United States v. Bormes (11-192)

argument 11-192

United States v. Bormes

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the United States v. Bormes case and why is it before the Supreme Court?

John G. Roberts 0:01

We'll now hear argument in Case 11-192, United States v. Bormas. Mr. Srinivasan.

Neal K. Katyal 0:08

Thank you, Mr. Chief Justice, and may it please the Court. This Court's decisions have long established that Congress will be deemed to have waived the government's sovereign immunity only if it unequivocally expresses its intent to do so. Under

Elena Kagan 0:19

your view, is there any situation today where the Tucker Act would be applied to a statute? Because if we start with the statute, which always seems to be where you're pointing us to, and we're only looking for a clear waiver of sovereign immunity, then there'll never be another Tucker Act action in the future.

Neal K. Katyal 0:49

There are such statutes, Justice Sotomayor. Of course, this —

Elena Kagan 0:51

What would they look like to be able to get around our clear statement rule?

Neal K. Katyal 0:56

Well, they would have two features consistent with this Court's decisions that have found the Tucker Act to be applicable — One would be that the statute does not contain its own remedial mechanism, and the second would be that the substantive obligations in the statute run against the United States and the United States alone. And an example of that type of statute is the one that this Court found to be supported by the Tucker Act in White Mountain Apache Tribe or in Mitchell II. Those are the kinds of statutes as to which I think the Tucker Act was meant to apply.

Elena Kagan 1:23

So basically, I'm not sure why we're even addressing — the issue of Tucker Act jurisdiction, we should have really just been briefing the issue of whether the statute at issue here waives sovereign immunity.

Neal K. Katyal 1:36

Because that

Elena Kagan 1:37

becomes, to you, the operative question.

Neal K. Katyal 1:39

It does when you're dealing with a statute like this. And, of course, the reason that we're addressing Tucker Act immunity is is because Tucker Act immunity is the basis for jurisdiction in this case, according to the reasoning of the Federal Circuit. And the problem with the reasoning of the Federal Circuit is it allows the litigant to readily circumvent the Court's strict test for sovereign immunity waivers by the straightforward device of adding the Tucker Act as a jurisdictional basis in the complaint. And it's not at all clear why a plaintiff couldn't do that for any claim under any statute, including a statute as to which this Court would have already concluded that the unequivocal expression test, the standard test applied for waivers of sovereign immunity, was not satisfied.

Neal K. Katyal 2:16

And to give the Court a concrete example of this, in Lane v. Pena, the Court concluded that for Rehabilitation Act claims under Section 504 of the Rehabilitation Act, there was no unequivocal expression of an intent to waive sovereign immunity by Congress for purposes of damages claims. And therefore, a damages claim can't be brought against the United States under Section 504. But under the Federal Circuit's approach, there's no apparent reason why a plaintiff couldn't bring a damages claim against the United States for a violation of Section 504 of the Rehabilitation Act by adding the Tucker Act to the jurisdictional basis in the complaint. Because if the plaintiff were able to do that, notwithstanding this Court's decision in Lane v. Pena, the result would be that the plaintiff could say, the Federal Circuit, you should look at the statute and ask the question whether it can be fairly interpreted to mandate the payment of money by the government.

Neal K. Katyal 3:05

There's no unequivocal expression of an intentional way of sovereign immunity. But that doesn't detract from the ability of the Federal Circuit to conclude that the statute nonetheless can be fairly interpreted to mandate the payment of money. Now, of course, if that issue were to arise, we would make the argument that the statute can't be so read. But the possibility that a plaintiff could make that argument, notwithstanding this Court's decision in Lane v. Pena, we think reinforces the need to conclude that the Tucker Act can't be applied in the way that the Federal Circuit sought to apply it here.

Elena Kagan 3:34

Could I ask you — sorry. I was going to ask, following up on my question.