United States v. Bormes

When a statute contains a self-executing remedial scheme, courts are to look only to the text of the statute to determine whether Congress intended to waive the government’s sovereign immunity.

Respondent attorney used his personal credit card to pay a $350 federal court filing fee online and noticed that his electronic receipt included the last four digits of his credit card and the card’s expiration date, in violation of the Fair Credit Reporting Act (FCRA), 15 U.S.C. §1681 et seq. Respondent filed a class action suit against the United States, claiming jurisdiction per the Little Tucker Act, 28 U.S.C. §1346(a)(2) and §1681p of the FCRA.

The district court held that the FCRA did not explicitly waive the Federal Government’s sovereign immunity and dismissed respondent’s suit without addressing the Little Tucker Act.

On appeal, the Court of Appeals for the Federal Circuit did not address the FCRA, but found that the Little Tucker Act constituted consent to suit on the part of the Federal Government. Relying upon United States v. White Mountain Apache Tribe, 537 U. S. 465 (2003), the court found the Little Tucker Act applicable because the FCRA “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.”

The Supreme Court, vacated the court of appeals’ decision and held that while the Little Tucker Act “unequivocally provides the Federal Government’s consent to suit for certain money-damages claims” the act is inapplicable to a claim for damages under the FCRA. The Little Tucker Act has a ‘gap-filling role’ in that it provides a remedy when a statute indicates that monetary damages are available from the Federal Government, but neglects to describe the judicial process involved in that recovery. The FCRA contains its “own self-executing remedial scheme”, and thus the Little Tucker Act never comes into effect.

The Supreme Court remanded the case with instructions to transfer it so that the Court of Appeals for the Seventh Circuit could address the question of whether the FCRA itself waives immunity.