UNITED STATES v. BORMES
In October 2000, the United States Treasury Department launched Pay.gov, a billing and payment processing system that allows consumers to make online payments to government agencies by credit or debit card. Numerous government agencies use Pay.gov to process credit and debit payments. On August 9, 2008, attorney James X Bormes filed a lawsuit on behalf of one of his clients in the United States District Court for the Northern District of Illinois, paying the filing fee with a credit card via Pay.gov. The confirmation page displayed the expiration date of Bormes’ credit card.
Bormes alleged that the inclusion of his card’s expiration date violated the Fair Credit Reporting Act (“FCRA”); he brought this action on behalf of himself and a class of individual cardholders. The statute provides that no person accepting credit or debit cards for a business transaction shall print more than the last 5 digits of the card or the expiration date on any receipt provided to the cardholder after a transaction. The government filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. The district court concluded that it had jurisdiction under the FCRA, but granted the government’s motion to dismiss because the FCRA did not waive the government’s sovereign immunity. It held that Bormes’ invocation of the Little Tucker Act was moot because the court had jurisdiction under the FCRA.
On appeal, a motions panel denied the government’s motion to transfer to the United States Court of Appeals for the Seventh Circuit. It held that Bormes’ complaint invoked the district court’s jurisdiction under the Little Tucker Act; the Little Tucker Act grants jurisdiction to district courts over claims against the United States not exceeding $10,000. Afterwards, a panel of the Seventh Circuit determined that the Little Tucker Act waives sovereign immunity for the FCRA in Talley v. U.S. Department of Agriculture. The Seventh Circuit later vacated this opinion; the Talley case remains pending. Bormes appealed his case to the United States Court of Appeals for the Federal Circuit, which determined that the FCRA mandates money damages from the federal government, giving jurisdiction to the district courts through the Little Tucker Act.
Does the Little Tucker Act waive the sovereign immunity of the United States for claims of damages arising from violations of the Fair Credit Reporting Act?
Legal provision: Little Tucker Act
No. Justice Antonin Scalia, writing for a unanimous court, vacated the lower judgment and remanded. The Supreme Court held that the Little Tucker Act does not apply when the underlying law imposing monetary liability has its own specific judicial remedies, as in the FCRA. The Little Tucker Act does not create any substantive rights, and was intended to fill the gaps left in more general statutes where monetary relief might be warranted. The lower court should have used the text of the FCRA itself to decide whether sovereign immunity was waived. The Court did not decide whether the FCRA waives the government’s sovereign immunity.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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 84Stat. 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, corporation, trust, estate, cooperative, association, government 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 negligent 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 liability 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 agencies 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 entitled to recover damages under §1681n, and asserted jurisdiction 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 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 interpretation” 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 requirements, 15 U. S. C. §1681n(a), and the Act elsewhere defines “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 certiorari, 565 U. S. ___ (2012).II
Sovereign immunity shields the United States from suit absent a consent to be sued that is “ ‘unequivocally expressed.’ ” United States v. Nordic Village, Inc., 503 U. S. 30 –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 jurisdiction, 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 express 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 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 damages 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, 10Stat. 612, it was not uncommon for statutes to impose monetary obligations on the United States without specifying a means of judicial enforcement. 3 As a result, claimants routinely petitioned Congress 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 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 Congress,” §1, 10Stat. 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, 12Stat. 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, 24Stat. 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, 24Stat. 505. Section 2 of the 1887 Act created concurrent jurisdiction in the district courts for claims of up to $1,000. The Tucker Act’s jurisdictional grant, and accompanying immunity waiver, supplied the missing ingredient for an action against the United States for the breach of monetary obligations not otherwise judicially enforceable. 4B
The Tucker Act is displaced, however, when a law assertedly imposing monetary liability on the United States contains its own judicial remedies. In that event, the specific remedial scheme establishes the exclusive framework 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 supersedes 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 improper 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, 5Stat. 727. The Court rejected the supposition that “Congress, after having carefully constructed a revenue 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 “special remedy provided by the same statute is exclusive.” Ibid.
Our more recent cases have consistently held that statutory 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 Federal Claims—whereas here, no similar intent to preclude Tucker Act jurisdiction is apparent. See Brief for Respondent 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 provides 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 recognized . . . the remedy provided is generally regarded as exclusive.” 550 U. S., at 506. Section 6404(h), we concluded, “fits the bill”: it “provides a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, 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 exclusive.” 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 district 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 determine 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 pleading general Tucker Act jurisdiction—would transform the sovereign-immunity landscape.
The Federal Circuit was therefore wrong to conclude 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 specifically, 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 superimposed 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 consider 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 the United States Court of Appeals for the Seventh Circuit for further proceedings consistent with this opinion.
It is so ordered.
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 , 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).
3 For example, the Act of March 30, 1814, provided that every noncommissioned 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, 3Stat. 115, repealed in 1962 by Pub. L. 87–649, §14, 76Stat. 498. The 1814 Act clearly “command[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.
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, 24Stat. 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.
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). Reconcilable 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.
ORAL ARGUMENT OF SRI SRINIVASAN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will now hear argument in Case 11-192, United States v. Bormes.
Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court:
This Court's decisions have long established that Congress will be deemed to have waived the government's sovereign immunity only if it unequivocally expresses its intent to do so.
Justice Sonia Sotomayor: Under your view, is there any situation today where the Tucker Act would be applied to a statute?
Because if we start with the statute, which always seems to be where you're pointing us to, and we're only looking for a clear waiver of sovereign immunity, then there will never be another Tucker Act action in the future.
Sri Srinivasan: There are such statutes, Justice Sotomayor.
Justice Sonia Sotomayor: What would they look like to be able to get around our clear statement rule?
Sri Srinivasan: --Well, they would have two features consistent with this Court's decisions that have found the Tucker Act to be applicable.
One would be that the statute does not contain its own remedial mechanism, and the second would be that the substantive obligations in the statute run against the United States, and the United States alone.
And an example of that type of statute is the one that this Court found to be supported by the Tucker Act in White Mountain Apache Tribe or in Mitchell II.
Those are the kinds of statutes as to which I think the Tucker Act was meant to apply.
Justice Sonia Sotomayor: So basically -- I'm not sure why we're even addressing the issue of Tucker Act jurisdiction.
We should have really just been briefing the issue of whether the statute at issue here waives sovereign immunity--
Sri Srinivasan: Well, of course--
Justice Sonia Sotomayor: --because that becomes, to you, the operative question.
Sri Srinivasan: --It does when they're dealing with the statute like this.
And, of course, the reason that we are addressing Tucker Act immunity is because Tucker Act immunity is the basis for jurisdiction in this case according to the reasoning of the Federal circuit.
And the problem with the reasoning of the Federal circuit is it allows the litigant to readily circumvent the Court's strict test for sovereign immunity waivers by the straight forward device of adding the Tucker Act as a jurisdictional basis in the complaint.
And it's not at all clear why a plaintiff couldn't do that for any claim under any statute, including a statute as to which this Court would have already concluded that the unequivocal expression test, the standard test applied for waivers of sovereign immunity, was not satisfied.
