United States v. Bormes

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. BORMES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 11–192. Argued October 2, 2012—Decided November 13, 2012
Respondent Bormes, an attorney, filed suit against the Federal Gov-
ernment, alleging that the electronic receipt he received when paying
his client’s federal-court filing fee on Pay.gov included the last four
digits of his credit card number and the card’s expiration date, in
willful violation of the Fair Credit Reporting Act (FCRA), 15 U.S. C.
§1681 et seq. He sought damages under §1681n and asserted juris-
diction under §1681p, as well as under the Little Tucker Act, which
grants district courts “original jurisdiction, concurrent with the Unit-
ed States Court of Federal Claims, of . . . [a]ny. . . civil action or claim
against the United States, not exceeding $10,000 in amount, founded
. . . upon . . . any Act of Congress,” 28 U.S. C. §1346(a)(2). In dis-
missing the suit, the District Court held that FCRA did not explicitly
waive the Federal Government’s sovereign immunity. Bormes ap-
pealed to the Federal Circuit, which vacated the District Court’s deci-
sion, holding that the Little Tucker Act provided the Government’s
consent to suit because the underlying statute—FCRA—could fairly
be interpreted as mandating a right of recovery in damages.
Held: The Little Tucker Act does not waive the Government’s sovereign
immunity with respect to FCRA damages actions. Pp. 4–11.
(a) The Little Tucker Act and its companion statute, the Tucker
Act, provide the Federal Government’s consent to suit for certain
money-damages claims “premised on other sources of law,” United
States v. Navajo Nation, 556 U.S. 287, 290. The general terms of the
Tucker Acts are displaced, however, when a law imposing monetary
liability has its own judicial remedies. In that event, the specific re-
medial scheme establishes the exclusive framework for determining
the scope of liability under the statute. See, e.g., Hinck v. United
States, 550 U.S. 501. Pp. 4–7.
2 UNITED STATES v. BORMES
Syllabus
(b) FCRA is such a statute. Its detailed remedial scheme sets “out
a carefully circumscribed, time-limited, plaintiff-specific” cause of ac-
tion, and “also precisely define[s] the appropriate forum,” 550 U. S.,
at 507. FCRA authorizes aggrieved consumers to hold “any person”
who “willfully” or “negligent[ly]” fails to comply with the Act’s re-
quirements liable for specified damages, 15 U.S. C. §§1681n(a),
1681o; requires enforcement claims to be brought within a specified
limitations period, §1681p; and provides that jurisdiction will lie “in
any appropriate United States district court, without regard to the
amount in controversy,” ibid. Because FCRA enables claimants to
pursue monetary relief in court without resort to the Tucker Act, only
its own text can determine whether Congress unequivocally intended
to impose the statute’s damages liability on the Federal Government.
Pp. 7–10.
626 F.3d 574, vacated and remanded.
SCALIA, J., delivered the opinion for a unanimous Court.
Cite as: 568 U. S. ____ (2012) 1
Opinion of the Court
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preliminary print of the United States Reports. Readers are requested to
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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–192
_________________
UNITED STATES, PETITIONER v. JAMES X. BORMES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[November 13, 2012]
JUSTICE SCALIA delivered the opinion of the Court.
The Little Tucker Act, 28 U.S. C. §1346(a)(2), provides
that “[t]he district courts shall have original jurisdiction,
concurrent with the United States Court of Federal
Claims, of . . . [a]ny. . . civil action or claim against the
United States, not exceeding $10,000 in amount, founded
. . . upon . . . any Act of Congress.” We consider whether
the Little Tucker Act waives the 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.
I
The Fair Credit Reporting Act has as one of its purposes
to “protect consumer privacy.” Safeco Ins. Co. of America
v. Burr, 551 U.S. 47, 52 (2007); see 84 Stat. 1128, 15
U.S. C. §1681. To that end, FCRA provides, among other
things, that “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.” §1681c(g)(1) (emphasis added).
The Act defines “person” as “any individual, partnership,
2 UNITED STATES v. BORMES
Opinion of the Court
corporation, trust, estate, cooperative, association, gov-
ernment or governmental subdivision or agency, or other
entity.” §1681a(b).
