In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-‐‑1602
JAMES X. BORMES,
Plaintiff-‐‑Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-‐‑Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 C 7409 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 27, 2013 — DECIDED JULY 22, 2014
____________________
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. In an earlier stage of this liti-‐‑
gation, the Supreme Court held that the Little Tucker Act, 28
U.S.C. §1346(a)(2), does not waive the sovereign immunity
of the United States in a suit seeking to collect damages for
an asserted violation of the Fair Credit Reporting Act
(FCRA), 15 U.S.C. §§ 1681–1681x. United States v. Bormes, 133
S. Ct. 12 (2012). Although the case reached the Supreme
2 No. 13-‐‑1602
Court from the Federal Circuit, the Supreme Court remand-‐‑
ed it to us, because the suit originated in the Northern Dis-‐‑
trict of Illinois. (The original appeal had been routed to the
Federal Circuit only because of the Tucker Act.) The Su-‐‑
preme Court told us to decide “whether FCRA itself waives
the Federal Government’s immunity to damages under
§1681n.” Id. at 20.
James Bormes, an attorney, tendered the filing fee for one
of his suits via pay.gov, which the federal courts use to facili-‐‑
tate electronic payments. The web site sent him an email re-‐‑
ceipt that included the last four digits of his credit card’s
number, plus the card’s expiration date. Bormes, who be-‐‑
lieves that §1681c(g)(1) allows a receipt to contain one or the
other of these things, but not both, then filed this suit against
the United States seeking damages.
Any “person” who willfully or negligently fails to com-‐‑
ply with the Fair Credit Reporting Act is liable for damages.
15 U.S.C. §§ 1681n(a), 1681o(a). “Person” is a defined term:
“any individual, partnership, corporation, trust, estate, co-‐‑
operative, association, government or governmental subdivision
or agency, or other entity.” 15 U.S.C. §1681a(b) (emphasis
added). The United States is a government. One would sup-‐‑
pose that the end of the inquiry. By authorizing monetary
relief against every kind of government, the United States has
waived its sovereign immunity. And so we conclude. (As far
as we can tell, this is the first appellate decision on the issue.)
The United States maintains that the definition should
not be given its natural meaning. As originally enacted in
1970, §1681n authorized damages against only consumer re-‐‑
porting agencies and users of information. In 1996 Congress
amended §1681n to authorize damages against all “persons.”
No. 13-‐‑1602 3
According to the United States, none of the legislative histo-‐‑
ry analyzing or explaining this amendment discusses the
fact that this change, applied according to the terms of
§1681a(b), exposes the Treasury to monetary awards. Be-‐‑
cause Congress in 1996 did not evince knowledge of how the
revised version of §1681n interacts with §1681a(b), the ar-‐‑
gument concludes, the FCRA does not waive sovereign im-‐‑
munity for damages even though the definition of “person”
includes the United States.
The United States concedes that it is a “person” for the
purpose of the Act’s substantive requirements. It denies only
that §1681n authorizes damages. But if the United States is a
“person” under §1681a(b) for the purpose of duties, how can
it not be one for the purpose of remedies? Nothing in the
FCRA allows the slightest basis for a distinction.
The absence of legislative history discussing sovereign
immunity in 1996 is hardly surprising. Immunity had been
waived in 1970. Why bring the subject up again? Apparently
no one in the Executive Branch asked Congress to revise the
definition in §1681a(b) when changing the category of enti-‐‑
ties for which §1681n authorizes awards of damages.
The argument that a silent legislative history prevents
giving the enacted text its natural meaning has been made
before—and it has not fared well. Why should Congress have
to reenact §1681a(b), or repeat it in the committee reports,
every time it amends some other portion of the statute? Sec-‐‑
tion 1681a(b) does what it has done since 1970, no matter
what happens to other sections, and what §1681a(b) does is
waive sovereign immunity for all requirements and reme-‐‑
dies that another section authorizes against any “person.”
