James Bormes appeals the dismissal of his class action lawsuit under the Fan-Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681n(a).
See Bormes v. United States,
I
On August 9, 2008, Bormes, an attorney, filed a lawsuit on behalf of one of his clients in the U.S. District Court for the Northern District of Illinois using its online document filing system. Bormes paid the filing fee using his credit card, and the transaction was processed through the government’s pay.gov system. The government then provided Bormes with a confirmation webpage that appeared on Bormes’ computer screen. The confirmation page contained the expiration date of Bormes’ credit card.
Alleging that the display of his and similarly situated plaintiffs’ credit card information violated section 1681c(g)(1) of FCRA, Bormes filed a class action lawsuit against the government. Bormes seeks, among other things, statutory damages, attorney’s fees, and costs. In his complaint, Bormes alleged jurisdiction under both 28 U.S.C. § 1346(a)(2), commonly referred to as the Little Tucker Act, and FCRA’s own jurisdictional provision, 15 U.S.C. § 1681p.
The government filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. The district court concluded that it had jurisdiction under FCRA, but granted the government’s motion to dismiss under Rule 12(b)(6) on the ground that FCRA did not waive the federal government’s sovereign immunity for this suit. Because the district court exercised jurisdiction under the jurisdictional provision in FCRA itself, it held that Bormes’ arguments for jurisdiction under the Little Tucker Act were moot.
On appeal, the government filed a motion to transfer this case to the Court of Appeals for the Seventh Circuit. A motions panel of this court denied the motion on the ground that Bormes’ complaint invoked the district court’s jurisdiction under the Little Tucker Act.
Bormes v. United States,
No.2009-1546,
After Bormes filed his appeal in this case, a panel of the Court of Appeals for the Seventh Circuit determined that the Tucker Act waives sovereign immunity for FCRA claims.
See Talley v. U.S. Dep’t of Agric.,
The Seventh Circuit later granted the government’s motion for rehearing
en banc
and vacated the panel opinion. In the order granting rehearing
en banc,
the court asked the parties to brief “whether the Tucker Act is the exclusive source of subject-matter jurisdiction for remedies that depend on its waiver of sovereign immunity and, if it is, whether this appeal should be transferred to the Federal Circuit under 28 U.S.C. § 1631.”
Talley v. U.S. Dep’t of Agric.,
II
The objective of FCRA is to “promote efficiency in the Nation’s banking system and to protect consumer privacy.”
TRW Inc. v. Andrews,
In 1996, an amendment to FCRA made, among other things, the damages provisions applicable to “[a]ny person.” Consumer Credit Reporting Reform Act of 1996, Section 2412 of Pub.L. 104-208, 110 Stat. 3009-446. Specifically, FCRA now provides as follows:
(a) In general
Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of—
(1) (A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or
(B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater;
(2) such amount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court.
15 U.S.C. § 1681n (emphasis added).
In 2003, another amendment to FCRA added § 1681c(g)(l), the liability provision at issue in this case. Fair and Accurate Credit Transactions Act of 2003, Section 113 of Pub.L. 108-159, 117 Stat.1959. That provision states:
*578 Except as otherwise provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.
Id. (emphasis added).
Ill
The Little Tucker Act, 28 U.S.C. § 1346, gives the district courts jurisdiction, concurrent with the Court of Federal Claims, over “any other [than tax refund] civil action or claim against the United States, not exceeding $10,000 in amount, founded ... upon any Act of Congress.” The Little Tucker Act is therefore a jurisdictional provision that also operates “to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).”
United States v. Navajo Nation
, — - U.S. -,
The three commonly-named sections of the Tucker Act are similar. The Indian Tucker Act, 28 U.S.C. § 1505, the Big Tucker Act, 28 U.S.C. § 1491, and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), each grant the Court of Federal Claims jurisdiction over specific causes of action against the United States. The Indian Tucker Act grants the Court of Federal Claims exclusive jurisdiction over all Indian claims against the United States. 28 U.S.C. § 1505. The Big Tucker Act grants exclusive jurisdiction to the Court of Federal Claims to money claims against the United States exceeding $10,000. Jarrett
v. White,
Because the Little Tucker Act operates to waive sovereign immunity, the district court erred in dismissing Bormes’ case without considering whether the Little Tucker Act provided an alternative basis for jurisdiction. If the Little Tucker Act authorizes the district court to hear this case, it also provides the waiver of sovereign immunity that the trial court found lacking in the FCRA itself.