FCRA imposes civil liability for willful or negligent
noncompliance with its requirements: “Any person who
willfully fails to comply” with the Act “with respect to any
consumer,” “is liable to that consumer” for actual damages
or damages “of not less than $100 and not more than
$1,000,” as well as punitive damages, attorney’s fees, and
costs. §1681n(a); see also §1681o (civil liability for negli-
gent noncompliance). The Act includes a jurisdictional
provision, which provides that “[a]n action to enforce any
liability created under this subchapter may be brought
in any appropriate United States district court, without
regard to the amount in controversy, or in any other court
of competent jurisdiction” within the earlier of “2 years
after the date of discovery by the plaintiff of the violation
that is the basis for such liability” or “5 years after the
date on which the violation that is the basis for such liabil-
ity occurs.” §1681p.
Respondent James X. Bormes is an attorney who filed
a putative class action against the United States in the
United States District Court for the Northern District of
Illinois seeking damages under FCRA. Bormes alleged
that he paid a $350 federal-court filing fee for a client
using his own credit card on Pay.gov, an Internet-based
system used by federal courts and dozens of federal agen-
cies to process online payment transactions. According
to Bormes, his Pay.gov electronic receipt included the last
four digits of his credit card, in addition to its expiration
date, in willful violation of §1681c(g)(1). He claimed that
he and thousands of similarly situated persons were enti-
tled to recover damages under §1681n, and asserted juris-
diction under §1681p, as well as under the Little Tucker
Act, 28 U.S. C. §1346(a)(2).
The District Court dismissed the suit, holding that
Cite as: 568 U. S. ____ (2012) 3
Opinion of the Court
FCRA does not contain the explicit waiver of sovereign
immunity necessary to permit a damages suit against the
United States. 638 F. Supp. 2d 958, 962 (ND Ill. 2009).
The court did not address the Little Tucker Act as an
asserted basis for jurisdiction. Respondent appealed to
the Federal Circuit, which has exclusive jurisdiction “of an
appeal from a final decision of a district court of the
United States . . . if the jurisdiction of that court was
based, in whole or in part, on” the Little Tucker Act. 28
U.S. C. §1295(a)(2). Arguing that the Little Tucker Act’s
jurisdictional grant did not apply to respondent’s suit,
the Government moved to transfer the appeal to the
Seventh Circuit.
The Federal Circuit denied the transfer motion and
went on to vacate the District Court’s decision. Without
deciding whether FCRA itself contained the requisite
waiver of sovereign immunity, the court held that the
Little Tucker Act provided the Government’s consent to
suit for violation of FCRA. The court explained that the
Little Tucker Act applied because FCRA “ ‘can fairly be
interpreted as mandating compensation by the Federal
Government for the damage sustained.’ ” 626 F.3d 574,
578 (2010) (quoting United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472 (2003)). This “fair inter-
pretation” rule, the court explained, “demands a showing
‘demonstrably lower’ than the initial waiver of sovereign
immunity” contained in the Little Tucker Act itself. 626
F. 3d, at 578. The court reasoned that FCRA satisfied the
“fair interpretation” rule because its damages provision
applies to “any person” who willfully violates its require-
ments, 15 U.S. C. §1681n(a), and the Act elsewhere de-
fines “person” to include “any . . . government,” §1681a(b).
626 F. 3d, at 580. The Federal Circuit remanded to the
District Court for further proceedings. We granted certio-
rari, 565 U. S. ___ (2012).
4 UNITED STATES v. BORMES
Opinion of the Court
II
Sovereign immunity shields the United States from suit
absent a consent to be sued that is “ ‘unequivocally ex-
pressed.’ ” United States v. Nordic Village, Inc., 503 U.S.
30, 33–34 (1992) (quoting Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 95 (1990); some internal quotation
marks omitted). The Little Tucker Act is one statute that
unequivocally provides the Federal Government’s consent
to suit for certain money-damages claims. United States v.
