Stephanie Daniel v. National Park Service

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHANIE DANIEL, on behalf of No. 16-35689

herself and all others similarly

situated, D.C. No.

Plaintiff-Appellant, 1:16-cv-00018-

SPW

v.

NATIONAL PARK SERVICE; DOES, 1– OPINION

10,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Argued and Submitted December 5, 2017

Seattle, Washington

Filed May 30, 2018

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Morgan Christen, Circuit Judges.

Opinion by Judge McKeown

2 DANIEL V. NAT’L PARK SERVICE

SUMMARY*

Fair Credit Reporting Act

The panel affirmed the district court’s dismissal of a suit

brought pursuant to the Fair Credit Reporting Act, 15 U.S.C.

§ 1681c(g), against the National Park Service alleging that

the Service violated the Act by failing to redact plaintiff’s

debit card expiration date from her purchase receipt.

Plaintiff alleged that when she purchased an entrance

pass to Yellowstone National Park, the Park Service printed

a receipt bearing her full debit card expiration date.

According to plaintiff, the Park Service violated the Act’s

prohibition that “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.” 15 U.S.C. § 1681c(g) (emphases added).

Plaintiff alleged that after the Yellowstone transaction, her

debit card was used fraudulently and she suffered damages

from her stolen identity. She also alleged that the fraudule nt

use of her debit card was caused in part by the inclusion of

the card’s expiration date on her Yellowstone receipt.

The panel held as an initial matter, that plaintiff lacked

standing because her complaint made only conclusory

allegations that her stolen identity was traceable to the Park

Service’s alleged violation of the Act. The panel further held

that giving plaintiff leave to amend the complaint would be

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

DANIEL V. NAT’L PARK SERVICE 3

futile because the Act does not waive the federal

government’s sovereign immunity from plaintiff’s suit.

COUNSEL

Timothy M. Bechtold (argued), Bechtold Law Firm PLLC,

Missoula, Montana, for Plaintiff-Appellant.

Mark B. Stern (argued) and Henry C. Whitaker, Appellate

Staff; Michael W. Cotter, United States Attorney; Chad A.

Readler, Acting Assistant Attorney General; Civil Divis io n,

United States Department of Justice, Washington, D.C.; for

Defendant-Appellee.

OPINION

McKEOWN, Circuit Judge:

This appeal is one of many in which plaintiffs seek

redress for violation of a federal law that requires redaction

of certain credit and debit card information on printed

receipts. Stephanie Daniel alleges that identity thieves made

fraudulent charges on her debit card at some unspecified

time after she visited Yellowstone National Park. Daniel

sued the National Park Service for issuing a receipt showing

her debit card’s expiration date, a violation of the Fair Credit

Reporting Act (“FCRA”). 15 U.S.C. § 1681c(g).

We affirm the district court’s dismissal of Daniel’s suit.

As an initial matter, Daniel lacks standing because her

complaint makes only conclusory allegations that her stolen

identity was traceable to the Park Service’s alleged FCRA

violation. Nonetheless, giving Daniel leave to amend the

4 DANIEL V. NAT’L PARK SERVICE

complaint would be futile because the FCRA does not waive

the federal government’s sovereign immunity from Daniel’s

suit.

Background

When Daniel purchased an entrance pass to Yellowsto ne

National Park, the National Park Service (the “Park

Service”) printed a receipt bearing her full debit card

expiration date. According to Daniel, the Park Service

violated the FCRA’s prohibition that “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.” 15 U.S.C.

§ 1681c(g) (emphases added). The receipt otherwise

complied with the FCRA’s card-number redaction

requirements—it did not print more than the last five digits

of the debit card number.

