Supreme Court Decides United States v. Bormes

On November 13, 2012, the U.S. Supreme Court decided United States v. Bormes, No. 11-192, holding that when a federal statute provides its own judicial remedies, the Tucker Act and the Little Tucker Act do not apply and do not provide the federal government's consent to be sued.

The Little Tucker Act, 28 U.S.C. § 1346(a)(2), provides that the federal district courts have original jurisdiction, concurrent with the United States Court of Federal Claims, over any civil action or claim against the United States, not exceeding $10,000 in amount, that is founded upon any Act of Congress.  (The Tucker Act, 28 U.S.C. 1491(a)(1), is very similar; it assigns jurisdiction over claims against the United States to the Court of Federal Claims regardless of monetary amount.)

Bormes sued the United States under an Act of Congress—specifically, the Fair Credit Reporting Act (FCRA). The district court dismissed his claims, and Bormes appealed to the Federal Circuit, which has exclusive jurisdiction of appeals from district court decisions when the district court's jurisdiction was based on the Little Tucker Act. The government argued that the Little Tucker Act did not apply and moved to transfer the appeal to the Seventh Circuit.  The Federal Circuit denied the transfer motion and vacated the district court's dismissal on the merits, holding that the Little Tucker Act applied and waived the government's sovereign immunity.

The Supreme Court reversed, holding that Bormes's claim under the FCRA did not fall within the terms of the Tucker Act. The Court remarked that the Tucker Act does not create substantive rights; it is simply a jurisdictional provision that waives the government's sovereign immunity for claims based on other sources of substantive law. The Court also traced the history of the Tucker Act, commenting that it was designed to supply a cause of action against the United States for breach of legal obligations "not otherwise judicially enforceable." But, the Court held, because the FCRA has its own judicial remedies, its "self-executing remedial scheme supersedes the gap-filling role of the Tucker Act." Thus, the FCRA's own text controlled whether Congress extended liability to the federal government for violation of its provisions.

Justice Scalia delivered the unanimous opinion of the Court.

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