4 No. 13-‐‑1602
Congress need not add “we really mean it!” to make
statutes effectual. See, e.g., Swain v. Pressley, 430 U.S. 372, 378
& n.11 (1977); Harrison v. PPG Industries, Inc., 446 U.S. 578,
592 (1980) (“it would be a strange canon of statutory con-‐‑
struction that would require Congress to state in committee
reports or elsewhere in its deliberations that which is obvi-‐‑
ous on the face of a statute”). It takes unequivocal language
to waive the national government’s sovereign immunity,
Department of Energy v. Ohio, 503 U.S. 607, 615 (1992), but this
means unequivocal language in a statute, not in a committee
report.
The FCRA says that courts may award punitive damages
for willful violations. 15 U.S.C. §1681n(a)(2). According to
the government, this shows that §1681n can’t apply to it, no
matter what §1681a(b) says, for there is a tradition that the
United States is not subject to punitive damages. (The Feder-‐‑
al Tort Claims Act, for example, forbids them. 28 U.S.C.
§2674 ¶1.) A tradition differs from a rule of law, however.
Congress can authorize punitive awards against the United
States. If the interaction of §1681a(b) and §1681n(a)(2) creates
excessive liability—which it won’t if federal officers obey the
statute—then the solution is an amendment, not judicial re-‐‑
writing of a pellucid definitional clause. See, e.g., Michigan v.
Bay Mills Indian Community, 134 S. Ct. 2024, 2033–34 (2014).
The government also observes that three provisions of
the FCRA expose “persons” to criminal penalties, which in
principle could include state prosecutions. 15 U.S.C.
§§ 1681n, 1681p, 1681s. The United States expresses incredu-‐‑
lity that Congress could have authorized state prosecutions
of federal employees. But why not? The idea that a criminal
prosecution of a federal employee alleged to have deliberate-‐‑
No. 13-‐‑1602 5
ly violated a federal statute might begin in state court is not
so outlandish that we should read §1681a(b) to mean some-‐‑
thing other than what it says. Federal employees’ protection
is the right to remove and have the adjudication in federal
court, see 28 U.S.C. §1442(a)(1), not a rule of construction
that eliminates the possibility of prosecution altogether.
The United States has one final argument about the scope
of §1681a(b). It observes that the definition treats states and
the national government identically. Its brief maintains that
Congress lacks the authority to subject states to damages
through statutes enacted under the Commerce Clause, see
Seminole Tribe v. Florida, 517 U.S. 44 (1996), and asks us to in-‐‑
fer that, since states need not pay damages, the national
government need not do so either.
The premise of this argument is not entirely correct.
States may not be at risk of damages in private litigation, but
the United States may enforce the FCRA against the states
and collect damages. See Monaco v. Mississippi, 292 U.S. 313,
328–29 (1934) (collecting authority). No state has sovereign
immunity vis-‐‑à-‐‑vis the national government. And if we are
to consider how §1681a(b) treats other sovereigns, what of
foreign governments, which are “persons” under that stat-‐‑
ute? Foreign governments that engage in commerce in the
United States cannot invoke immunity under the Foreign
Sovereign Immunities Act. See generally Argentina v. NML
Capital, Ltd., 134 S. Ct. 2250 (2014). If the definition in
§1681a(b) exposes foreign nations to damages for commer-‐‑
cial activity, why not the United States?
What is more, the conclusion of this argument would not
follow if the premise had been correct. No rule of law estab-‐‑
lishes that, if states cannot be liable, then the United States is
6 No. 13-‐‑1602
not liable. The Religious Freedom Restoration Act illustrates
the point. It forbids all governmental bodies to impose sub-‐‑
stantial burdens on religious exercise, unless those burdens
are justified by a compelling governmental interest. 42
U.S.C. §2000bb–1. City of Boerne v. Flores, 521 U.S. 507 (1997),
holds that Congress lacks authority under §5 of the Four-‐‑
teenth Amendment to subject states to that substantive rule.
If the argument the United States makes here were sound,
units of local government and the United States today would
be free of RFRA’s obligations. But since Boerne the Supreme
Court has continued to apply the statute to the United States.
See, e.g., Burwell v. Hobby Lobby Stores, Inc., No. 13–354 (U.S.