Mitchell, 463 U.S. 206, 216 (1983) (Mitchell II ). Subject
to exceptions not relevant here, the Little Tucker Act
provides that “district courts shall have original jurisdic-
tion, concurrent with the United States Court of Federal
Claims,” of a “civil action or claim against the United
States, not exceeding $10,000 in amount, founded either
upon the Constitution, or any Act of Congress, or any
regulation of an executive department, or upon any ex-
press or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding
in tort.” 28 U.S. C. §1346(a)(2).1 The Little Tucker Act
and its companion statute, the Tucker Act, §1491(a)(1),2
do not themselves “creat[e] substantive rights,” but “are
simply jurisdictional provisions that operate to waive
——————
1 It is undisputed that this class action satisfied the Little Tucker
Act’s amount-in-controversy limitation. We have held that to require
only that the “claims of individual members of the clas[s] do not exceed
$10,000.” United States v. Will, 449 U.S. 200, 211, n. 10 (1980).
2 Whereas the Little Tucker Act creates jurisdiction in the district
courts concurrent with the Court of Federal Claims for covered claims
of $10,000 or less, the Tucker Act assigns jurisdiction to the Court of
Federal Claims regardless of monetary amount. As relevant here, the
scope of the two statutes is otherwise the same. The third statute in
the Tucker Act trio, the Indian Tucker Act, 28 U.S. C. §1505, “confers a
like waiver for Indian tribal claims that ‘otherwise would be cognizable
in the Court of Federal Claims if the claimant were not an Indian
tribe.’ ” United States v. White Mountain Apache Tribe, 537 U.S. 465,
472 (2003) (quoting §1505).
Cite as: 568 U. S. ____ (2012) 5
Opinion of the Court
sovereign immunity for claims premised on other sources
of law.” United States v. Navajo Nation, 556 U.S. 287,
290 (2009).
Bormes argues that whether or not FCRA itself unam-
biguously waives sovereign immunity, the Little Tucker Act
authorizes his FCRA damages claim against the United
States. The question, then, is whether a damages claim
under FCRA “falls within the terms of the Tucker Act,” so
that “the United States has presumptively consented to
suit.” Mitchell II, supra, at 216. It does not. Where, as in
FCRA, a statute contains its own self-executing remedial
scheme, we look only to that statute to determine whether
Congress intended to subject the United States to dam-
ages liability.
A
The Court of Claims was established, and the Tucker
Act enacted, to open a judicial avenue for certain mone-
tary claims against the United States. Before the creation
of the Court of Claims in 1855, see Act of Feb. 24, 1855
(1855 Act), ch. 122, §1, 10 Stat. 612, it was not uncommon
for statutes to impose monetary obligations on the United
States without specifying a means of judicial enforce-
ment.3 As a result, claimants routinely petitioned Con-
gress for private bills to recover money owed by the Federal
Government. See Mitchell II, supra, at 212 (citing P.
Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and
——————
3 For example, the Act of March 30, 1814, provided that every non-
commissioned U. S. army officer who “may be captured by the enemy,
shall be entitled to receive during his captivity . . . the same pay,
subsistence, and allowance to which he may be entitled whilst in the
actual service of the United States.” §14, 3 Stat. 115, repealed in 1962
by Pub. L. 87–649, §14, 76 Stat. 498. The 1814 Act clearly “com-
mand[ed] the payment of a specified amount of money by the United
States,” Bowen v. Massachusetts, 487 U.S. 879, 923 (1988) (SCALIA, J.,
dissenting), but did not designate a means of judicial relief in the event
the Government failed to pay.
6 UNITED STATES v. BORMES
Opinion of the Court
Wechsler’s The Federal Courts and the Federal System 98
(2d ed. 1973)). As this individualized legislative process
became increasingly burdensome for Congress, the Court
of Claims was created “to relieve the pressure on Congress
caused by the volume of private bills.” Glidden Co. v.
Zdanok, 370 U.S. 530, 552 (1962) (plurality opinion). The
1855 Act authorized the Court of Claims to hear claims
against the United States “founded upon any law of Con-
gress,” §1, 10 Stat. 612, and thus allowed claimants to
sue the Federal Government for monetary relief premised
on other sources of law. (Specialized legislation remained
necessary to authorize the payments approved by the
Court of Claims until 1863, when Congress empowered the
court to enter final judgments. See Act of Mar. 3, 1863
(1863 Act), ch. 92, 12 Stat. 765; Mitchell II, supra, at 212–
214 (recounting the history of the Court of Claims)).
Enacted in 1887, the Tucker Act was the successor
statute to the 1855 and 1863 Acts and replaced most of
their provisions. See Act of Mar. 3, 1887 (1887 Act), ch.