Daniel sued the Park Service, on behalf of herself and a

putative class, under one of the FCRA’s enforceme nt

provisions: “Any person who willfully fails to comply with

[the FCRA] with respect to any consumer is liable to that

consumer” for statutory damages of between $100 and

$1,000 per violation or “any actual damages sustained by the

consumer,” costs and attorneys’ fees, and potential punitive

damages. Id. § 1681n. Daniel claimed that after the

Yellowstone transaction, her debit card was used

fraudulently and she suffered damages from her stolen

identity. She also alleged that the fraudulent use of her debit

card was caused in part by the inclusion of the card’s

expiration date on her Yellowstone receipt.

The district court granted the Park Service’s motion to

dismiss on the grounds that the FCRA does not waive the

DANIEL V. NAT’L PARK SERVICE 5

U.S. government’s sovereign immunity. The court

concluded that “including the United States as a ‘person’

every time the term is used in the FCRA would lead to

inconsistent usage and potentially absurd results.”

Accordingly, Congress did not “speak unequivocally” as is

required to waive sovereign immunity. 1

Analysis

Both Article III standing and sovereign immunity are

threshold jurisdictional issues that we review de novo. See

Raines v. Byrd, 521 U.S. 811, 818 (1997); FDIC v. Meyer,

510 U.S. 471, 475 (1994). In this instance, we analyze both

issues because dismissal of the case on standing grounds

leaves open whether Daniel could amend her complaint to

satisfy standing requirements. That route is foreclosed,

however, because a suit dismissed on sovereign immunity

grounds cannot be salvaged. See United States v. Mitchell,

463 U.S. 206, 212 (1983) (“It is axiomatic that the United

States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction. ”).

Daniel’s complaint fails on both fronts.

I. STANDING

To meet the constitutional threshold of Article III

standing, Daniel must allege that she “(1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct

of [the Park Service], and (3) that is likely to be redressed by

a favorable judicial decision.” Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016). Although Daniel alleged a

1 The district court did not address the second issue raised in the

Park Service’s motion—whether Daniel pled sufficient facts to maintain

an action under the FCRA.

6 DANIEL V. NAT’L PARK SERVICE

sufficient injury of identity theft, she failed to allege that her

injury was “fairly traceable” to the Park Service’s issuance

of the receipt. Without this link, Daniel’s suit must be

dismissed.

A. DANIEL ALLEGED A CONCRETE INJURY OF

IDENTITY THEFT

We recently considered whether “receiving an overly

revealing credit card receipt—unseen by others and unused

by identity thieves—[is] a sufficient injury to confer Article

III standing.” See Bassett v. ABM Parking Servs., Inc.,

883 F.3d 776, 777 (9th Cir. 2018). Bassett’s theory of

injury—an “exposure” to identity theft “caused by [the

issuer’s] printing of his credit card expiration date on a

receipt that he alone viewed”—did not “have ‘a close

relationship to a harm that has traditionally been regarded as

providing a basis for a lawsuit in English or American

courts.’” Id. (quoting Spokeo, 136 S. Ct. at 1549). Nor did

Congress “elevat[e] to the status of legally cognizab le

injuries concrete, de facto injuries that were previously

inadequate in law.” Id. at 781–82 (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 578 (1992)). It was no

stretch to conclude that a receipt showing the credit card

expiration date, by itself, was not a concrete injury. Id. at

780.

In contrast to Bassett, Daniel alleged a concrete,

particularized injury by claiming that after the Yellowsto ne

transaction, her debit card was used fraudulently and she

suffered damages from her stolen identity. Identity theft and

fraudulent charges are concrete harms particularized to

Daniel and establish a sufficient injury at the pleading stage.

See generally Spokeo, 136 S. Ct. at 1548–50; In re

Zappos.com, Inc., 888 F.3d 1020, 1028 (9th Cir. 2018)

(holding that specific allegations of hackers accessing a

DANIEL V. NAT’L PARK SERVICE 7

plaintiff’s personal information that “could be used to help

commit identity fraud or identity theft” are a suffic ie nt

injury).

