JAMES X. BORMES, Plaintiff-Appellant,
UNITED STATES OF AMERICA, Defendant-Appellee
Argued September 27, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 7409, Charles R. Norgle, Judge.
For James X. Bormes, Plaintiff - Appellant: John G. Jacobs, Attorney, Jacobs Kolton, Chicago, IL; Jeffrey Grant Brown, Attorney, Jeffrey Grant Brown, P.C., Chicago, IL.
For United States of America, Defendant - Appellee: Mark B. Stern, Attorney, Henry C. Whitaker, Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC; Thomas P. Walsh, Attorney, Office of The United States Attorney, Chicago, IL.
Before WOOD, Chief Judge, and Bauer and Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge.
In an earlier stage of this litigation, the Supreme Court held that the Little Tucker Act, 28 U.S.C. § 1346(a)(2), does not waive the sovereign immunity of the United States in a suit seeking to collect damages for an asserted violation of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § § 1681-1681x. United States v. Bormes, 133 S.Ct. 12, 184 L.Ed.2d 317 (2012). Although the case reached the Supreme Court from the Federal Circuit, the Supreme Court remanded it to us, because the suit originated in the Northern District of Illinois. (The original appeal had been routed to the Federal Circuit only because of the Tucker Act.) The Supreme Court told us to decide " whether FCRA itself waives the Federal Government's immunity to damages under § 1681n." Id. at 20.
James Bormes, an attorney, tendered the filing fee for one of his suits via pay.gov, which the federal courts use to facilitate electronic payments. The web site sent him an email receipt that included the last four digits of his credit card's number, plus the card's expiration date. Bormes, who believes that § 1681c(g)(1) allows a receipt to contain one or the other of these things, but not both, then filed this suit against the United States seeking damages.
Any " person" who willfully or negligently fails to comply with the Fair Credit Reporting Act is liable for damages. 15 U.S.C. § § 1681n(a), 1681o(a). " Person" is a defined term: " any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity." 15 U.S.C. § 1681a(b) (emphasis added). The United States is a government. One would suppose that the end of the inquiry. By authorizing monetary relief against every kind of government, the United States has waived its sovereign immunity. And so we conclude. (As far as we can tell, this is the first appellate decision on the issue.)
The United States maintains that the definition should not be given its natural meaning. As originally enacted in 1970, § 1681n authorized damages against only consumer reporting agencies and users of information. In 1996 Congress amended § 1681n to authorize damages against all " persons." According to the United States, none of the legislative history analyzing or explaining this amendment discusses the fact that this change, applied according to the terms of § 1681a(b), exposes the Treasury to monetary awards. Because Congress in 1996 did not evince knowledge of how the revised version of § 1681n interacts with § 1681a(b), the argument concludes, the FCRA does not waive sovereign immunity for damages even though the definition of " person" includes the United States.
The United States concedes that it is a " person" for the purpose of the Act's substantive requirements. It denies only that § 1681n authorizes damages. But if the United States is a " person" under § 1681a(b) for the purpose of duties, how can it not be one for the purpose of remedies? ...