Now, to give the Court a concrete example of this, in Lane v. Pena, the court concluded that for Rehabilitation Act claims under Section 504 of the Rehabilitation Act, there was no unequivocal expression of an intent to waive sovereign immunity by Congress for purposes of the damages claims; and, therefore, a damages claim can't be brought against the United States under Section 504.
But under the Federal circuit's approach, there is no apparent reason why a plaintiff couldn't bring a damages claim against the United States for a violation of Section 504 of the Rehabilitation Act by adding the Tucker Act to the jurisdictional bases in the complaint.
Because if the plaintiff were able to do that, notwithstanding this Court's decision in Lane v. Pena, the result would be that the plaintiff could say, the Federal circuit, you should look at the statute and ask the question whether it can be fairly interpreted to mandate the payment of money by the government.
There is no unequivocal expression of an intent to waive sovereign immunity, but that doesn't detract from the ability of the Federal circuit to conclude that the statute, nonetheless, can be fairly interpreted to mandate the payment of money.
Now, of course, if that issue were to arise, we would make the argument that the statute can't be so read.
But the possibility that a plaintiff could make that argument, notwithstanding this Court's decision in Lane v. Pena, we think reinforces the need to conclude -- to conclude that the Tucker Act can't be applied in the way that the Federal circuit sought to apply it here.
Justice Sonia Sotomayor: Could I ask you--
Justice Ruth Bader Ginsburg: Mr. Srinivasan -- I'm sorry.
Justice Sonia Sotomayor: --I was going to ask -- following up on my question--
Sri Srinivasan: Sure.
Justice Sonia Sotomayor: --many courts have held that the FLSA has an express waiver of sovereign immunity.
And many of them have recognized, if not all, a Tucker Act remedy.
Under your new approach, that holding is incorrect, I presume--
Sri Srinivasan: Well, the--
Justice Sonia Sotomayor: --because the FLSA has its own remedial scheme?
Sri Srinivasan: --I think one -- one way to look at the FLSA, if we're looking at it in the first instance, would be to conclude that the FLSA itself has a waiver of sovereign immunity.
And so you wouldn't look to the Tucker Act as the basis for the waiver of sovereign immunity, and you would look at FLSA in the way that we think you should look at FCRA -- excuse me, the Fair Credit Reporting Act, or FCRA.
Now, Your Honor is correct that there is a body of court of claims jurisprudence that doesn't necessarily view the statute in that way.
But if you apply the framework that we think is the correct one to apply, as we set forth in our brief, you might reach the same conclusion under the Fair Labor Standards Act, although under a slightly different route.
Justice Sonia Sotomayor: But then the Federal circuit has no jurisdiction over those claims, according to you, because the waiver is in the FLSA, it has its own judicial remedy.
They are not authorized, then, to go to--
Sri Srinivasan: Well, it would depend.
There is a little bit of an anomaly in the FLSA because the FLSA doesn't necessarily point to any particular court as the basis of jurisdiction.
Justice Sonia Sotomayor: --It has the same language as here, in -- you can bring your suit in any Federal or state court of competent jurisdiction.
Sri Srinivasan: Right.
"In any Federal or state court of competent jurisdiction. "
but this statute specifically allows for claims to be brought in district courts and a court of competent jurisdiction.
So one way--
Justice Sonia Sotomayor: I don't know -- I don't see the difference between--
Sri Srinivasan: --Well, I think one way to potentially see the difference -- and I'm not going to quibble with -- with what Your Honor's saying, but one way to potentially see a difference is because the FLSA only refers to courts of competent jurisdiction -- it doesn't have a free-standing provision that reversed the district courts -- it's possible to read that statute as essentially incorporating the Tucker Act as setting forth what the court of competent jurisdiction would be.
Here, 1681(p), which is set forth at 13(a) and 14(a) of the appendix to the government's brief, speaks specifically about actions being brought under FCRA in any appropriate United States District Court, and then only, it goes on to talk about, or in any other court of competent jurisdiction.
So that's a potential basis for drawing a distinction between the two.
Justice Elena Kagan: Mr. Srinivasan, what you say has a good deal to recommend it, and it's basically, you know, why should we read the Tucker Act to reverse everything that we know about sovereign immunity, but it's really hard to get that from the text of this -- the Tucker Act.
In fact -- I mean, I guess my question is: Do you have any textual argument for the result that you are asking us to reach?
Sri Srinivasan: Sure.
I do, Your Honor.
The text of the Tucker Act, it's true, if you read the text to apply to its full potential reach, then the argument would be more difficult; but, the text of the Tucker Act has never been read that way, including by this Court itself, starting with Nichols v. United States--
Justice Elena Kagan: Well, that's not really a textual argument.
That's an argument about how we've sensibly limited the reach of the Tucker Act.
But the Tucker Act does seem to include what your friend there says it includes--
Sri Srinivasan: --Well, I guess--
Justice Elena Kagan: --against any statute.
Not any statute except the ones with remedial provisions, but just any statute.
Sri Srinivasan: --Sure.
I guess you -- if you read the Tucker Act to its full textual reach, I think we would have a more difficult case.
But our argument is that when the statute refers to claims founded on any act of Congress, it was never intended to apply literally to any conceivable act of Congress.
And, in fact, this Court's own test for money mandating -- the money mandating test that applies to the Tucker Act embodies that understanding because--
Justice Antonin Scalia: I assume you are appealing to the textual principle that the specific governs the general.
Isn't that what's going on here?
Sri Srinivasan: --We're appealing--
Justice Antonin Scalia: That the Tucker Act is a more general provision, and you are saying it's -- it's overcome by a more specific provision that provides for compensation but excludes the federal government.
Sri Srinivasan: --We're certainly relying on that, Justice Scalia, when you're asking whether the Tucker Act can be used as the basis for waiving sovereign immunity for claims under the Fair Credit Reporting Act.
So when you bring the Fair Credit Reporting Act into play, yes, we're absolutely relying on the specific versus the general proposition, as this Court has relied on in any number of cases.
I guess I understood Justice Kagan's question to be talking about the Tucker Act and the Tucker Act alone, without bringing into play any other statute.
Now, I take Your Honor's point that it's hard to conceive of the Tucker Act in that kind of isolated fashion, because usually you'll be asking a question whether a claim can be brought against the United States under some other statutory regime.
And so if that statutory regime includes its own remedial mechanism, as FCRA does, it's hard to avoid resort to the specific control as a general proposition.
But the other point about construing the text of the Tucker Act alone is that the Tucker Act is a waiver of sovereign immunity.
So the canon that we construe waivers of sovereign immunity strictly comes into play when we construe the terms of the Tucker Act itself.
And I think it stands to reason that when you apply that canon, you wouldn't read the Tucker Act to encompass fully any act of Congress, because the implications for waivers of sovereign immunity would be quite substantial.
And so the Court has never construed the Tucker Act that way, and it shouldn't countenance that kind of construction now, which is effectively what the Federal Circuit's interpretation allows, because, rather than applying the strict standard under which Congress would have to be seen to have unequivocally expressed an intent to waive the Government's sovereign immunity in the terms of FCRA, it allows a plaintiff to avoid that by simply resorting to the Tucker Act in the jurisdictional basis of a complaint, and getting the real act by the Federal Circuit's own description standard that applies to the Tucker Act.