See United States v. Mitchell,
To support jurisdiction under the Little Tucker Act, the substantive law that provides the basis for the plaintiffs claims must be “money-mandating.”
Fisher v. United States,
*579
In
White Mountain,
for example, the act at issue expressly stated that the “ ‘former Fort Apache Military Reservation’ would be ‘held by the United States in trust for the White Mountain Apache Tribe.’ ”
In
Army and Air Force Exchange Service (AAFES) v. Sheehan,
the Court held AAFES regulations governing separation procedures for certain military post exchange employees did not constitute an express or implied-in-fact contract and thus did not authorize the award of money damages in the event of a Government breach.
This court often addresses another type of money-mandating question: whether the plaintiff is within the class of plaintiffs entitled to recover under a statute that provides for money damages. Thus, in
Greenlee County, Arizona v. United States,
This case poses more difficult questions. Section 1618n unquestionably provides for money damages. Moreover, the record shows that, at least for jurisdiction, Bormes fits within the class of plaintiffs entitled to recover under the statute.
See Greenlee County,
This court refers to the cases above to gain insight into the kind of language that makes a statute money-mandating under the “fair interpretation” standard. Likewise, the government invokes
LeBlanc v. United States,
Section 1618n resembles the provisions at issue in
White Mountain
and
Greenlee County
more than those in
Sheehan
or
LeBlanc.
Unlike
LeBlanc,
for example, where the Act gave no indication that the term “any employee” would include federal employees, in this case the Act expressly defines the term “person” to include “any ... government.” § 1681a(b). Similarly, and unlike
Sheehan,
this case does not lack a “specific authorization.” Rather, government counsel agreed at oral argument that the reference to “any ... government” in § 1681a(b)’s definition of “person” refers to the federal government. Oral Argument at 14:18-15:30
&
18:40-19:07,
available at
http://www.cafc.uscourts.gov/. Indeed, the same attorney, in oral argument before the U.S. Court of Appeals for the Seventh Circuit in the
Talley
case, noted that the definition of “person” in section 1681a(b) “subjects] the United States to [FCRA’s] substantive provisions.” Oral Argument at 10:50,
Talley v. U.S. Dep’t of Agric.,
The government argues that the FCRA cannot be money-mandating because it contains a distinctive grant of jurisdiction to federal district courts. Specifically, section 1681p states, in relevant part, “[a]n action to enforce any liability created under this subchapter may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction.” The government relies on this court’s opinion in
Blueport Co. v. United States,
which, in the context of holding that the Digital Millennium Copyright Act (DMCA) is not money-mandating, stated that “the CFC lacks jurisdiction to adjudicate claims created by statutes, like the DMCA, which specifically author
*581
ize jurisdiction in the district courts.”
BluepoH does not control in this case. Because the Big Tucker Act and Little Tucker Act follow the same rules, this court may ask if BluepoH would prevent the Court of Federal Claims from exercising jurisdiction if Bormes had initiated his case in that court. If BluepoH would block jurisdiction in the Court of Federal Claims under the Big Tucker Act, then it would also prevent a district court from exercising jurisdiction (and finding the concomitant waiver of sovereign immunity) in the Little Tucker Act. This court need not, however, reach that conclusion.
BluepoH does not apply because the jurisdictional grant in FCRA is not “like the DMCA.” Id. Instead, the former grants jurisdiction to “any appropriate United States district court, without regard to the amount in controversy, or in any other couH of competent jurisdiction” 15 U.S.C. § 1681p (emphasis added).
