United States Court of Appeals
for the Federal Circuit
__________________________
JAMES X. BORMES, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2009-1546
__________________________
Appeal from the United States District Court for the
Northern District of Illinois in case no. 08-CV-7409, Judge
Charles R. Norgle, Sr.
___________________________
Decided: November 16, 2010
___________________________
JOHN G. JACOBS, The Jacobs Law Firm, CHTD., of
Chicago, Illinois, argued for plaintiff-appellant.
HENRY C. WHITAKER Trial Attorney, Appellate Staff,
Civil Division, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, and MARK B. STERN, Attorney. Of counsel was
TIMOTHY P. MCILMAIL, Attorney.
BORMES v. US 2
__________________________
Before RADER, Chief Judge, and NEWMAN and MOORE,
Circuit Judges.
RADER, Chief Judge.
James Bormes appeals the dismissal of his class ac-
tion lawsuit under the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681n(a). See Bormes v. United
States, 638 F. Supp. 2d 958 (N.D. Ill. 2009). Because
FCRA is a money-mandating statute that supports juris-
diction under 28 U.S.C. § 1346(a)(2), this court vacates
the dismissal and remands for further proceedings.
I
On August 9, 2008, Bormes, an attorney, filed a law-
suit 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 govern-
ment then provided Bormes with a confirmation webpage
that appeared on Bormes’ computer screen. The confir-
mation page contained the expiration date of Bormes’
credit card.
Alleging that the display of his and similarly situated
plaintiffs’ credit card information violated sec-
tion 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 provi-
sion, 15 U.S.C. § 1681p.
3 BORMES v. US
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 Bor-
mes’ 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, 2010 WL 331771, at *2
(Fed. Cir. Jan. 27, 2010). The panel did not, however,
make any decision as to whether FCRA is a “money-
mandating statute” sufficient to create jurisdiction under
the Little Tucker Act.
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., 595 F.3d 754,
759 (7th Cir. 2010) (Easterbrook, C.J.). The appellate
court in Talley also held that it did not need to transfer
the case to this court because the plaintiff only sought to
use the Tucker Act for a waiver of sovereign immunity,
not as a basis for jurisdiction. “The Tucker Act might
have been used for jurisdiction; it is both a grant of juris-
diction and a waiver of sovereign immunity. But if the
plaintiff elects to use the latter without the former, then
jurisdiction does not arise under the Tucker Act. This
court therefore has appellate jurisdiction.” Id. at 763.
BORMES v. US 4
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., 595 F.3d 754 (7th Cir. 2010) (reh’g en
banc granted, opinion vacated, June 10, 2010). As of the
date of this opinion, the Talley case remains pending.
II
The objective of FCRA is to “promote efficiency in the
Nation’s banking system and to protect consumer pri-
vacy.” TRW Inc. v. Andrews, 534 U.S. 19, 23 (2001). The
1970 Act originally regulated “consumer reporting
agenc[ies],” or “any person” who assembles or evaluates
personal information about consumers that is used to
determine eligibility for credit and insurance, among
other purposes. 15 U.S.C. § 1681a(d),(f) (2006). FCRA
also originally imposed duties on “persons,” for example,
prohibiting a person from furnishing any information
about consumers “to any consumer reporting agency if the
person knows or has reasonable cause to believe that the
information is inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A)
(2006). The Act defined the term “person” in FCRA to
mean “any individual, partnership, corporation, trust,
estate cooperative association, government or governmen-
tal subdivision or agency, or other entity.” 15 U.S.C. §
1681a(b) (2006) (emphases added). As originally enacted,
however, the damages provisions for willful or negligent
noncompliance with FCRA only covered “consumer report-
ing agenc[ies]” or “user[s] of information.” Sections 616
and 617 of Pub. L. 91-508, 84 Stat. 1114, 1134 (1970).
5 BORMES v. US
In 1996, an amendment to FCRA made, among other
things, the damages provisions applicable to “[a]ny per-
son.” 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 per-
son for obtaining a consumer report under
false pretenses or knowingly without a
permissible purpose, actual damages sus-
tained 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 rea-
BORMES v. US 6
sonable attorney’s fees as determined by
the court.