Justice Ruth Bader Ginsburg: The United States is governed by the substance of the Credit Reporting Act.
The Act applies to the Government, but your point is that there's no sanction for noncompliance, even though the United States, a Government system, is supposed to conform to the standards in the Act.
Sri Srinivasan: Well, I guess a few responses, Justice Ginsburg.
First, on the question of whether the United States is subject to the substantive obligations in FCRA, I don't know that's there's a one size fits all answer.
I think you'd have to go provision by provision and make an assessment.
And the reason I would say that is that, with respect to certain provisions at least, there are other statutes that, depending on the provision, have a specific obligation against the Government.
And I'm thinking in particular of the Debt Collection Improvements Act, the Privacy Act in certain contexts.
As so you have -- you have to ask the question whether, with respect to the particular FCRA provision that's alleged to run against the United States, would the better basis for finding the United States' obligations be some other statute that speaks more specifically to the question.
So I'm resisting the notion that FCRA's references to person in all of its substantive obligations would necessarily encompass the Government.
Now, there's at least one provision as to which we don't deny that the Government is covered, and that's 1681b(b), and that provision is set forth at pages -- at page 7a of the appendix to the Government's brief.
And with respect to the particular provision at issue in this case, the truncation provision, I guess we don't have to confront the question of whether the government is bound by that provision.
It might well be, but we don't have to confront that question, because the Government acts as if it's in compliance with that provision because it has to.
There's a series of network agreements that the Government has entered into with credit card companies that allow the Government to participate in the credit card system.
As a condition--
Justice Antonin Scalia: Excuse me.
1681b(b)(B), you said?
Where is that case?
Sri Srinivasan: --1681b(b).
If you look at--
Justice Antonin Scalia: You said 7a.
Sri Srinivasan: --Well, I'm sorry.
It starts at 4a.
And the -- 4a, permissible purposes of Government reports; the conditions for furnishing.
And then if you go to 7a -- that's also part of b(b) -- b(b)4 has an exception for national security investigations.
And it talks at b(b)(4)(A) about
"in the case of an agency or department of the United States Government which seeks to obtain and use. "
And because there's a reference to the United States Government in that provision--
Justice Antonin Scalia: Right.
Sri Srinivasan: --it stands to reason that the term “ person ” in b(b) -- which starts at 4a; excuse me -- encompass the United States Government.
I guess the short answer, Justice Ginsburg, is I don't think that there is a one size fits all answer.
But the other part of your question is, are we taking the position that even if substantive obligations run against the United States, there still wouldn't be a remedy, at least a remedy in damages against the United States?
And the answer to that is yes.
But that's not at all atypical under this Court's sovereign immunity jurisprudence, and it's not at all atypical for Congress to have fashioned a scheme that runs in that way.
And the Privacy Act at least is one example, where in the Privacy Act, which applies to the Government and the Government alone, there are certain obligations that the Government has to comply with in that statute.
But Congress is very careful to cabin the circumstances in which the Government would be subject to liability and money damages.
Justice Antonin Scalia: Still in all, your argument is -- is not just a straightforward specific governs the general argument.
I mean, that be would the case if the other statute which the plaintiff is trying to run around through the Tucker Act specifically -- it clearly prohibits suit against the Government.
Then you would say, you know, the specific governs the general even though the govern -- the Tucker Act permits it; the statute prohibits it.
But you're saying this other statute here does not really prohibit it.
You're just saying this other statute does not permit it under our usual rules about waiver of sovereign immunity being strictly construed.
So, you know, it's a -- it's a -- it's a difference -- it's an odd sort of a specific governs the general argument.
Sri Srinivasan: I think, with respect, Justice Scalia, I think that's a distinction that ultimately doesn't make a difference in the context of this case.
In the prior cases in which this Court has applied the specific over the general canon in related contexts, it's true that the statutes in some situations contemplated liability against the United States, but it had -- that statute would have certain limitations.
And I'm thinking, for example, of Hinck, of Erika, of Brown v. General Services Administration, cases like that, and Sheehan.
And what the Court said was, where a statute provides for liability against the United States, but in certain situations, you don't look to a different statute, the Tucker Act, to circumvent those kinds of limitations.
Justice Antonin Scalia: No, but that's -- that's because the negative implication of that statute is -- affirms that there is no liability of the United States.
But here, you don't have -- you don't have that negative implication at all, do you?
Sri Srinivasan: Well, I guess -- I don't think we need to have that negative implication to that full extent in order to invoke the specific versus the general canon, because the question at the end of the day is what did Congress intend?
And where Congress enacts a specific remedial scheme that sets out the extent to which liability will be imposed under, in this case, the Fair Credit Reporting Act, it stands to reason that Congress would have expected courts to look to the remedial scheme that it established to determine to metes and bounds of liability, not to some other general default provision.
Justice Elena Kagan: Mr. Srinivasan--
Sri Srinivasan: And therefore in that sense, the specific remedial scheme that's in the statute should control over some other general scheme that Congress might well not have had in mind at all when it set forward the terms under which claims can be brought under FCRA.
Justice Elena Kagan: --How specific does the other statute have to be?
Suppose there were another statute that just said any party can bring suits to enforce any rights against any persons under this statute.
Would you be making the same argument?
Sri Srinivasan: If the statute were that general?
Justice Elena Kagan: Yes.
If that's all the statute says.
It just says any party can bring suit to enforce rights under this statute.
So there is nor a lot of hoopla and a lot of detail about a remedial scheme.
Would you still say that this controls over the Tucker Act?
Sri Srinivasan: I think I would, because I think in that context, Congress would have made a determination on the scope of liability for claims under that statute.
It would have given thought to that issue, and it would have set forth in a very general provision the metes and bounds of the liability.
And Congress I think in that instance wouldn't have expected anyone to look to the Tucker Act, because Congress gave no indication that it was thinking about the Tucker Act.
Now, in Your Honor's hypothetical, if you had a statute that spoke in those kinds of general terms, of course, we'd have I think a very good argument that there would have been no contemplation of a waiver of sovereign immunity.
So we would strongly resist the notion that the United States might fall within the compass of that general provision.
But on the question of whether you'd look to that general provision as opposed to the Tucker Act, I think you would look to that general provision, because Congress in the context of enacting that statute told everybody: We're defining the extent to which liability can be asserted in court by reference to this general provision; this is where you ought to look, not somewhere else.
Now, one other--
Justice Antonin Scalia: Isn't it really -- doesn't the question come down to as you're putting it whether -- whether the Tucker Act eliminates for all other statutes the presumption against liability on the part of the United States?
Sri Srinivasan: --It does.
I think it does.
And I think that's quite a breathtaking proposition, and not one that Congress would have intended by virtue of the Tucker Act--
Chief Justice John G. Roberts: Well, then it's really the specific governing the general, but the other way around, right?
The Tucker Act discusses specifically the liability and the sovereign immunity of the United States, and if the statute just generally doesn't address it then the Tucker Act is the specific one and the other statute is the general one.
Sri Srinivasan: --Well, it would be hard to square that understanding with the way -- with the series of this Court's cases that apply the specific versus general canon, because I think the same argument could have been made in Brown v. General Services Administration, in Erika, in Hinck, that if you thought that the subject--
Chief Justice John G. Roberts: You'd win under this argument, too, right?
