Supreme Court Weighs Government Liability Under Credit Reporting Law

By | October 3, 2012

The U.S. Supreme Court on Tuesday considered whether the federal government could be liable for money damages by printing confidential credit card information on a customer’s receipt, increasing the risk of identity theft.

A decision against the government could make it easier for consumers to pursue damages claims under the federal Fair Credit Reporting Act (FCRA), designed to ensure fair and accurate credit reporting and to protect customer privacy.

But this would force the government to give up its traditional immunity from lawsuits, which could get expensive given the range of financial transactions it processes.

“If you’re right about this, the consequences are enormous for the federal fisc,” Justice Ruth Bader Ginsburg told John Jacobs, a lawyer whose client James Bormes had brought the case.

Bormes, who is also a lawyer, had filed a lawsuit in Illinois on behalf of a client and paid a $350 filing fee through the federal government’s system with his personal American Express credit card.

He said the receipts for that transaction contained his card’s expiration date, violating FCRA provisions designed to protect against identity theft.

Noting that the law permits claims against a “person,” which is defined to include any “government,” Bormes sought class-action status on behalf of people who had received receipts from the government that displayed card expiration dates, or more than the last five digits of credit card and debit card numbers.

The government countered that it had not waived sovereign immunity, and therefore that Bormes could not pursue his case.

But a federal appeals court in November 2010 said the Tucker Act, a separate law allowing money claims against the government, allowed the case to go forward.

Deputy Solicitor General Sri Srinivasan, arguing on the federal government’s behalf, told the justices that t he appeals court ruling w as wrong, and that the FCRA does not reflect an “unequivocal expression” of a government willingness to be sued.

He also said that the remedies available to consumers under the FCRA should prevail over the “more general scheme” of damages set forth in the Tucker Act.

Chief Justice John Roberts suggested that reading the two acts together could hurt the government position.

“FCRA does not specifically address the liability of the United States,” Roberts told Srinivasan. “The Tucker Act does.”

Jacobs said that because identity theft had become a near “epidemic” by 2003, when the truncated disclosures on card receipts became mandatory, it would have made no sense for Congress to shield the government.

“In terms of protecting the public, you wouldn’t want to exclude such a large thing,” he said.

But Justice Elena Kagan asked whether it would be proper to abandon the traditional assumption that the government retains immunity unless it says otherwise. “You’re asking us to flip the presumption from now on,” she told Jacobs.

A decision is expected by June.

The case is U.S. v. Bormes, U.S. Supreme Court, No. 11-192.

Topics USA

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