359, 24 Stat. 505; Mitchell II, supra, at 213–214. Like the
1855 Act before it, the Tucker Act provided the Federal
Government’s consent to suit in the Court of Claims for
claims “founded upon . . . any law of Congress.” 1887 Act
§1, 24 Stat. 505. Section 2 of the 1887 Act created concur-
rent jurisdiction in the district courts for claims of up to
$1,000. The Tucker Act’s jurisdictional grant, and accom-
panying immunity waiver, supplied the missing ingredient
for an action against the United States for the breach of
monetary obligations not otherwise judicially enforceable.4
——————
4 For purposes of this case, the current versions of the Tucker Act and
Little Tucker Act resemble the 1887 Act. Compare 28 U.S. C. §1491(a)(1)
(permitting suits “founded . . . upon . . . any Act of Congress”) with
Tucker Act §1, 24 Stat. 505 (permitting suits “founded upon . . . any law
of Congress, except for pensions”). The prior functions of the Court of
Claims are now divided between the Court of Federal Claims at the
trial level and the Federal Circuit at the appellate.
Cite as: 568 U. S. ____ (2012) 7
Opinion of the Court
B
The Tucker Act is displaced, however, when a law as-
sertedly imposing monetary liability on the United States
contains its own judicial remedies. In that event, the
specific remedial scheme establishes the exclusive frame-
work for the liability Congress created under the statute.
Because a “precisely drawn, detailed statute pre-empts
more general remedies,” Hinck v. United States, 550 U.S.
501, 506 (2007) (quoting EC Term of Years Trust v. United
States, 550 U.S. 429, 434 (2007); internal quotation marks
omitted), FCRA’s self-executing remedial scheme super-
sedes the gap-filling role of the Tucker Act.
We have long recognized that an additional remedy in
the Court of Claims is foreclosed when it contradicts the
limits of a precise remedial scheme. In Nichols v. United
States, 7 Wall. 122, 131 (1869), the issue was whether the
1855 Act authorized suit in the Court of Claims for im-
proper assessment of duties on imported liquor that had
already been paid without protest. The Court held that it
did not. The revenue laws already provided a remedy: An
aggrieved merchant could sue to recover the tax, but only
after paying the duty under protest. Act of Feb. 26, 1845,
ch. 22, 5 Stat. 727. The Court rejected the supposition
that “Congress, after having carefully constructed a reve-
nue system, with ample provisions to redress wrong,
intended to give to the taxpayer and importer a further
and different remedy.” 7 Wall., at 131. Permitting suit
under the 1855 Act, the Court concluded, would frustrate
congressional intent with respect to the specific remedial
scheme already in place. The 1855 Act was confined to a
gap-filling role. As we said in a later case, “the general
laws which govern the Court of Claims may be resorted
to for relief ” only because “[n]o special remedy has been
provided” to enforce a payment to which the claimant was
entitled. United States v. Kaufman, 96 U.S. 567, 569
(1878). Where the “liability is one created by statute,” the
8 UNITED STATES v. BORMES
Opinion of the Court
“special remedy provided by the same statute is exclusive.”
Ibid.
Our more recent cases have consistently held that statu-
tory schemes with their own remedial framework exclude
alternative relief under the general terms of the Tucker
Act. See, e.g., Hinck, supra; United States v. Fausto, 484
U.S. 439 (1988); United States v. Erika, Inc., 456 U.S.
201 (1982). Respondent contends that in each of those
cases Congress had unambiguously demonstrated its
intent to foreclose additional review by the Court of Fed-
eral Claims—whereas here, no similar intent to preclude
Tucker Act jurisdiction is apparent. See Brief for Re-
spondent 27–28. But our precedents collectively stand for
a more basic proposition: Where a specific statutory
scheme provides the accoutrements of a judicial action, the
metes and bounds of the liability Congress intended to
create can only be divined from the text of the statute
itself.5
In Hinck, for example, we held that the Tax Court pro-
vides the exclusive forum for suits under 26 U.S. C.