Sri Srinivasan: --I'm sorry?
Chief Justice John G. Roberts: You win under this argument, too.
It just seems to me that it's not quite right to say that FCRA -- FCRA does not specifically address the liability of the United States.
Sri Srinivasan: Right.
Chief Justice John G. Roberts: The Tucker Act does.
So the Tucker Act is the one that's specific, and it applies instead of the general language in the -- in FCRA.
Sri Srinivasan: It -- well, you can look at it that way, Mr. Chief Justice, but I guess my only response--
Justice Antonin Scalia: In which case you would lose, not win.
Sri Srinivasan: --Well, that's the question because it depends on--
Justice Antonin Scalia: Yes -- we have known existed.
Sri Srinivasan: --it depends on how you construe the Tucker Act.
I mean, I think Your Honor is correctly construing the Tucker Act's waiver of sovereign immunity only to apply to a certain limited subset of acts of Congress.
And if you construed it in a sufficiently limited way, I suppose we could live with that result.
But I think the better way to approach the question is to look at the particular remedial scheme that Congress enacted in the scope of the statute itself.
And for purposes of questions of sovereign immunity, you'd look to that particular remedial scheme and ask the age-old question, countenanced by this Court's decisions, of whether there is an unequivocal expression of an intent to waive sovereign immunity in the scope of that statute itself.
Justice Antonin Scalia: So what is covered by the Tucker Act?
I mean, every -- every basis for suit against the government, every claim that the government owes you money rests upon some statutory text, doesn't it?
Sri Srinivasan: There -- well--
Justice Antonin Scalia: So what--
Sri Srinivasan: --not claims in contract, for example.
Obviously, if there is an expressed contract with the United States, I don't know that that comes under a statute, necessarily, but--
Justice Antonin Scalia: --Okay.
Express contracts with the United States.
Sri Srinivasan: --The just compensation clause.
That doesn't come under a statute, it comes under the Constitution, but the Tucker Act can be used.
Justice Antonin Scalia: Okay.
But anything that comes under a statute, you would look to the other statute to see whether there is sovereign immunity under that statute; and, if there is under that statute, then the Tucker Act does not overcome it.
Sri Srinivasan: If that statute -- at least if that statute has its own remedial scheme, then you'd look to the remedial scheme in that statute.
But I think this is where I started off with Justice Sotomayor.
Justice Sonia Sotomayor: --That's exactly what I started with.
That's what I started with: Is there anything left to the Tucker Act?
Sri Srinivasan: Right.
And I think there is.
I think the -- statutes like the one that this Court had before it in White Mountain Apache Tribe are one.
Another example that I could give the Court is there is a statute that dealt with payment of compensation to prisoners of war.
This was the statute that was at issue in Bell v. The United States.
I think it's cited in footnote 42 of the Court's opinion in Bowen v. Massachusetts.
But that statute specifically set forth that compensation would be owed to prisoners of war held in captivity.
That statute did not have its own remedial scheme.
Its substantive obligation ran against the United States, and the United States alone, by nature.
And the Tucker Act, I think, in that context would step in to supply a waiver of sovereign immunity and jurisdiction in the Court of Federal Claims.
And the reason is that that statute has the two predicate conditions that we think have to be met in order to even raise the question whether the Tucker Act steps in.
Justice Sonia Sotomayor: So the new rule is if a statute is written to impose obligations only on the government, then the Tucker Act is implicated immediately.
If the rule says the government and any party who contracts with it -- a Medicaid provider -- must do X, Y, and Z, and the government and the Medicaid provider have the burdens of accomplishing Y, unless there is an express waiver of sovereign immunity, the Tucker Act doesn't come into play.
Sri Srinivasan: I think that's--
Justice Sonia Sotomayor: That's your position.
Sri Srinivasan: --I think that's right, Your Honor, but I'd qualify it in one respect, which is that if the statute contains its own remedial scheme, that's an independent reason for not looking at the Tucker Act.
Justice Sonia Sotomayor: Well, you are not going to suggest that if the scheme I just described says X, Y, and Z, have to do all these things, and someone to whom they owe that obligation can sue the Medicaid provider, for example, for breach of that obligation, presumably -- I'm putting in a lot of hypotheticals given our case law -- but you're saying they can't sue the government under the Tucker Act--
Sri Srinivasan: Right.
Justice Sonia Sotomayor: --unless there is an express waiver.
Sri Srinivasan: That's right.
I think you would look to the question of whether there has been a sufficiently expressed waiver in the terms of the statute itself, which is the traditional test that this Court has applied.
Justice Elena Kagan: How about if a statute has no remedial provision at all; it just lists a set of legal obligations, but it is a generally applicable statute, it doesn't concern only the United States?
Would your argument still apply that the Tucker Act has no force?
Sri Srinivasan: Yes, it would.
I think it's easier where you have a remedial scheme, obviously, but I think it's also the case that where the substantive obligation is a generally applicable one and doesn't run against the United States alone, you'd still, I think, want to--
Justice Elena Kagan: So then your argument really isn't about another statute having a remedial scheme.
In the briefs, you present it as another statute has a remedial scheme, of course you should look to that more particular remedial scheme.
But you would take the argument and say, even if the other statute doesn't have a remedial scheme, we don't look to the Tucker Act; we just think of the Tucker Act as having a limitation that is not in the Tucker Act's test -- text in order to make the Tucker Act consistent with everything we thought we knew about principles of sovereign immunity?
Sri Srinivasan: --That's true.
I mean, but I guess -- you don't have to reach the question of whether the Tucker Act applies or the statute doesn't have its own remedial scheme, obviously, in this case, because FCRA does have its own remedial scheme.
Our argument would still apply.
And on the question of whether we're reading the Tucker Act in one particular way to a subsets of acts of Congress, I guess one point I'd make is that the money mandating test that this Court has always applied where the Tucker Act does apply already presupposes that it doesn't apply to just any act of Congress, because the act of Congress has to be a money-mandating one.
Justice Antonin Scalia: Say it again.
I lost it.
Give me the last sentence again.
Sri Srinivasan: The last sentence, the last thought at least -- maybe I should try to rephrase it, but the last thought is that this Court's jurisprudence already presupposes that the Tucker Act doesn't apply to every act of Congress because the Court's jurisprudence requires that the act of Congress be money mandated.
So we are already in a zone in which the Tucker Act's reference to acts of Congress doesn't literally extend to every conceivable act of Congress.
It only extends to certain acts of Congress.
Justice Anthony Kennedy: But is this a money-mandated statute?
Sri Srinivasan: --If you didn't have -- that's -- that's -- I guess -- if you didn't have the remedial scheme.
We don't get to that question, Justice Kennedy, because you only get to the money-mandating question if there is not the remedial scheme in the text of the statute itself and the substantive obligation runs against the United States, and the United States alone, which this one doesn't because it's generally applicable.
And it's hard to conceive of that question in the abstract because the question is whether the statute is money mandating in that it specifically contemplates the payment of money by the United States; and, precisely because the statute is generally applicable, I think we would say that under this statute it's not money mandating, because it's not money mandating in that it doesn't contemplate payment by the United States with relevant specificity because the substantive obligation is generally applicable.