The government asserts that “any other court of competent jurisdiction” refers to state court jurisdiction rather than other federal tribunals. The government explains that the Supreme Court interpreted the phrase “any other court of competent jurisdiction” as “providing] for concurrent federal-court and state-court jurisdiction over civil liability suits.”
Bank One Chicago N.A. v. Midwest Bank & Trust Co.,
Moreover, FCRA initially contained an amount-in-controversy requirement for federal-question suits as well as diversity suits. That amount-in-controversy requirement thus explains the jurisdictional grant in the FCRA to district courts “without regard to the amount in controversy,” for without that language, FCRA claims below the amount-in-controversy requirement would have been relegated to state courts.
In 1980, however, the jurisdictional minimum for federal-question cases was rescinded. Section 2(a) of Pub.L. 96-486, 94 Stat. 2369 (1980). If the “amount in controversy” language is to retain meaning, the government argues, it should now refer to the amount-in-controversy requirement that distinguishes Big Tucker Act from Little Tucker Act cases and should indicate that Congress meant to take suits for over $10,000 out of the CFC’s jurisdiction, and thus out of the scope of the Tucker Act.
We conclude that the Court of Federal Claims is a court of competent jurisdiction for purposes of this statute. As the motions panel in this case noted, “[t]he Court [in
Bank One
] did not state ... that federal courts other than the district courts would not also have concurrent jurisdiction over such cases.”
As discussed, a fair interpretation of FCRA mandates money damages from the federal government for damages. This conclusion withstands an attack based on *582 arguments about an “express” waiver of sovereign immunity in FCRA. As discussed earlier, the test for a money-mandating statute is less stringent than the test for a waiver of sovereign immunity in the same statute.
In this connection, this court notes that the 1996 and 2003 amendments subjected “persons” who print receipts to liability. Of course, under FCRA’s unique definition of “person,” a sovereign, namely the United States, would also face potential liability.
See USPS v. Flamingo Indus. (USA) Ltd.,
This court is also aware that FCRA provides for punitive and criminal punishment, which cannot be imposed upon the government under the Tucker Act.
See Brown v. United States,
Similarly, FCRA permits recovery for negligence, but the Tucker Act does not permit negligence claims.
See Rick’s Mushroom Serv. v. United States,
In addition, a separate FCRA provision expressly provides for remedies against the United States. Specifically, section 1681u requires consumer reporting agencies to furnish consumer credit information to the Federal Bureau of Investigation, but limits the FBI’s response tools. In imposing liability on “[a]ny agency or department of the United States,” FCRA limits statutory damages to $100 and provides actual and punitive damages. 15 U.S.C. § 1681u(i). With respect to this language, the government argues that Congress knew how to subject the United States to damages when it wanted to do so. To the contrary, however, this provision shows only that Congress presumably needed to create a different remedial scheme in section 1681u because that section specifically limits what the government can do with credit information. This different scheme does not mean that the Act did not speak broadly enough to include the United States when it prohibited certain “persons” from use of credit information.
Finally, the government argues that different statutes of limitations govern Tucker Act claims and FCRA claims. Under section 1681p, a FCRA action must be commenced either two years after the plaintiff discovers the violation, or within five years after the date on which the
*583
alleged FCRA violation occurs. In contrast, a default six-year statute of limitations applies to Tucker Act claims. 28 U.S.C. § 2401(a). The vacated
Talley
opinion convincingly dealt with this argument as well, noting that “different statutes of limitations are common in federal practice, and the rule is that the more specific limit prevails, not that a short limit cancels out any substantive statute.”
IV
The parties have also briefed whether Bormes’ claim should be dismissed for failure to state a claim upon which relief can be granted. Specifically, the government contends that the alleged wrongful action in this case — providing credit card information that is displayed on a consumer’s computer screen — does not qualify as a willful violation of 15 U.S.C. § 1681c(g)(l), which requires “printing] more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.”
Whether a case must be dismissed under Rule 12(b)(6) is a question of law that this court may answer in the first instance.
See
Fed.R.Civ.P. 12(b)(6) advisory committee’s note;
Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States,
VACATED AND REMANDED