B. DANIEL’S IDENTITY THEFT IS NOT FAIRLY

TRACEABLE TO THE PARK SERVICE’S RECEIPT

The trickier question is whether the fraudulent charges

on Daniel’s debit card and her stolen identity are “fair ly

traceable” to the Park Service’s printing of a receipt showing

the expiration date of that debit card. At the pleading stage,

Daniel does not need to prove proximate causation. See

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

134 S. Ct. 1377, 1391 n.6 (2014). But she still bears the

burden of “demonstrating that her injury-in- fact is . . . fairly

traceable to the challenged action”—here, the Park Service’s

issuance of the receipt. Davidson v. Kimberly-Clark Corp.,

— F.3d —, 2018 WL 2169784, at *7 (9th Cir. May 9, 2018)

(citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,

149 (2010)). Daniel’s threadbare allegations fall short of

demonstrating that link.

Daniel’s complaint contains only two generic statements

that attempt to draw a connection between the receipt and

her later identity theft. She alleged: “After this debit card

transaction, Plaintiff Daniel’s personal debit card was used

fraudulently and she suffered damages from the stolen

identity.” She went on to claim: “Based on information and

belief, the fraudulent use of Plaintiff Daniel’s debit card was

caused in part by the inclusion of the expiration date of her

debit card on the receipt of her purchase from Defendant

National Park Service.”

The latter statement is a legal conclusion, and is therefore

not entitled to an assumption of truth at the pleading stage.

See Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009). The

8 DANIEL V. NAT’L PARK SERVICE

former statement presents no specific factual allegatio ns

plausibly tying the Park Service receipt to her identity theft.

These naked assertions fail our edict that a plaintiff may not

“rely on a bare legal conclusion to assert injury- in- fact, or

engage in an ingenious academic exercise in the conceivable

to explain how defendants’ actions caused his injury.” Maya

v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)

(internal quotation marks and footnotes omitted).

Like Bassett, Daniel “did not allege that another copy of

the receipt existed, that h[er] receipt was lost or stolen, . . .

or even that another person apart from h[er] lawyers viewed

the receipt.” Bassett, 883 F.3d at 783. 2 Merely asserting that

a theft occurred at an unspecified time “after” the debit card

transaction—absent any other details—does not connect the

dots. Even crediting that temporal allegation as true, as we

must at this stage, Daniel alleged no link between the receipt

and the identity theft. See Syed v. M-I, LLC, 853 F.3d 492,

499 n.4 (9th Cir. 2017); Maya, 658 F.3d at 1068–73.

We are left with an allegation of a “bare procedural

violation” of the FCRA and a generic allegation of later harm

that is “divorced from” that violation. See Spokeo, 136 S. Ct.

at 1549; Bassett, 883 F.3d at 781, 783. Because the “fair ly

traceable” leg of standing is no less essential to the

“irreducible constitutional minimum” of standing than the

injury leg, Daniel failed to adequately allege standing.

Spokeo, 136 S. Ct. at 1547 (quoting Lujan, 504 U.S. at 560).

2 Daniel alleged that the Park Service printed a merchant copy of the

receipt. But since the merchant copy did not contain the card’s

expiration date, such a receipt does not make Daniel’s stolen identity any

more “traceable” to the Park Service’s violation of the FCRA.

DANIEL V. NAT’L PARK SERVICE 9

Our conclusion does not alter the longstanding princip le

that “the causation and redressability requirements are

relaxed” in standing analysis where a plaintiff’s claims “rest

on a procedural injury.” Ctr. for Biological Diversity v.

Mattis, 868 F.3d 803, 817 (9th Cir. 2017) (quoting

California ex rel. Imperial Cty. Air Pollution Control Dist.

v. U.S. Dep’t of the Interior, 767 F.3d 781, 790 (9th Cir.

2014)). Our usual rule rests on the assumption that by

“providing a cause of action” for violations of a statute,

“Congress has recognized the harm such violations cause,

thereby articulating a ‘chain[] of causation that will give rise

to a case or controversy.’” Syed, 853 F.3d at 499 (quoting

Spokeo, 136 S. Ct. at 1549). Such an assumption is

unwarranted under these unique circumstances.