15 U.S.C. § 1681n (emphasis added).
In 2003, another amendment to FCRA added §
1681c(g)(1), the liability provision at issue in this case.
Fair and Accurate Credit Transactions Act of 2003, Sec-
tion 113 of Pub. L. 108-159, 117 Stat. 1959. That provi-
sion states:
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).
III
The Little Tucker Act, 28 U.S.C. § 1346, gives the dis-
trict 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 Con-
gress.” 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, 129 S. Ct.
1547, 1551 (2009).
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 Fed-
eral Claims jurisdiction over specific causes of action
against the United States. The Indian Tucker Act grants
7 BORMES v. US
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, 57 Fed.
App’x. 87, 88 n.1 (3d Cir. 2003). The Little Tucker Act
grants concurrent jurisdiction to district courts and the
Court of Federal Claims, to money claims against the
United States not exceeding $10,000. Id. at 88. This
court examines cases under the Indian and Big Tucker
Acts to help resolve this appeal.
Because the Little Tucker Act operates to waive sov-
ereign 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, 463 U.S. 206, 216
(1983) (“If a claim falls within the terms of the Tucker
Act, the United States has presumptively consented to
suit.”).
To support jurisdiction under the Little Tucker Act,
the substantive law that provides the basis for the plain-
tiff’s claims must be “money-mandating.” Fisher v.
United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). A
source of law is money-mandating if it “can fairly be
interpreted as mandating compensation by the Federal
Government for the damage sustained.” United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)
(quotation omitted). This “fair interpretation” rule de-
mands a showing “demonstrably lower” than the initial
waiver of sovereign immunity: “It is enough . . . that a
statute creating a Tucker Act right be reasonably amena-
ble to the reading that it mandates a right of recovery in
BORMES v. US 8
damages. While the premise to a Tucker Act claim will
not be ‘lightly inferred,’ . . . a fair inference will do.” Id.
In most money-mandating inquiries, the statute at issue
clearly imposes duties of some kind on the federal gov-
ernment; the main questions become the extent of those
duties and the availability of a money remedy in the event
of a breach of those duties.
In White Mountain, for example, the act at issue ex-
pressly stated that the “‘former Fort Apache Military
Reservation’ would be ‘held by the United States in trust
for the White Mountain Apache Tribe.’” 537 U.S. at 469
(quoting Pub. L. 86-392, 74 Stat. 8). The Court was asked
whether that trust relationship could be fairly interpreted
to subject the government to liability in money damages
for failing to preserve the trust property. Id. at 475. The
Court determined that such an interpretation was fair,
relying on “elementary trust law.” Id.
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. 456 U.S.
728, 738 (1982). The Court held that “jurisdiction over
respondent’s complaint cannot be premised on the as-
serted violation of regulations that do not specifically
authorize awards of money damages.” Id. at 739. Al-
though the Court in Sheehan looked for a “specific[]
authoriz[ation]” of money damages, 456 U.S. at 739, the
Court clarified in White Mountain that “an explicit provi-
sion for money damages” is not needed in every case. 537
U.S. at 477. Rather, “a fair inference will require an
express provision, when the legal current is otherwise
against the existence of a cognizable claim.” Id.
9 BORMES v. US
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, 487 F.3d 871 (Fed. Cir. 2007),
this court confirmed the jurisdiction of the Court of Fed-
eral Claims because the statute at issue provided that
“‘the Secretary of the Interior shall make a payment for
each fiscal year to each unit of general local government
in which entitlement land is located as set forth in this
chapter,’” id. at 877 (quoting 31 U.S.C. § 6902(a)(1) (em-
phasis added)), and the plaintiff had clearly been desig-
nated a “unit of general local government.” Id. Moreover,
the court held that the statute clearly mandated money
damages because, as “we have repeatedly recognized[,] . . .
the use of the word ‘shall’ generally makes a statute
money-mandating.” Id.
