United States v. Bormes

Whether the Little Tucker Act (LTA), 28 U.S.C. § 1346(a)(2), waives 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.

Respondent, an attorney, paid the filing fees for a lawsuit on behalf of a client using his personal American Express credit card. The transaction was processed through the pay.gov system, used by many government agencies to process online credit-and debit-card payments. Respondent received a confirmation page on his computer screen and an e-mail confirmation, both of which contained the expiration date of his credit card. Respondent filed a putative class action alleging that the government’s electronic transaction confirmations did not comply with FCRA which prohibits a “person” that “accepts credit cards or debit cards for the transaction of business” 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. Respondent claimed that the government had willfully violated FCRA, and as a result the class was entitled to recovery of damages.

The district court dismissed the suit, explaining that sovereign immunity protects the US from suit except where Congress has unequivocally expressed a waiver of that immunity. Respondent appealed to the Federal Circuit asserting that the Federal Circuit has exclusive jurisdiction of an appeal from a final decison of a district court if the jurisdiction of that court was based, in any part, on the LTA. The Federal Circuit vacated the district court’s decision and reinstated Respondent's FCRA claim. The Federal Circuit then went on to conclude that the Tucker Act and the LTA waive the US’s sovereign immunity with respect to suits alleging violations of FCRA, even if FCRA itself does not contain the requisite waiver. The government petitioned for writ of certiorari.