Bormes v. U.S., 2009-1546 (Fed. Cir. November 16, 2010), isn’t the type of suit you see every day:
On August 9, 2008, Bormes, an attorney, filed a law-suit on behalf of one of his clients in the U.S. District Court for the Northern District of Illinois using its online document filing system. Bormes paid the filing fee using his credit card, and the transaction was processed through the government’s pay.gov system. The govern-ment then provided Bormes with a confirmation webpage that appeared on Bormes’ computer screen. The confir-mation page contained the expiration date of Bormes’ credit card.
That’s a problem. 15 U.S.C. § 1681c(g)(1), part of the Fair Credit Reporting Act, provides:
Except as otherwise provided in this subsection, 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.
Thus, Bormes filed suit, just as he could against any other vendor which disclosed too much information on a receipt:
Alleging that the display of his and similarly situated plaintiffs’ credit card information violated section 1681c(g)(1) of FCRA, Bormes filed a class action lawsuit against the government. Bormes seeks, among other things, statutory damages, attorney’s fees, and costs.
But there’s a problem: the United States government isn’t just any other vendor. It’s the sovereign, so you have to come up with some specific basis authorization for suing it:
In his complaint, Bormes alleged jurisdiction under both 28 U.S.C. § 1346(a)(2), commonly referred to as the Little Tucker Act, and FCRA’s own jurisdictional provision, 15 U.S.C. § 1681p.
The District Court dismissed, on the ground that FCRA did not waive the federal government’s sovereign immunity, and so jurisdiction under the Little Tucker Act was moot.
Normally, claims against the United States have to be filed in the United States Court of Federal Claims, but that’s quite a lot of work for people who have modest claims. The Little Tucker Act is, in essence, small claims court for claims against the United States:
The Little Tucker Act, 28 U.S.C. § 1346, gives the district courts jurisdiction, concurrent with the Court of Federal Claims, over “any other [than tax refund] civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon any Act of Congress.” The Little Tucker Act is therefore a jurisdictional provision that also operates “to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).” United States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009).
Which brings us to the issue at hand:
Because the Little Tucker Act operates to waive sovereign immunity, the district court erred in dismissing Bormes’ case without considering whether the Little Tucker Act provided an alternative basis for jurisdiction. If the Little Tucker Act authorizes the district court to hear this case, it also provides the waiver of sovereign immunity that the trial court found lacking in the FCRA itself. See United States v. Mitchell, 463 U.S. 206, 216 (1983) (“If a claim falls within the terms of the Tucker Act, the United States has presumptively consented to suit.”).
To support jurisdiction under the Little Tucker Act, the substantive law that provides the basis for the plaintiff’s claims must be “money-mandating.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). A source of law is money-mandating if it “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (quotation omitted). This “fair interpretation” rule demands a showing “demonstrably lower” than the initial waiver of sovereign immunity: “It is enough . . . that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be ‘lightly inferred,’ . . . a fair inference will do.” Id.
And, indeed, the FCRP is about as money-mandating as it gets; the FRCP “unquestionably provides for money damages” and “expressly defines the term ‘person’ to include ‘any . . . government.'”
You don’t need anything more than that to establish the waiver of sovereign immunity and jurisdiction under the Little Tucker Act. Dismissal vacated and remanded back to the District Court.
[UPDATE: The Supreme Court has since granted certiorari on the case, which should be interesting. Based on my understanding of how many government jobs work, this could present a big problem if the United States is exposed to, for example, liability for illegal background checks.]