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 re-
cover under the statute. See Greenlee County, 487 F.3d at
877 (“[W]here plaintiffs have invoked a money-mandating
statute and have made a non-frivolous assertion that they
are entitled to relief under the statute, we have held that
the Court of Federal Claims has subject-matter jurisdic-
tion over the case.”) (quotations omitted)). As discussed
below, the government does dispute the adequacy of
Bormes’s statement of a claim under section 1681c(g)(1).
That dispute, however, is not jurisdictional. Instead, this
case asks whether the federal government is subject to
the damages remedy.
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.
BORMES v. US 10
Likewise, the government invokes LeBlanc v. United
States, 50 F.3d 1025 (Fed. Cir. 1995), to support its posi-
tion. In LeBlanc, the plaintiff was a former employee of
the government’s Defense Contract Administration Ser-
vice. Mr. LeBlanc alleged that he was fired in retaliation
for his earlier suit against a government contractor under
the False Claims Act. Mr. LeBlanc sued the government
for wrongful termination, seeking, among other things,
reinstatement and back pay. Mr. LeBlanc contended that
the following language from the False Claims Act was
money-mandating: “Any employee who is discharged . . .
by his or her employer because of lawful acts done by the
employee on behalf of the employee or others in further-
ance of an action under this section . . . shall be entitled to
all relief necessary to make the employee whole.” Id. at
1029 (quoting 31 U.S.C. § 3730(h)) (emphasis added).
The court noted, however, that another statute, the Civil
Service Reform Act of 1978 (CSRA), “essentially pre-
empted the field” of providing procedural protections for
civil service employees faced with adverse personnel
actions. Id. at 1029. Absent a “clear statement in section
3730(h) of a congressional intent to create a remedy for
federal employees in addition to those provided in the
CSRA,” this court declined to interpret the Act to man-
date monetary compensation by the federal government
for any damages. Id. at 1030.
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
11 BORMES v. US
reference to “any . . . government” in § 1681a(b)’s defini-
tion 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 defini-
tion of “person” in section 1681a(b) “subject[s] the United
States to [FCRA’s] substantive provisions.” Oral Argu-
ment at 10:50, Talley v. U.S. Dep’t of Agric., 595 F.3d 754
(No. 09-2123), available at http://www.ca7.uscourts.gov/.
Once this court reads “person” as including the federal
government in some provisions, a fair interpretation,
based on “elementary” rules of statutory interpretation,
White Mountain, 537 U.S. at 475, applies the same defini-
tion throughout. See Burgess v. United States, 553 U.S.
124, 129 (2008) (“Statutory definitions control the mean-
ing of statutory words . . . in the usual case.”) (alterations
in original; internal quotation marks omitted)). More-
over, as in Greenlee County, the Act used the mandatory
“shall” in its damages provision--another indication that
the law envisions monetary redress for violations. As
Chief Judge Easterbrook succinctly stated in the vacated
Talley opinion, “Congress need not add ‘we really mean
it!’ to make statutes effectual.” 595 F.3d at 758.
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-
BORMES v. US 12
mandating, stated that “the CFC lacks jurisdiction to
adjudicate claims created by statutes, like the DMCA,
which specifically authorize jurisdiction in the district
courts.” 533 F.3d 1374, 1384 (2008).
Blueport does not control in this case. Because the
Big Tucker Act and Little Tucker Act follow the same
rules, this court may ask if Blueport would prevent the
Court of Federal Claims from exercising jurisdiction if
Bormes had initiated his case in that court. If Blueport
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.
Blueport 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 court of competent jurisdic-
tion.” 15 U.S.C. § 1681p (emphasis added).
The government asserts that “any other court of com-
petent 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 “provid[ing]
for concurrent federal-court and state-court jurisdiction
over civil liability suits.” Bank One Chicago N.A. v.
Midwest Bank & Trust Co., 516 U.S. 264, 268, 275 (1996).
The government also argues because the FCRA grants
jurisdiction to federal courts without regard to the
amount in controversy, it could not have intended to grant
jurisdiction to the Court of Federal Claims, because the
13 BORMES v. US
Tucker Act grants jurisdiction to the Court of Federal
Claims only for claims over $10,000.