The FCRA presents the exceedingly rare case where

Congress created a cause of action for violations of a statute,

but also concluded that a chain of causation does not cause

harm. The FCRA prohibits any “person” from printing a

receipt with a card’s expiration date, and holds liable “[a]ny

person who willfully fails to comply with” that requireme nt.

15 U.S.C. §§ 1681c(g), 1681n. On the surface, the law is

“an effort to combat identity theft.” Bateman v. Am. Multi-

Cinema, Inc., 623 F.3d 708, 717 (9th Cir. 2010).

Yet after passing the expiration-date requireme nt,

Congress enacted the Credit and Debit Card Receipt

Clarification Act, Pub. L. No. 110-241, 122 Stat. 1565

(2008) (the “Clarification Act”). That statute includes

express congressional findings that “[e]xperts in the field

agree that proper truncation of the card number, by itself as

required by the [FCRA], regardless of the inclusion of the

expiration date, prevents a potential fraudster from

perpetrating identity theft or credit card fraud.” 122 Stat. at

1565 (emphasis added). Accordingly, the Clarification Act

10 DANIEL V. NAT’L PARK SERVICE

set a temporary safe harbor for merchants: “any person who

printed an expiration date on any receipt . . . between

December 4, 2004, and [June 3, 2008],” but otherwise

complied with the card number truncation requirements, did

not willfully violate the FCRA. Id. at 1566. The

Clarification Act left the FCRA untouched for receipts

printed after June 3, 2008, like Daniel’s. Id.

The congressional ambivalence expressed in the

statutory prohibition and the Clarification Act produces a

peculiar outcome. On the one hand, we have a cause of

action to remedy statutory violations that was intended to

“combat identity theft,” and we have vague allegations of

“identity theft.” On the other hand, we have an express

congressional finding that receipts like Daniel’s “prevent”

identity theft and credit card fraud, they do not cause injury.

“On balance, congressional judgment weighs against”

standing in this case, just as in Bassett. 883 F.3d at 782.

The result here does not foreclose future plaintiffs from

adequately alleging standing for FCRA violations, even

those involving expiration dates on receipts. But such

plaintiffs shoulder the burden of meeting each of the

elements for standing, including the “fairly traceable”

requirements.

In the ordinary appeal, we might consider whether

amendment of the complaint could cure the defects in the

standing allegations. E.g., Maya, 658 F.3d at 1072.

However, we do not reach that question because Daniel’s

suit is also barred by sovereign immunity. Any amendment

would be futile. See Mitchell, 463 U.S. at 212.

DANIEL V. NAT’L PARK SERVICE 11

II. SOVEREIGN IMMUNITY

Sovereign immunity shields the United States from suit

“absent a consent to be sued that is ‘unequivoca lly

expressed’” in the text of a relevant statute. United States v.

Bormes, 568 U.S. 6, 9–10 (2012) (quoting United States v.

Nordic Village, Inc., 503 U.S. 30, 33–34 (1992)). To

maintain a suit against the government for money damages,

“the waiver of sovereign immunity must extend

unambiguously to such monetary claims,” thus foreclosing

an implied waiver. Lane v. Pena, 518 U.S. 187, 192 (1996).

The clear textual waiver rule “ensures that Congress has

specifically considered . . . sovereign immunity and has

intentionally legislated on the matter.” Sossamon v. Texas,

563 U.S. 277, 290 (2011). 3 It also “ensure[s] Congress does

not, by broad or general language, legislate on a sensitive

topic inadvertently or without due deliberation.” Id. at 291.

Key here, “[a]ny ambiguities in the statutory language are to

be construed in favor of immunity.” FAA v. Cooper,

566 U.S. 284, 290 (2012) (emphasis added).

A. THE FCRA DOES NOT CLEARLY WAIVE

IMMUNITY FOR DANIEL’S SUIT

We begin with the principle that our duty is “to construe

statutes, not isolated provisions.” King v. Burwell, 135 S. Ct.