You only get to that question in a context like White Mountain Apache Tribe or Mitchell II, where the substantive obligation runs against the United States, and the United States alone, and where there is no remedial scheme embedded within the statute itself.
And then you ask the question whether is that kind of substantive obligation that runs against the United States, is that one that's naturally conceived as a money mandating.
And on that, I think you would look at a couple of considerations consistent with this Court's decisions.
One is, is the obligation one that necessarily deals with compensation?
So, for example, the statute I was referring to earlier that has to do with compensation for imprisoned prisoners of war, that one naturally has to do with compensation, so it might be money mandating.
In White Mountain Apache Tribe and the other trust cases that arise under the Indian Tucker Act, the Court concluded that because background principles of trust law would necessarily contemplate the payment of money, that those statutes are money mandating.
But the principal point here--
Justice Sonia Sotomayor: Counsel, this sort of begs the question--
Sri Srinivasan: --is you only get to that question if you get past that hurdle.
Justice Sonia Sotomayor: --the statute awards damages for breach of the obligation, so it's money mandating.
The issue is not whether it's money mandating; the question is who is it mandating.
Sri Srinivasan: Well, right, but--
Justice Sonia Sotomayor: But there is not an issue of whether it contemplates the payment of damages.
It expressly awards--
Sri Srinivasan: --But I think the money-mandating test, Justice Sotomayor, is whether it contemplates the payment of damages by the United States.
And I guess that's why I'm having a hard time addressing that question in the abstract, because there is a predicate condition that hasn't been satisfied.
That question only naturally arises where the substantive obligation runs against the United States and the United States alone.
I think precisely for the reason that Your Honor says, where the substantive obligation is generally applicable in that it applies to parties beyond the United States, it's hard to ask the question whether the statute is money mandating in the relevant sense.
Justice Sonia Sotomayor: --I -- it is -- there is some difficulty with your argument, which is, going back to my simplified hypothetical, government and Medicaid -- X providers have to do X, Y, and Z; if those persons, being defined as government and providers, doesn't do what they have to do, they have to pay these damages.
Sri Srinivasan: That -- I will grant--
Justice Sonia Sotomayor: I mean, that's pretty clear.
Sri Srinivasan: --Well, I will grant you, Justice Sotomayor, that that hypo is more difficult than this case because, although I would construe that to be generally applicable, it does talk about the government.
It specifically references the government, and I think, by Your Honor's hypothetical, the United States alone.
It's not an undifferentiated reference to persons, which is what you have in FCRA.
I still think I would call that generally applicable such that the Tucker Act wouldn't come into play, but I don't deny that it would be a closer case than what you have here.
If the Court has no further questions, I would like to reserve the balance of my time.
Chief Justice John G. Roberts: Thank you, Counsel.
ORAL ARGUMENT OF JOHN G. JACOBS ON BEHALF OF THE RESPONDENT
John G Jacobs: Mr. Chief Justice and may it please the Court:
If I may, I should like to begin with Justice Kennedy's question: Is this a money-mandating statute?
Section 1681(a) defines “ persons ” and it defines “ persons ” as, inter alia,
"any government or government body or agency. "
That, it would seem to me, would be extraordinarily clear that the Government is subject to this act and subject to money mandating.
Justice Antonin Scalia: Well, you wouldn't -- you wouldn't need the Tucker Act now, would you?
John G Jacobs: We--
Justice Antonin Scalia: Just sue under the statute.
John G Jacobs: --We could.
We believe we should be able to recover simply under FCRA itself, yes, Your Honor.
But if there were any question as to whether the Government is in fact covered, that would seem to me to be answered by 1681b(b)(4).
Justice Antonin Scalia: So are you splitting your claim?
I mean, if you have both a cause of action under FCRA and under the Tucker Act, the one has to go to the Federal Circuit and the other elsewhere, or the Court of Claims and then the Federal Circuit?
What do you do?
John G Jacobs: Your Honor, that was -- that was the subject of some debate in the court below.
We took the appeal to the Federal Circuit because the claim was based in whole or in part on the Tucker Act.
Justice Antonin Scalia: You also claimed under FCRA, under the statute, right?
John G Jacobs: Yes, we do, Your Honor.
Justice Antonin Scalia: Okay.
Justice Stephen G. Breyer: So why do you care?
I mean, you're in the Northern District of Illinois, you bring a case under this Act.
I guess you lost because you wanted to appeal.
And so -- so what is the big deal?
Appeal to the Seventh Circuit.
Why do you care which circuit you go to?
You said you think -- well, why do you care?
John G Jacobs: We don't particularly care, Your Honor, but we believe that we are required by the statute to appeal to the Federal Circuit if the claim is based in whole or in part on the Tucker Act.
Justice Stephen G. Breyer: I guess you and the Government could have stipulated, we agree it goes to the Seventh Circuit, and nobody would have opposed you on that.
John G Jacobs: I -- I -- I do not know, Your Honor.
Justice Stephen G. Breyer: This case is about you want to go to -- you want to go the Federal Circuit, they want you to go to the Seventh Circuit?
John G Jacobs: Right.
Justice Stephen G. Breyer: Okay.
John G Jacobs: And in 1681b(b)(4), the statute said--
Chief Justice John G. Roberts: I'm sorry.
Before you get--
John G Jacobs: --Yes.
Chief Justice John G. Roberts: --But if you -- their argument is if you go to the Seventh Circuit, you don't get any money, right?
Because if you're getting money from the United States, don't you have to go to the Court of Claims in a case like this?
John G Jacobs: I don't believe so, Your Honor.
Chief Justice John G. Roberts: No?
John G Jacobs: I mean, 1681p says you can sue either in district court or any other court of competent jurisdiction.
And in that regard, there's been a lot of talk about the remedial scheme, and with respect, Your Honor, I would submit that this is -- this is not some reticulated, remedial scheme where you have to file a claim and have a hearing and those kinds of things where this Court has enforced that against people.
Here, it's just a typical statute that says you have to do A, B, and C, and if you don't you can be sued in Federal court.
Justice Antonin Scalia: Do you know any other statutes offhand -- I can't think of any, but maybe you know some -- in which you can get money out of the United States but don't have to go through the Court of Federal Claims and the Federal circuit?
What other statutes are there?
And if there are none, the reason I ask the question, it becomes less and less plausible that FCRA was meant to allow suit against the Federal Government.
John G Jacobs: The Privacy Act, Your Honor, allows you to sue the government in the district court.
Justice Antonin Scalia: For money damages.
John G Jacobs: I believe so, Your Honor.
Justice Stephen G. Breyer: Not in tort.
This seems an awful lot like a tort, or tell me why it isn't.
I mean, what you are saying is there's a statute that says you can't print more than the last five digits of a card or the date, the expiration date, and they did both and you want to say “ or ” means one or the other, it doesn't mean and/or.
That's what the case is about fundamentally, right?
John G Jacobs: The case is about printing the expiration date, Your Honor.
Justice Stephen G. Breyer: Yeah, can you do and/or or or.
All right, got it.
Now, if you print -- in your view of it, they printed too much about a person's credit card.