Moreover, FCRA initially contained an amount-in-
controversy requirement for federal-question suits as well
as diversity suits. That amount-in-controversy require-
ment thus explains the jurisdictional grant in the FCRA
to district courts “without regard to the amount in contro-
versy,” 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 fed-
eral-question cases was rescinded. Section 2(a) of Pub.L.
96-486, 94 Stat. 2369 (1980). If the “amount in contro-
versy” 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 stat-
ute. 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.” 2010 WL 331771, at *2.
Moreover, this court will not hold that the Act impliedly
repealed the jurisdictional grant of the Tucker Act for
enforcement of FCRA rights simply because the FCRA
does not contain an amount-in-controversy requirement.
See Preseault v. ICC, 494 U.S. 1, 12 (1990) (“Congress did
not exhibit the type of ‘unambiguous intention to with-
draw the Tucker Act remedy that is necessary to preclude
a Tucker Act claim.”) (internal quotations and citations
omitted)).
BORMES v. US 14
As discussed, a fair interpretation of FCRA mandates
money damages from the federal government for dam-
ages. This conclusion withstands an attack based on
arguments about an “express” waiver of sovereign immu-
nity 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., 540 U.S. 736, 745-46 (2004). Thus, a question
arises about the sufficiency of this waiver and the particu-
lar clarity needed to infer a waiver of sovereign immunity
when considering statutory amendments that change the
ordinary meaning of preexisting provisions. See Emp’s of
the Dep’t of Public Health & Welfare v. Dep’t of Public
Health & Welfare, 411 U.S. 279 (1973). Whatever
strength this argument has in considering the sufficiency
of FCRA’s waiver of sovereign immunity, it is not compel-
ling in the context of determining FCRA’s mandate of
money damages.
This court is also aware that FCRA provides for puni-
tive and criminal punishment, which cannot be imposed
upon the government under the Tucker Act. See Brown v.
United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (holding
that Tucker Act is “limited to cases in which the Constitu-
tion or a federal statute requires the payment of money
damages as compensation for their violation”) (emphasis
added)). This limitation on Tucker Act remedies does not
mean that FCRA is not money-mandating. Rather this
limitation means that FCRA’s money-mandating provi-
sions do not extend beyond certain types of claims, such
as those at issue in this case. See Talley, 595 F.3d at 761
15 BORMES v. US
(“As we see things . . . [the government’s argument]
means only that punitive damages are unavailable
against the United States unless the Tucker Act author-
izes them.”).
Similarly, FCRA permits recovery for negligence, but
the Tucker Act does not permit negligence claims. See
Rick’s Mushroom Serv. v. United States, 521 F.3d 1338,
1343 (Fed. Cir. 2008). As the vacated opinion in Talley
also noted, however, a negligence claim is different than a
statutory claim that includes an element which is ana-
lyzed under a negligence standard. 595 F.3d at 761.
In addition, a separate FCRA provision expressly
provides for remedies against the United States. Specifi-
cally, 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 depart-
ment of the United States,” FCRA limits statutory dam-
ages 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 reme-
dial scheme in section 1681u because that section specifi-
cally 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,
BORMES v. US 16
or within five years after the date on which the 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.”
595 F.3d at 760 (citing United States v. Clintwood Elk-
horn Mining Co., 553 U.S. 1 (2008)). This court adopts
the same reasoning in support of the statutory language
and context that makes the FCRA money-mandating.
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)(1), which requires
“print[ing] 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, 48 F.3d 1166, 1170 (Fed. Cir. 1995) (deter-
mining whether a complaint was properly dismissed
under Rule 12(b)(6) is a question of law that the court
reviews independently); see also Thompson v. Microsoft
Corp., 471 F.3d 1288, 1291 (Fed. Cir. 2006) (addressing a
question of law regarding jurisdiction in the first in-
stance). Nonetheless, the government, both in its brief
17 BORMES v. US
and at oral argument, asked this court for the opportunity
to fully develop its Rule 12(b)(6) arguments before the
district court. This court decides to give weight to the
moving party’s preference in this case, and will allow the
district court to consider first the government’s motion to
dismiss on that additional ground, as well as any others
that have not been waived. Thus, this court vacates the
judgment and remands for further proceedings.
VACATED AND REMANDED