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Supreme Court hears arguments on federal liability for credit card information leak

The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases [JURIST report] on Tuesday. In US v. Bormes [transcript, PDF] the court heard arguments to determine whether the federal government has sovereign immunity for damages arising from the Fair Credit Reporting Act (FCRA) [text, PDF]. The US Court of Appeals for the Federal Circuit ruled in 2010 that the Little Tucker Act [Cornell LII backgrounder] waived sovereign immunity [opinion] for money claims against the US under the FCRA. The Solicitor General's office argued that the government can only waive its sovereign immunity when it unequivocally expresses the intent to do so, which it does not under the Tucker Act. In the Solicitor General's view, immunity can only be waived when a statute "does not contain its own remedial mechanism" and "substantive obligations in the statute run against [only] the United States." The respondent, an attorney for plaintiff lawyer James Bormes, argued that since the government explicitly retained sovereign immunity in section 1681b of the FCRA, it waived immunity by not explicitly stating that in the Tucker Act.

The court also heard arguments in Kloeckner v. Solis [transcript] to determine appellate jurisdiction in wrongful termination and discrimination cases for federal employees. At issue is whether a party may appeal a case involving both wrongful termination and discrimination claims to the US Court of Appeals for the Federal Circuit or a district court, when the Merit Systems Protection Board (MSPB) [official website] decides the case without determining the merits of a discrimination claim. The petitioner argued for the district court, stating that district courts have jurisdiction over "all mixed cases" and later noted that appeals of the MSPB appear to require de novo review, which the Federal circuit cannot provide. The Solicitor General's attorney argued that 28 USC § 1295 [text] provides that the Federal Circuit has automatic jurisdiction over all MSPB decisions.

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