2480, 2489 (2015). We thus “look to the provisions of the

whole law” to determine whether the FCRA’s “any person”

language unambiguously applies to the federal governme nt.

3 Although Sossamon concerns state sovereign immunity, the Court

acknowledged that it was applying federal sovereign immunit y

principles. 563 U.S. at 285 n.4.

12 DANIEL V. NAT’L PARK SERVICE

Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct.

1002, 1010 (2017).

The FCRA broadly defines a “person” as “any

individual, partnership, corporation, trust, estate,

cooperative, association, government or governmental

subdivision or agency, or other entity.” 15 U.S.C.

§ 1681a(b) (emphasis added). The National Park Service is

an agency of the United States. Hence, the sovereign

immunity question boils down to whether the inclusion of

“governmental . . . agency” in the FCRA’s definition of

“person” constitutes an unequivocal waiver of the federal

government’s immunity from money damages and subjects

the United States to the various provisions directed at “any

person” who violates the law. Construing the FCRA as a

whole—including the different contexts in which “person”

is used, and the inclusion of a clear waiver of sovereign

immunity in an unrelated provision—we view the statute as

ambiguous with respect to whether Congress waived

immunity for Daniel’s suit.

1. The Many Appearances of “Person” in the

FCRA

The word “person” appears throughout the FCRA, as

amended by the Fair and Accurate Credit Transactions Act

(“FACTA”). 4 The statutory proscription at issue establis hes

that “no person that accepts credit cards or debit cards for

the transaction of business shall print . . . the expiration date

upon any receipt provided to the cardholder at the point of

4 We use “FCRA” where “FCRA” or “FACTA” could be used

interchangeably.

DANIEL V. NAT’L PARK SERVICE 13

the sale or transaction.” 15 U.S.C. § 1681c(g) (emphasis

added).

The FCRA also contains a number of enforceme nt

provisions directed at “any person” who violates the law.

Daniel invoked a citizen suit provision that “[a]ny person

who willfully fails to comply with [the FCRA] with respect

to any consumer is liable to that consumer” for statutory

damages of between $100 and $1,000 per violation or “any

actual damages sustained by the consumer,” costs and

attorneys’ fees, and potential punitive damages. Id. § 1681n.

Similarly, “[a]ny person who is negligent in failing to

comply with [the FCRA] with respect to any consumer is

liable to that consumer” for “any actual damages,” costs and

attorneys’ fees. Id. § 1681o. “Any person who knowingly

and willfully obtains information on a consumer from a

consumer reporting agency under false pretenses shall be

fined . . . , imprisoned for not more than 2 years, or both.”

Id. § 1681q. And, “any person” who violates the FCRA is

subject to enforcement actions by the Federal Trade

Commission, the Consumer Financial Protection Bureau,

and state governments. Id. § 1681s (all emphases added).

2. Reading “the United States” Into Every

Iteration of “Person” Leads to Implausible

Results

Distilling a clear waiver of sovereign immunity in the

FCRA would require us to treat “the United States” as a

“person” in each provision. Substituting the sovereign for

each of the FCRA’s iterations of “person” leads to

implausible results, however, and underscores that Congress

did not intend for the law’s enforcement provisions to apply

against the federal government. Notwithstanding the

FCRA’s broad statutory definition, we note that in other

contexts, courts have been “reluctant to read ‘person’ to

14 DANIEL V. NAT’L PARK SERVICE

mean the sovereign where, as here, such a reading is

decidedly awkward.” Int’l Primate Prot. League v. Adm’rs

of Tulane Educ. Fund, 500 U.S. 72, 83 (1991).

Most importantly, treating the United States as a

“person” across the FCRA’s enforcement provisions would

subject the United States to criminal penalties. Because

“[a]ny person who knowingly and willfully obtains

information on a consumer from a consumer reporting

agency under false pretenses shall be fined . . . , impriso ned

for not more than 2 years, or both,” such an interpretatio n

would subject the sovereign to incarceration. 15 U.S.C.

