A federal judge in Illinois threw out Bormes' class-action lawsuit, saying that Congress did not explicitly waive the federal government's sovereign immunity in the FCRA. But the lawsuit was revived by the U.S. Court of Appeals for the Federal Circuit, which said the Little Tucker Act supplied the necessary waiver. Government lawyers argued that the appeals court should have not looked to a second law, when the FCRA clearly did not make the government liable for damages.
Scalia said the court was not making a decision on whether the government can be sued under the FCRA. "But whether or not FCRA contains the necessary waiver of immunity, any attempt to append a Tucker Act remedy to the statute's existing remedial scheme interferes with its intended scope of liability," Scalia said.
The case now goes back to the federal appeals court.