June 30, 2014); Gonzales v. O Centro Espírita Beneficente União
do Vegetal, 546 U.S. 418 (2006). These decisions show that
federal statutes can apply to the national government even if
principles of sovereign immunity prevent awards of damag-‐‑
es against the states. Congress can give consent for itself
even though not for the states.
Our conclusion that §1681a(b) waives the United States’
immunity from damages for violations of the FCRA brings
us to the question whether Bormes has a good claim. The
United States, which prevailed in the district court on a sov-‐‑
ereign-‐‑immunity defense, 638 F. Supp. 2d 958 (N.D. Ill.
2009), has asked us to affirm on the merits if we rule against
it on sovereign immunity. It is entitled to make such an ar-‐‑
gument in defense of its judgment without the need for a
cross-‐‑appeal. Massachusetts Mutual Insurance Co. v. Ludwig,
426 U.S. 479 (1976).
Bormes relies on 15 U.S.C. §1681c(g)(1), which provides
that “no person that accepts credit cards or debit cards for
the transaction of business shall print more than the last 5
No. 13-‐‑1602 7
digits of the card number or the expiration date upon any
receipt provided to the cardholder at the point of the sale or
transaction.” (The exception in §1681c(g)(2) for transactions
completed by handwriting or an imprint does not apply.)
Bormes reads this statute to forbid the display of both the
last few digits (pay.gov used four rather than five) and the
expiration date in the same document. We may assume that
this is correct. But the United States maintains that it did not
“print” anything—instead it sent Bormes an email, which
was electronic. If the email was printed after receipt, that
was Bormes’s doing rather than its own, the government
maintains. Moreover, whatever printing took place was not
“provided … at the point of the sale or transaction.” Bormes
transacted with a web site, and the receipt was sent to his
email account, from which he could obtain access in multiple
ways over the Internet.
This conclusion has the support of Shlahtichman v. 1-‐‑800
Contacts, Inc., 615 F.3d 794 (7th Cir. 2010). Bormes concedes
that Shlahtichman is dispositive against him but asks us to
overrule it. Because the only other appellate decision on the
subject has agreed with Shlahtichman, see Simonoff v. Expedia,
Inc., 643 F.3d 1202, 1207–10 (9th Cir. 2011), overruling would
create a conflict among the circuits. Nonetheless, Bormes
maintains, reading §1681c(g)(1) as Shlahtichman did makes
the statute substantially inapplicable to transactions on the
Internet, and he thinks that we should avoid that conse-‐‑
quence in order to achieve more of what he sees as the legis-‐‑
lative goal.
Having persuaded us to stick with the text of §1681a(b)
and reject the United States’ arguments about good public
policy, Bormes can hardly expect us to do an about face and
8 No. 13-‐‑1602
modify the text of §1681c(g)(1) in favor of his own argu-‐‑
ments about good public policy. The text is what it is, no
matter which side benefits. We said in van Straaten v. Shell
Oil Products Co., 678 F.3d 486 (7th Cir. 2012), that §1681c(g)
would be applied as written, without contraction or en-‐‑
largement based on anyone’s notions of wise policy.
To the extent policy matters, we don’t get Bormes’s ar-‐‑
gument. The concern underlying §1681c(g)(1), as we ex-‐‑
plained in van Straaten, is that receipts printed at the point of
sale may be thrown away on the spot. If those receipts con-‐‑
tain the full name, card number, and expiration date of the
credit card, they may facilitate identity theft. But if nothing
is printed at the point of sale, the risk is substantially less.
(Indeed, without most of the credit card’s 15 or 16 digits, the
risk is zero; adding the expiration date to the last four num-‐‑
bers does not pose a risk.) A consumer might print an email
at home, then throw it away, but few people search residen-‐‑
tial garbage in quest of credit-‐‑card numbers; before
§1681c(g) the pickings were much better in stores.
As we have said, however, arguments pro and con about
wise policy are irrelevant. The statute as written applies to
receipts “printed … at the point of the sale or transaction.”
The email receipt that Bormes received meets neither re-‐‑
quirement. So although the United States has waived its
immunity against damages actions of this kind, it did not
violate the statute and prevails on the merits.
AFFIRMED