The Supreme Court on Tuesday issued its first opinion of the new term, saying a lawyer cannot combine two laws to sue the federal government for violating identity-theft protection laws banning the printing of credit card numbers and expiration dates on receipts.
The justices’ first such rendering of the term was unanimous, as the court turned aside lawyer James X. Bormes‘ attempt to sue the United States using a combination of the Fair Credit Reporting Act and the “Little” Tucker Act.
In an opinion written by Justice Antonin Scalia, the court said Mr. Bormes cannot “mix and match FCRA’s provisions with the Little Tucker Act’s immunity waiver to create an action against the United States.”
The federal government is the largest creditor, lender and employer in the United States, and government lawyers said in court papers that if Mr. Bormes‘ suit were allowed, the government could face “massive liability.”
The FCRA prohibits the showing of more than the last five digits of a card number or the expiration date on a credit-card or debit-card receipt, and defines a person liable under the act as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency.”
A federal judge in Illinois threw out Mr. Bormes‘ class-action lawsuit, saying that Congress did not explicitly waive the federal government’s sovereign immunity in the FCRA. But the lawsuit was revived by the U.S. Court of Appeals for the Federal Circuit, which said the Little Tucker Act supplied the necessary waiver. Government lawyers argued that the appeals court should have not looked to a second law, when the FCRA clearly did not make the government liable for damages.
Justice Scalia said the court was not making a decision on whether the government can be sued under the FCRA. “But whether or not FCRA contains the necessary waiver of immunity, any attempt to append a Tucker Act remedy to the statute’s existing remedial scheme interferes with its intended scope of liability,” Justice Scalia said.
The case now goes back to the federal appeals court.
By Andrew P. Napolitano
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