John G Jacobs: Yes.
Justice Stephen G. Breyer: It sounds like an -- sort of like an invasion of privacy, which is normally a tort.
John G Jacobs: It is like it, but I believe this Court's jurisprudence has been for a long while now, at least since Jacobs and I would submit even earlier, Dooley onward, that it doesn't make any difference whether -- if you're suing under a statute of the United States or a contract or anything else, if there's any element of tort in it, it doesn't matter.
Justice Stephen G. Breyer: What do you mean?
You can sue for -- in other words, if the statute were to say, if Smith, a government employee, assaults a person, he gets damages.
Now he brings a claim -- I don't know this law; I'm asking, I'm not arguing.
The plaintiff sues the United States for assault.
And you're saying that they can bring that in the Court of Claims because it's a statute.
I don't know how this law works.
I just read that and I know the language doesn't totally tell you.
It's about liquid, illiquid.
I didn't get that part exactly.
But as I've understood it, you can't bring a tort suit in the Court of Claims.
Now, that's what I would like you to elaborate, because this sounds rather like a tort suit, not sort of.
That's why I am asking.
John G Jacobs: There's no doubt intended, Your Honor posed a very difficult question.
I would submit that if the statute says that you may not do A, B, and C, that you could then sue in the Court of Claims.
Justice Stephen G. Breyer: Even if it says you may not assault someone.
John G Jacobs: Yes.
Even though traditionally, you could think of that as a tort, I believe that's this Court's jurisprudence.
Justice Stephen G. Breyer: And the case I should look at to show that is what?
That's all right if you don't have it.
John G Jacobs: I think Daly -- Dooley, I think, Your Honor, in 1901 said:
"Regardless of whether the exactions of taxes were tortious or not, we think this case is within one of the first class of cases specified in the Tucker Act of claims based upon a law of Congress. "
Chief Justice John G. Roberts: But your argument -- your answer is a little more complicated, because the statute doesn't say tort claims, it says claims sounding in tort, which means cases that aren't torts, but are like torts.
And it seems to me the case you -- you -- you have here is like tort, an invasion of privacy or something like that.
John G Jacobs: Your Honor, I believe, again, that this Court has not interpreted the cases that way.
There is a debate as to whether a breach of fiduciary duty is a tort or something else, and yet this Court in White Mountain and other cases has not found that to be a bar.
Chief Justice John G. Roberts: Well, your friend says that that's a fiduciary -- that's a trust breach, which has been regarded as different than a tort.
John G Jacobs: That's what the Government says, but it is also a breach of fiduciary duty, and that is often regarded as a tort, Your Honor.
Justice Ruth Bader Ginsburg: May I ask you, Mr. Jacobs--
John G Jacobs: --I'm sorry.
Justice Ruth Bader Ginsburg: --whether you think Congress ever honed in on the issue whether the United States, given the multitude of financial transactions in which it engages, ever thought that sovereign immunity would be waived?
I mean, if you're right about this, the consequences are enormous for the Federal fisc.
And we -- the statute developed in a peculiar way.
First, there was the definition of person when there was no civil liability, and then some years later the prohibition of having both the credit card number and the expiration date.
In all of it, is there any hint that Congress envisioned a waiver of sovereign immunity in the Fair Credit Reporting Act?
John G Jacobs: Your Honor, I would submit yes, there is no explicit -- to my knowledge, there is no explicit knowledge in the Congressional Record to whether this was going to impact the government or not.
However, what they talked about was the almost epidemic proportion of identity theft going on, and in response to that this bill was passed.
Knowing that the Government is one of the largest issuers of credit card receipts, one would have to wonder why they would want to exclude the Government in terms of protecting the public.
That would not make sense.
It doesn't make any difference where the credit--
Justice Antonin Scalia: For the same reason that you have the principle of sovereign immunity.
They're -- they are perfectly willing to subject corporations to immense liability, but they are not willing to subject the Federal government to immense liability.
That's what the doctrine of sovereign immunity is all about, isn't it?
John G Jacobs: --That's exactly correct, Your Honor.
But that's why I said in terms of protecting the public, you wouldn't want to exclude such a large -- such a large thing.
And when they wanted to protect the government, as they did in 1681b(b)(4), when they wanted to exclude them, they explicitly did so--
Justice Elena Kagan: Mr. Jacobs--
John G Jacobs: --the next year.
Justice Elena Kagan: --the -- the import of the government's argument is that if your interpretation governed, we would be facing, really, a quite massive change in the law of sovereign immunity as we've known it until this time.
So I will give you an -- Congress decides to pass a statute, and the statute has a cause of action in it.
And the drafters say to each other, do we have to say that the government retains sovereign immunity?
And everybody says, no, the rules are that if we say nothing at all, the government does retain sovereign immunity.
Now, under your world, the next time Congress passes such a statute and that question comes up, you would say, oh, we have to say that the government waives -- retains its sovereign immunity, because if we don't say that, somebody's going to bring an action under the Tucker Act.
So for every statute, both the ones that have been written under the old rules and the new ones to come, we have completely flipped the presumption.
Now, Congress is going to have to say when it wants to retain sovereign immunity, and if it doesn't -- if it doesn't, the Tucker Act applies, and you get to be in court.
John G Jacobs: With respect, Justice Kagan, I don't think that's true at all.
They went out of their way to define person to include the government.
And that's significant in this respect, Your Honor.
We cite the Moore case, Moore v. The Department of Agriculture, an almost identically worded statute, where it said, a government--
Justice Elena Kagan: I don't think that quite answers the question.
That's a -- that's a question about what FCRA means and whether under any standard, whether the fairly arguable standard or the express standard, you should win.
And that's a different question.
The question is what standard are we going to hold you to.
Are we going to say, all you need to show is that it's fairly arguable, or are we going to say, no, unless there's an express statement that the government has waived its sovereign immunity, the government retains it?
And as to that, you're asking us to flip the presumption from now on.
John G Jacobs: --I don't believe so, Your Honor.
I think they went out of their way to say this applies.
It's not some general statute that says if a credit card is printed improperly.
Justice Ruth Bader Ginsburg: When the definition of persons was put into the statute, there was no civil liability; isn't that right?
So they didn't -- they could not have been thinking about civil liability.
John G Jacobs: Well, when they amended FCRA in 1996 to add the -- to change the word from credit reporting agency to person, I would submit that had to be a conscious step.
And proof of that is found, I think, in two subsequent amendments.
One, the next year, 1681b(b)(4), saying, but this does not apply to the government if there is a national security issue.
And then the Government pointed to 1681u(i), that talked about if the FBI improperly disclosed information, what liability it would have.
Now, in the appendix to the government's brief, it stops there.
But in the government's petition for cert at page 78a, it also has 1681u(l) which says any other provision of this section notwithstanding, people are limited to this remedy against the government.
Why would Congress say that if there were not other liability for Congress -- for the United States.
So, I believe the -- Congress was about as clear as it could be that it knew this applied to the United States, and when it wanted to carve something out, it did so, twice.
Justice Antonin Scalia: I -- I really have -- I haven't followed this argument.
You say (l)--
John G Jacobs: --(l).
Justice Antonin Scalia: --shows that they had liability by the government in mind?