§6404(h), which authorizes judicial review of the Secre-
tary’s decision not to abate interest under §6404(e)(1). We
relied on “our past recognition that when Congress enacts
a specific remedy when no remedy was previously recog-
nized . . . the remedy provided is generally regarded as
——————
5 We therefore need not resolve the parties’ disagreement about
whether certain inconsistencies between the Little Tucker Act and
FCRA can be reconciled. Compare 28 U.S. C. §1346(a)(2) (no claims in
district court “exceeding $10,000 in amount”) with 15 U.S. C. §1681p
(claims may be brought in district court “without regard to the amount
in controversy”); compare 28 U.S. C. §2501 (claims must be filed in the
Court of Federal Claims within six years of accrual) with 15 U.S. C.
§1681p (claims under FCRA must be filed within the earlier of two
years after discovery or five years after the alleged violation). Recon-
cilable or not, FCRA governs. The Government also contends that the
Tucker Act does not apply because §§1681n and 1681o sound in tort.
We do not decide the merits of that alternative argument.
Cite as: 568 U. S. ____ (2012) 9
Opinion of the Court
exclusive.” 550 U. S., at 506. Section 6404(h), we con-
cluded, “fits the bill”: it “provides a forum for adjudication,
a limited class of potential plaintiffs, a statute of limita-
tions, a standard of review, and authorization for judicial
relief.” Ibid. It did not matter that Congress “fail[ed]
explicitly to define the Tax Court’s jurisdiction as exclu-
sive.” Ibid. We found it “quite plain that the terms of
§6404(h)—a ‘precisely drawn, detailed statute’ filling a
perceived hole in the law—control all requests for review
of §6404(e)(1) determinations.” Ibid.
Like §6404(h), FCRA creates a detailed remedial
scheme. Its provisions “set out a carefully circumscribed,
time-limited, plaintiff-specific” cause of action, and “also
precisely define the appropriate forum.” Id., at 507. It
authorizes aggrieved consumers to hold “any person” who
“willfully” or “negligent[ly]” fails to comply with the Act’s
requirements liable for specified damages. 15 U.S. C.
§§1681n(a), 1681o. Claims to enforce liability must be
brought within a specified limitations period, §1681p, and
jurisdiction will lie “in any appropriate United States dis-
trict court, without regard to the amount in controversy,
or in any other court of competent jurisdiction.” Ibid.
Without resort 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. Since FCRA
is a detailed remedial scheme, only its own text can de-
termine whether the damages liability Congress crafted
extends to the Federal Government. To hold otherwise—
to permit plaintiffs to remedy the absence of a waiver of
sovereign immunity in specific, detailed statutes by plead-
ing general Tucker Act jurisdiction—would transform the
sovereign-immunity landscape.
The Federal Circuit was therefore wrong to conclude
10 UNITED STATES v. BORMES
Opinion of the Court
that the Tucker Act justified applying a “less stringent”
sovereign-immunity analysis to FCRA than our cases
require. 626 F. 3d, at 582. It distorted our case law in
applying to FCRA the immunity-waiver standard we
expressed in White Mountain Apache Tribe, 537 U. S., at
472: whether the statute “ ‘can fairly be interpreted as
mandating compensation by the Federal Government for
the damage sustained.’ ” 626 F. 3d, at 578. That is the
test for determining whether a statute that imposes an
obligation but does not provide the elements of a cause of
action qualifies for suit under the Tucker Act—more spe-
cifically, whether the failure to perform an obligation
undoubtedly imposed on the Federal Government creates
a right to monetary relief. See White Mountain Apache
Tribe, supra; Mitchell II, 463 U.S. 206. That test is not
relevant when a “mandate of compensation” is contained
in a statute that provides a detailed judicial remedy
against those who are subject to its requirements. FCRA
is such a statute. By using the “fair interpretation” test to
determine whether FCRA’s civil liability provisions apply
to the United States, the Federal Circuit directed the test
to a purpose for which it was not designed and leapfrogged
the threshold concern that the Tucker Act cannot be su-
perimposed on an existing remedial scheme.
* * *
We do not decide here whether FCRA itself waives the
Federal Government’s immunity to damages actions under
§1681n. That question is for the Seventh Circuit to con-
sider once this case is transferred to it on remand. 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 judgment of the Court of Appeals is vacated, and
the case remanded with instructions to transfer the case to
Cite as: 568 U. S. ____ (2012) 11
Opinion of the Court
the United States Court of Appeals for the Seventh Circuit
for further proceedings consistent with this opinion.
It is so ordered.