Supreme Court Update: United States v. Bormes (11-192) and Order List

November 19, 2012 Supreme Court Update

Greetings, Court fans!

Today we bring you the first signed decision of the Term, and several interesting cert grants.

The decision came in United States v. Bormes (11-192), finding that the Little Tucker Act, 28 U.S.C. §1346(a)(2) does not operate to waive the sovereign immunity of the United States with respect to alleged violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. §1681 et seq. The FCRA provides, among other things, that "no person" that accepts credit cards shall print more than the last 5 digits of the card number or the expiration date of the card on the receipt, with "person" defined to include any "government or governmental subdivision or agency." Bormes, an attorney, brought a putative class action against the United States under the FCRA after he noticed that the receipt for a federal court-filing fee he made for a client on his own credit card printed the last four digits of his credit card and the expiration date. (Talk about legal eagle eyes!) Bormes brought the case in the Northern District of Illinois, asserting jurisdiction under the FCRA as well as the Little Tucker Act.

The FCRA's jurisdictional provision permits actions under the FCRA to be brought in any appropriate United States district court, without regard to the amount in controversy, within 2 years of discovery or 5 years of the alleged violation. The Little Tucker Act provides that the district courts have original jurisdiction, concurrent with the United States Court of Federal Claims, of any "civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon . . . any Act of Congress." In Bromes' case, the District Court found that the FCRA did not contain the explicit waiver of sovereign immunity necessary to permit a damages suit against the United States, and dismissed the suit without addressing the Little Tucker Act. Bormes appealed to the Federal Circuit, which has exclusive jurisdiction over appeals from district court decisions if the jurisdiction of that court "was based, in whole or in part, on" the Little Tucker Act. The Government moved to transfer the appeal to the Seventh Circuit, arguing that the Little Tucker Act did not apply. The Federal Circuit denied the transfer motion, and proceeded to vacate the District Court's decision. The Federal Circuit held that the United States had waived its sovereign immunity for this FCRA claim in the Little Tucker Act. Taking the opposite tack as the District Court, the Federal Circuit found that the Little Tucker Act sufficiently waived sovereign immunity, and did not address whether the FCRA itself contained the necessary waiver.

The Court vacated the Federal Circuit's decision, in an unanimous opinion by Justice Scalia. The Court held that the Federal Circuit should have looked to the FCRA first. In short, "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." The FCRA contains its own remedial scheme, setting out a cause of action, time-limitations, and a forum. While the Little Tucker Act waives sovereign immunity for certain "little" money-damages claims, it only applies where a law imposing monetary liability on the United States does not contain its own judicial remedies. The Court did not decide the ultimate question of whether the FCRA sufficiently waives sovereign immunity, however, saving that question for the Seventh Circuit after transfer from the Federal Circuit upon remand.

The Court has added several more cases to its docket.

The most momentous, and procedurally interesting, cert grant came in Shelby County v. Holder (12-96), regarding the continued validity of pre-clearance under the Voting Rights Act. The Court will address the question: Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution. As worded by Petitioner Shelby County, the question presented only asked whether the reauthorization of the Voting Rights Act exceeded Congress' authority "under the Fifteenth Amendment." Although the Court usually adopts the "question presented" as stated in the petitioner's brief, here the Court added the Fourteenth Amendment to its analysis, setting off speculation as to whether the change indicates that the Court is more inclined to uphold the Voting Rights Act.

American Express Co. v. Italian Colors Restaurant (12-133) asks whether "the Federal Arbitration Act permits courts, invoking the ‘federal substantive law of arbitrability,' to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim."

Maryland v. King (12-207) asks: "Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?"

And Peugh v. United States (12-62) asks: "Does a sentencing court violate the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence?"

We'll be back with more decisions and orders as they come. In the meantime, enjoy this last weekend before the holiday season officially begins!

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400