The issue was raised when Bormes, a lawyer, filed a lawsuit in Illinois on behalf of a client and paid a filing fee of $350 using the federal government’s pay.gov gateway with his personal credit card. He found the receipts for the transaction contained the expiration date of his card, which is a violation of the federal Fair Credit Reporting Act. The FCRA was created to protect customer privacy and combat identity theft, as also to provide accurate credit reporting.
Bornes filed a lawsuit claiming class-action status noting that the definition of a ‘person’ who may be sued under the FCRA also included “government” by implication. He filed the lawsuit on behalf of people who had received receipts from the federal government payment systems showing their card expiration dates or more than the last five digits of card numbers.
The government claimed sovereign immunity, but in November 2010, a federal appeals court allowed the case to proceed under provisions of the Tucker Act, a law that allowed money claims against the government.
On Tuesday, Justice Ruth Bader Ginsburg told the lawyer for Bornes, “If you’re right about this, the consequences are enormous for the federal fisc.”
Though, Sri Srinivasan, the Deputy Solicitor General, argued on behalf of the federal government that the appeals court had erred and the FCRA does not signify an “unequivocal expression” of the government waiving its immunity, his argument seemed tenuous.
Chief Justice John Roberts opined that reading the two acts together puts the government on the wrong foot. He said, though the “FCRA does not specifically address the liability of the United States … The Tucker Act does.”
Bornes’ lawyer, John Jacobs said, since truncated disclosures on card receipts were mandated by the Congress to combat widespread identity theft, it made no sense for the Congress to have intended shielding the government in such requirements. He said, “In terms of protecting the public, you wouldn’t want to exclude such a large thing.”
However, Justice Elena Kagan asked Jacobs whether it would be right to abandon the traditional assumption of government immunity unless it is specifically removed by conduct of the government or by words of the statute. She said, “You’re asking us to flip the presumption from now on.”
The case is U.S. v. Bormes, U.S. Supreme Court, No. 11-192.