§ 1681q. As the Supreme Court observed in construing the

use of “person” in the Sherman Antitrust Act:

The connotation of a term in one portion of

an Act may often be clarified by reference to

its use in others. The word “person” is used

in several sections other than [this one]. In

[the other sections], the phrase designating

those liable criminally is “every person who

shall” etc. In each instance it is obvious that

. . . the term “person” . . . cannot embrace the

United States.

United States v. Cooper Corp., 312 U.S. 600, 606–07

(1941); see also U.S. Postal Serv. v. Flamingo Indus. (USA)

Ltd., 540 U.S. 736, 744–45 (2004) (reinforcing that the

United States is not a “person” in the Sherman Act because

“if the definition of ‘person’ included the United States, then

the Government would be exposed to liability as an antitrust

defendant, a result Congress could not have intended”).

It may not be “outlandish” for Congress to subject

federal employees to criminal prosecution. See Bormes v.

United States, 759 F.3d 793, 796 (7th Cir. 2014). But the

DANIEL V. NAT’L PARK SERVICE 15

statutory definition would read “the United States” into the

FCRA’s enforcement provisions, not “federal employees.”

We have recognized the difference between imposing

criminal penalties on individuals and government agencies;

the latter is “patently absurd.” Al-Haramain Islamic Found.,

Inc. v. Obama, 705 F.3d 845, 854 (9th Cir. 2012) (quoting

United States v. Singleton, 165 F.3d 1297, 1299–1300 (10th

Cir. 1999)). Because authorizing criminal penalties against

governments rather than individuals would be

“unprecedented,” it is highly unlikely that Congress

intended to do so obliquely with a broad definition of

“person.” Id.

Ascribing personhood to the federal government also

would authorize the Federal Trade Commission, the

Consumer Financial Protection Bureau, and state

governments to launch enforcement actions against the

United States for violations of the FCRA. See 15 U.S.C.

§§ 1681s(a)(2)(A), 1681s(c)(1)(B). Since Daniel does not

identify any other federal statute that applies such an

enforcement scheme against the United States, we doubt that

Congress meant to build a novel enforcement regime without

doing so explicitly. 5 The spectre of the Federal Trade

5 The closest analog we found—and not just because the statute

bears a similar acronym—is the Resource Conservation and Recovery

Act (“RCRA”), 42 U.S.C. § 6901 et seq. Like the FCRA, RCRA

provides for broad remedies against “any person” who violates the Act,

authorizes citizen suits against “any person” who violates the Act, and

deputizes the Environmental Protection Agency (“EPA”) to enforce

compliance orders against “any person” who violates the Act. Id.

§§ 6928, 6972.

The similarities end there. Although RCRA’s statutory definition of

“person” explicitly includes “the United States,” id. § 6903(15), RCRA

also contains a separate section specifically directed at violations of the

16 DANIEL V. NAT’L PARK SERVICE

Commission suing the United States, aka itself, to “recover

a civil penalty” from itself makes little sense. See id.

§ 1681s.

Finally, regarding the United States as a “person” would

license substantial potential punitive damages against the

federal government when Congress rarely does so. See

15 U.S.C. § 1681n (levying potential punitive damages on

“any person” who willfully violates the Act). In waiving the

sovereign immunity of the United States for certain tortious

acts, the Federal Tort Claims Act prohibits assessment of

punitive damages against the United States. See 28 U.S.C.

§ 2674. Hence, a finding of waiver of sovereign immunity

to authorize Daniel’s suit would require us to believe that

Congress chose to prohibit punitive damages against the

United States for tortiously killing people, see id., but

allowed punitive damages on the government for printing

overly revealing debit card receipts.

