In its first opinion of the new term, the Supreme Court said two laws cannot be combined in order to sue the federal government for monetary damages. The unanimous decision may have sunk lawyer James Bormes’ efforts to seek financial damages from the United States for failing to protect his financial information, citing both the Fair Credit Reporting Act and the Little Tucker Act.
The case originated when Illinois attorney James Bormes noticed his credit card receipt issued by the U.S. government’s pay.gov Web site printed not only the last four digits of the American Express number but also the expiration date. The FCRA prohibits the printing of anything more than the last five digits of a credit or debit card number or the expiration date on a receipt. The law also defines liable parties as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency.”
Bormes, through his attorney John Jacobs, sought a class action suit, representing anyone whose credit card receipt from the government site included their credit card expiration date. Jacobs argued that by 2003, when the FCRA was passed by Congress, identity theft had become an “epidemic,” and, therefore, when prohibiting certain information from receipts, it would have obviously included the government.
Lawyers representing the U.S. government, however, argued the United States is immune from monetary law suits regarding violations of the FCRA. An Illinois federal court judge agreed, but a federal appeals court judge sided with the plaintiff in November 2010, citing the Tucker Act, another law which allows monetary claims against the government.
Sri Srinivansan, deputy solicitor general who argued the case for the federal government, stated the appeals court ruling was incorrect, “and that the FCRA does not reflect an ‘unequivocal expression’ of a government willingness to be sued,” according to Reuters. He also told the justices the options available to consumers under the FCRA should predominate over “the more general scheme” of restitution under the Tucker Act.
Justices agreed with Srinivanson. Justice Antonin Scalia wrote in the court’s opinion the plaintiff cannot “mix and match FCRA’s provisions with the Little Tucker Act’s immunity waiver to create an action against the United States.”
Scalia explained the court was not making a decision on whether or not the government can be sued under the FCRA, “but whether or not FCRA contains the necessary waiver of immunity, any attempt to append a Tucker Act remedy to the statute’s existing remedial scheme interferes with its intended scope of liability.”
The case now goes back to the 7th US Circuit Court of Appeals in Chicago, where judges will determine if the FCRA by itself waives federal immunity from damages through legal action.
