique or restaurant or cab driver that prints your full credit card number can be fined up to $10,000 for the compromising your privacy.

The federal government, however, may be immune from such penalties. Tuesday, the Supreme Court ruled in the first opinion of the 2012 Term that the Little Tucker Act does not waive the federal government’s sovereign immunity in damages actions for FCRA violations.

In the case, U.S. v. Bormes, a Chicago attorney James Bormes paid a $350 filing fee in a federal lawsuit using his own credit card. The government's computerized "pay-gov" system sent Bormes a receipt that showed the expiration date of his credit card, SCOTUSblog reports. Expiration dates displayed in that manner aren't allowed under FCRA, so Bormes brought a class action claim against the government.

The Federal Circuit Court of Appeals held in 2010 that Bormes' case could move forward because Little Tucker waived sovereign immunity.

The Supreme Court reversed that ruling in a unanimous opinion written by Justice Antonin Scalia.

Sovereign immunity shields the government from liability absent "unequivocally expressed" consent to be sued. While the Little Tucker Act unequivocally provides the government's consent to suit for certain money-damages claims, the Act is displaced when a law assertedly imposing monetary liability on the government contains its own judicial remedies.

That was the case here.

Without resorting to the Tucker Act, FCRA enables claimants to pursue in court the monetary relief contemplated by the statute. Plaintiffs cannot, therefore, mix and match FCRA's provisions with the Little Tucker Act's immunity waiver to create an action against the United States.

Bormes' case could survive this opinion. The Court didn't actually decide whether FCRA itself waives the government's immunity to damages actions; instead, it left that question for the Seventh Circuit, where the case is being transferred on remand.

Related Resources:

• U.S. v. Bormes (Supreme Court)
• SCOTUS Sticks Judicial Nose in Government's Business Next Week (FindLaw's Supreme Court Blog)
• SCOTUS Grants Four New Cases, Rejects Princess Aspirations (FindLaw's Supreme Court Blog)