There is a “presumption against imposition of punitive

damages on governmental entities.” Vt. Agency of Nat. Res.

v. U.S. ex rel. Stevens, 529 U.S. 765, 785 (2000). Given the

presumption, Congress must be explicit in licensing punitive

damages against the sovereign, as it was in § 1681u(j),

Act by the federal government and provides a clarion waiver of

sovereign immunity. See id. § 6961(a) (“Each department, agency, and

instrumentality of . . . the Federal Government . . . shall be subject to . . .

such sanctions as may be imposed by a court to enforce such relief . . .

in the same manner, and to the same extent, as any person is subject to

such requirements . . . . The United States hereby expressly waives any

immunity otherwise applicable to the United States . . . .). Even as

RCRA authorizes EPA enforcement actions against other federal

agencies, it establishes a more collaborative procedure that recognizes

the unique posture of one agency punishing another for violations of

federal law: the EPA and the violating agency must “confer” before an

enforcement order becomes final. Id. § 6961(b).

DANIEL V. NAT’L PARK SERVICE 17

discussed below. The FCRA’s assessment of potential

punitive damages against “any person” who “willfully fails

to comply with” the law is not so lucid. 15 U.S.C. § 1681n.

3. Section 1681u(j)’s Explicit Waiver of

Sovereign Immunity

Equating “the United States” with a “person” in multip le

sections of the FCRA also conflicts with a very clear waiver

of sovereign immunity elsewhere in the statute. In

§ 1681u(j), the FCRA provides that “[a]ny agency or

department of the United States obtaining or disclosing any

consumer reports, records, or information contained therein

in violation of this section is liable to the consumer” for

statutory and actual damages, and, “if the violation is found

to have been willful or intentional, such punitive damages as

a court may allow.”6 15 U.S.C. § 1681u(j). As the district

court observed, “[t]he fact that Congress explicitly named

the United States in the remedial provisions found at

§ 1681u(j) but not in the remedial provisions found at

§§ 1681n and 1681o demonstrates the equivocal nature of

any purported waiver of sovereign immunity” in the latter

sections. Congress enacted the explicit waiver of sovereign

immunity in § 1681u(j) less than one year before Congress

expanded liability to “person[s]” under the FCRA. See

Intelligence Authorization Act for Fiscal Year 1996, Pub. L.

No. 104-93, tit. VI, § 601, 109 Stat. 976–77. Because

Congress knew how to explicitly waive sovereign immunity

in the FCRA, it could have used that same language when

6Assessment of punitive damages in this section cuts both ways. It

demonstrates that Congress was willing to impose punitive damages on

the United States in the FCRA. At the same time, it shows that when

Congress intends to impose this rare liability on the United States,

Congress does so explicitly.

18 DANIEL V. NAT’L PARK SERVICE

enacting subsequent enforcement provisions. That Congress

subjected “person[s]” to liability in those later

amendments—not the United States itself or any of its

departments or agencies—is telling.

Of course, § 1681u concerns disclosures of informa tio n

by the Federal Bureau of Investigation and other federal

agencies involved in counterintelligence investigatio ns.

While the section’s limited focus on federal agencies might

explain the difference in statutory language, § 1681u clouds

whether the remedial provisions at §§ 1681o and 1681n

extend “unambiguously” to monetary claims against the

United States. See Ordonez v. United States, 680 F.3d 1135,

1138 (9th Cir. 2012) (quoting Lane, 518 U.S. at 192). We

view the comparison to § 1681u as particularly instructive

because “it is useful to benchmark the statutory langua ge

against other explicit waivers of sovereign immunity” when

determining whether an unequivocal waiver of sovereign

immunity exists. Al-Haramain, 705 F.3d at 851.

4. The FCRA’s Ambiguity Compared with Clear

Waivers of Sovereign Immunity

Further to that point, other citizen suit provisions that

waive sovereign immunity do so much more explicitly. See,

e.g., 33 U.S.C. § 1365 (the “Clean Water Act”) (“any citizen

may commence a civil action on his own behalf . . . against

any person (including (i) the United States, and (ii) any other

governmental instrumentality or agency . . . )”); 42 U.S.C.