John G Jacobs: Yes, Your Honor.
I believe that--
Justice Antonin Scalia: I mean, why anybody -- notwithstanding any other provision, the remedies and sanctions set forth in this section shall be the only judicial remedies and sanctions for violation of this section.
John G Jacobs: --I believe, Your Honor, that--
Justice Antonin Scalia: Why does that bear upon whether the United States is liable or not?
John G Jacobs: --This u only applies to United States, the FBI.
1681u is explicitly passed with regard to the FBI getting information and improperly disclosing it.
Justice Antonin Scalia: I see.
John G Jacobs: And this would say, notwithstanding any other provisions, and it wouldn't do that if there weren't other provisions applicable.
And that, Your Honor, takes me back to the Moore case, which we discussed many times in our brief, a similarly, almost identical statute, the Equal Credit Opportunity Act.
The Truth in Lending Act, the equal opportunity -- the Equal Credit Opportunity Act and FCRA were all part of the Consumer Credit Protection Act, different parts of it.
And the Equal Credit Opportunity Act had the same, almost the same definition with one word difference of importance.
And then the -- the Fifth Circuit said, there is no exception in here, once it says that, for any person -- it doesn't have an exception for the United States, unlike the Truth in Lending Act which had a specific provision exempting the United States.
This is identical except for one word different.
This says any, the most emphatic word it could use.
The other two statutes say, a government or government entity.
This statute says, any government or government entity.
And the United States makes no response to that interpretation that is throughout our judicial system.
And, indeed, it would be difficult to because throughout the United States now, the -- the United States no longer even attempts to argue that ECOA does not provide for waiver of sovereign immunity.
Justice Antonin Scalia: Well, if you are right about that, I guess we could write a very narrow opinion saying the Tucker Act applies where there is a cause of action under the original statute anyway, in which case we would not have made much new law, would we?
John G Jacobs: Well, I'm hoping we won't make much new law, Your Honor--
Justice Antonin Scalia: Yes.
John G Jacobs: --because I believe this is consistent with this Court's longstanding jurisprudence.
And, indeed, the -- the cases where the Court says, no, we're not going to let you bring this under the Tucker Act, is where the party is trying to escape, to get around a limitation in the substantive act, where they're trying to avoid a statute of limitations, avoid the requirement to file a -- a claim, as in Elkhorn Mining, as -- to get around -- get away from a court as in Hinck, where it says the tax court will have jurisdiction of this.
And then they are trying to get around--
That's not going on here.
We're -- the Plaintiff in this case is not trying to evade any Congressional intent or statutory provision of FCRA.
And the government points to nothing -- no violence that would be done to the FCRA by allowing this.
The -- the reason that this statute was passed was to protect consumers.
The Congress was clear that if any government violates the statute, it has this liability.
I do not know how you could have a clearer money-mandating statute.
And, Justice Scalia, you asked, well, would we just win under the -- under the statute?
My answer to that would be unequivocally yes, we should.
It's an unequivocal waiver.
And that's the irony here.
I think you have a -- a more unequivocal waiver in this statute than you do almost any other where the Court has found that yeah, that's a fair inference of a money-mandating situation.
Justice Stephen G. Breyer: Well, I mean, the -- a lot of these provisions are technical, like the one I think is fairly technical, the one you are talking about, the government -- it provides for treble damages -- treble damages, does it?
John G Jacobs: No.
Justice Stephen G. Breyer: Minimum damage, punitive damages, a fairly lengthy statute of limitations compared to the court of claims.
John G Jacobs: 2 years.
Justice Stephen G. Breyer: 2 years.
And they have 6 in the other?
John G Jacobs: 2 years or 6 years -- 2 years from discovery, 5 years--
Justice Stephen G. Breyer: My -- my impression was there are several differences.
And normally, these things you, at least arguably, are not appropriate against the Government, because the Government when it knows the law will follow it, we hope.
And, therefore, you don't need brow-beating mechanisms to make sure they follow it once it's clarified.
So, therefore, it -- I mean, I can imagine arguments.
At the same time, there are differences between the relief scheme in this statute and the normal one you have in the Court of Claims.
And they're arguing that that means that they didn't want this Tucker Act and these other things to apply.
I just want to know what your reply is to that.
They are different.
John G Jacobs: --They -- they are different, Your Honor, but, with respect, I see nothing about saying, this is what you must do, and if you don't do, this is what you have to pay -- I see nothing unusual about saying that can be in the Court of Claims; that that's a Tucker Act claim.
That doesn't seem -- that's not some reticulated statute unlike the Civil Service Review Act or something like that, where you have to do all these steps, have this hearing first, have that hearing--
Justice Sonia Sotomayor: So are you happy with the circuit's suggestion that the specific does govern the general insofar as it will adopt whatever FCRA's limitations are?
John G Jacobs: --Yes.
Justice Sonia Sotomayor: And into its own processes?
John G Jacobs: --Yes.
Justice Sonia Sotomayor: Your position is that's perfectly okay.
John G Jacobs: Yes.
And I think that is consistent with this Court's jurisprudence.
Chief Justice John G. Roberts: Now, it does seem -- I mean, Justice Breyer's point.
It does seem a little ad hoc.
In other words, they don't fit quite together, and your answer is: Well, we'll just take whatever, you know, whatever we have to, to make it fit.
It would go under the least imposing on the Government.
It suggests that Congress did not expect the Tucker Act to apply if you've got to change the remedial provisions in FCRA to get it to fit under the Tucker Act.
John G Jacobs: Well, Your Honor, if I understand your question correctly, I -- I don't believe I agree with the premise.
This Court has consistently said, as Your Honor said, that the Tucker Act only provides an outer limit for filing, but we'll use the shorter time period.
In Ruckelshaus v. Monsanto, the Court said: No, no, no, you've got -- because Monsanto didn't want there to be a Tucker Act claim.
It wanted to be able to argue: We have no relief available to us for having to disclose the components of our insecticides.
And they wanted to argue: There is no relief available to us.
And this Court said: No, you've got a -- you've got a Tucker Act claim.
You do have relief available to you.
And the Court said: Yes, you didn't file a claim.
There is a procedure where you could file a claim saying: This is a trade secret, and the -- you then would have arbitration.
And the Court said: You haven't done that; go ahead and do that and then let's see what happens.
But you've got a Tucker Act claim.
And incidentally, in that regard, in Ruckelshaus v. Monsanto, the Court discussed extensively the Restatement of Torts as to whether a trade secret -- a listed trade secret under the Restatement of Torts, and then went ahead and said: No.
You've got a Tucker Act claim here.
Justice Stephen G. Breyer: Right.
So is -- are you also saying, FCRA, the underlying statute, clearly waives sovereign immunity, so we don't have to worry about whether the standard is a weak standard or a tough standard, doesn't matter.
We win anyway.
John G Jacobs: Absolutely.
Justice Stephen G. Breyer: So what you want us to say is, okay.
We will apply the tough standard.
There's still -- there's still -- sovereign immunity is waived in FCRA.
And since sovereign immunity is clearly waived there, then you can bring this under the Tucker Act, and the only differences are the remedial schemes are slightly different, but that doesn't matter.
Am I correctly stating what you are now telling us?
John G Jacobs: I'm telling Your Honor that we win under such a test.
We don't believe such a test is called for, but if -- if such a test were used, we still win because you do have such a clear waiver.
Justice Sonia Sotomayor: One of the purposes of the Tucker Act was to provide a remedy, where none existed, to get rid of the private bills.
What's wrong with the government's basic proposition which is where you have a remedy you have to pursue that remedy.
And I think that, at bottom, that's their argument.
What's wrong with that scheme?
Instead of permitting two remedies with potentially conflicting commands, whether it's on the amount of damages or the nature of the recovery or the statute of limitations, why isn't their vision of what the Tucker Act -- the role the Tucker Act should play one that should be given voice?
One that should be followed?
John G Jacobs: Your Honor, I would submit that that would be a substantial change in this Court's jurisprudence.
Congress passed the Tucker Act, and this court, for years now, has said,
"If you meet these requirements, you may sue under the Tucker Act. "
Justice Antonin Scalia: The Government doesn't concede that you have a cause of action under FCRA at all.
John G Jacobs: No.
Justice Antonin Scalia: They say -- they say just the opposite.
And so what I find peculiar is that there should be two causes of action for the same thing.
You can proceed either under FCRA or under the Tucker Act or both.
I mean, that's very strange to me.
It seems to me, one or the other, and it would normally be the specific governing the general.
So if you say there is one under FCRA, why do we need the Tucker Act?
John G Jacobs: Your Honor, the Tucker Act, as made available by Congress, could we proceed only under FCRA?
Yes, we could, but the Tucker Act is available, the statute 1295 says what it says, and we have appealed to the Court of Appeals.
But there is--
Justice Antonin Scalia: Do you have any other case where -- where you -- somebody's been allowed to proceed under the Tucker Act where there is clear ability to proceed under some other statute?
John G Jacobs: --Your Honor, I cannot name you a case off the top of my head.
As I said, I believe the Privacy Act allows you to do either.
The -- all--
Justice Sonia Sotomayor: The FSLA as well.
John G Jacobs: --I'm sorry?
Justice Sonia Sotomayor: The FSLA as well.
John G Jacobs: Yes.
The FSLA -- I was going to tell you, as Your Honor said earlier.
But the cases where a Tucker Act remedy has been denied, as I've said, are where a person was trying to evade a limitation of the substantive act.
That's not this case.
This case is four-square within the court's jurisprudence.
The government argues now for a new -- and it's not clear to me exactly what test, but it's a limiting one.
It would -- it would cut back the Tucker Act.
Justice Elena Kagan: But Mr. Jacobs, you are trying to evade a certain kind of limitation.
The limitation that you are trying to evade is the rule that waivers of sovereign immunity have to be expressed.
And that's the rule you are trying to evade by going under the Tucker Act.
John G Jacobs: No, Your Honor.
We believe, and we've maintained throughout, that we do have an express waiver, 1681(a)--
Justice Elena Kagan: But then you wouldn't need to go under the Tucker Act.
The difference between going under the Tucker Act and going under the statute is the difference between, you know, what -- what standard is a court going to hold you to, to decide whether there has been a waiver of sovereign immunity.
John G Jacobs: --The standard, I would submit, Your Honor, is that the Tucker Act is always available unless a -- the substantive statute provides a limitation on that ability; either saying it shall be -- shall be litigated in the Tax Court, it can only be litigated if it is preceded by a claim, an administrative claim, some limitation like that.
If -- if there's something that says it has to be in another forum, then you would be evading it.
But otherwise, the Tucker Act remedy is available and it's appropriate and it's precisely, I would submit, that what do you do--
Chief Justice John G. Roberts: You can finish your sentence.
John G Jacobs: --what do you do when you say, eh, we think this is -- you know, is this express enough?
And that's the Tucker Act saying, well, it's clearly a fair inference.
Chief Justice John G. Roberts: Thank you, Counsel.
John G Jacobs: Thank you.
Chief Justice John G. Roberts: Mr. Srinivasan, you have three minutes left.
REBUTTAL ARGUMENT OF SRI SRINIVASAN ON BEHALF OF THE RESPONDENT
Justice Antonin Scalia: Mr. Srinivasan, I hate to eat up any of your time, but do you acknowledge that there are other statutes under which a person can proceed, either under the statute or under the Tucker Act?
Sri Srinivasan: No, I'm not aware of that situation, and I think that's why you look to this remedial provision that Congress enacted to determine the metes and bounds.
Justice Antonin Scalia: What about the Privacy Act?
Sri Srinivasan: The Privacy Act has its own remedial mechanism within it typically.
Justice Antonin Scalia: So you'd say you either proceed under the Privacy Act and you're covered there, or you don't--
Sri Srinivasan: Or you don't proceed at all, yeah.
Justice Antonin Scalia: --And what about -- what is it?
FSLA was the other one?
Sri Srinivasan: Well, FLSA is a bit complicated, for the reasons I was adverting to earlier.
It's -- this Court has never confronted the question of how exactly you go forward under the FLSA.
And I think, because of the ambiguity in the courts to which the FLSA refers, for the reasons I was discussing with Justice Sotomayor earlier, I think you could see that statute as incorporating the Tucker Act itself, but that would be something that Congress did.
Justice Antonin Scalia: What about u(l), that your friend raised?
Sri Srinivasan: u(i).
I think there's several answers to u(i).
First of all, I'm not sure which way that cuts because the fact -- it may be u(l), it may be u(i), but you -- I'm not sure which way that cuts because, on one hand, the fact that Congress specifically provided for the United States to be liable in certain situations I think cuts in favor of our understanding, not against it.
But there's a more fundamental point about the argument that my friend makes on the other side, which is that that statute was enacted, I think, before the civil remedies provisions were expanded to encompass all persons.
So it's hard to conclude that that notwithstanding any other provision would have referred to something that came along later.
Now, I have two points that I'd like to make in rebuttal, one of which, there's been some questions today about which is the specific statute and which is the general statute.
Now, one, I think, clear indication that the specific statute for present purposes should be FCRA is to look at what the Plaintiffs allege.
The Plaintiffs are bringing a FCRA claim, and there's no mistake about that, because the Plaintiffs seek the FCRA advantage of statutory damages of at least $100.
And so they're grounding their claim in the FCRA cause of action.
And I think, therefore, you should look at FCRA to determine whether the government is liable.
And you don't have a situation in which you can mix and match under both; you should look to FCRA to determine whether there's been a clear and express waiver of sovereign immunity.
The other point I would like to discuss is something that -- references something Justice Breyer was adverting to earlier, which is even if there was some universe in which you could contemplate a hybridization where you apply the Tucker Act, even though there's a cause of action already in the statute, you wouldn't do so in the context of this case because there are clear indications that Congress wouldn't have contemplated a resort to the Tucker Act.
The Tucker Act doesn't apply to torts.
This claim is a tort claim.
We know this because the Court in Safeco a few terms ago -- this is at 551 U.S. 69 -- specifically referred to the Restatement of Torts as a means of interpreting the term willfulness, which is the linchpin for the claim here.
I see my time has expired.
Chief Justice John G. Roberts: Thank you, Counsel.
The case is submitted.