§ 6972 (RCRA) (“any person may commence a civil action

on his own behalf . . . against any person, including the

United States and any other governmental instrumentality or

DANIEL V. NAT’L PARK SERVICE 19

agency, . . .”). 7 Although Congress need not use “magic

words” to waive sovereign immunity, see Cooper, 566 U.S.

at 290, most other waivers of sovereign immunity

specifically mention the “United States.” See Al-Haramain,

705 F.3d at 851 (collecting examples of waivers). As we

have stated, “contrasted against other provisions deemed

sufficient to invoke waiver, the lack of an explicit waiver . . .

is stark, permitting suit only against a ‘person,’ without

listing the ‘United States.’” Id. at 852.

5. Daniel’s Interpretation of “Person”

Overreads the Statute

Glossing over the many statutory indicators to the

contrary, Daniel seeks to identify a waiver by focusing

exclusively on the FCRA’s definition of “person.” Because

the Park Service is a “governmental . . . agency”—her theory

goes—the Park Service must be a “person” that is liable to

7 The definition of “person” in the Clean Water Act more clearly

excludes the United States than does the definition in the FCRA. See

33 U.S.C. § 1362(5) (“The term ‘person’ means an individual,

corporation, partnership, association, State, municipality, commission ,

or political subdivision of a State, or any interstate body.”). The

definition in RCRA, however, expressly includes the United States. See

42 U.S.C. § 6903(15) (“The term ‘person’ means an individual, trust,

firm, joint stock company, corporation (including a government

corporation), partnership, association, State, municipality, commission ,

political subdivision of a State, or any interstate body and shall include

each department, agency, and instrumentality of the United States.”

(emphasis added)). RCRA’s definition of “person” and its explicit

waiver of the United States government’s sovereign immunity suggest

that Congress did not waive sovereign immunity in the FCRA. And if

the comparison between the provisions of RCRA and the Clean Water

Act and those of the FCRA muddies the water, it simply underscores that

Congress knows how to expressly waive immunity when it wants to do

so.

20 DANIEL V. NAT’L PARK SERVICE

Daniel for statutory damages or “any actual damages,”

punitive damages, costs and attorneys’ fees. The Seventh

Circuit embraced this theory in Bormes v. United States,

holding that the definition alone marks “the end of the

inquiry.” 759 F.3d 793, 795 (2014).

We are not convinced by the Seventh Circuit’s

reasoning. 8 Importantly, the United States conceded in

Bormes that it is a “person” for the purpose of the FCRA’s

substantive requirements; the government challenged only

that the FCRA authorizes money damages against it. Id.

The court seized on that concession, reasoning that “if the

United States is a ‘person’ . . . 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.” Id.

Yet the Seventh Circuit’s logic can just as easily be

flipped around. 9 If the United States cannot be a “person”

8 The Seventh Circuit traveled a long and twisted path in reaching

its conclusion. A panel of the court first held that the United States is

subject to suits like this one because of the sovereign immunity waiver

contained in the Tucker Act, 28 U.S.C. § 1346. See Talley v. U.S. Dep’t

of Agric., 595 F.3d 754, 759 (7th Cir. 2010). The court then granted

rehearing en banc, vacated the panel opinion, and affirmed the district

court’s dismissal on sovereign immunity grounds by an equally divided

court. See No. 09-2123, 2010 WL 5887796 (7th Cir. Oct. 1, 2010). Soon

after, another decision endorsing the Tucker Act theory worked its way

to the Supreme Court by way of the U.S. Court of Appeals for the Federal

Circuit, which hears Tucker Act appeals. United States v. Bormes,

568 U.S. 6 (2012). The Supreme Court unanimously rejected the Tucker

Act theory and remanded Bormes to the Seventh Circuit—because the

Federal Circuit no longer had jurisdiction—to consider whether the

remedial provisions of the FCRA contain an unequivocal waiver of

sovereign immunity. Id. at 20.

9

We observe that “identical language may convey varying content

when used in different statutes, sometimes even in different provisions

DANIEL V. NAT’L PARK SERVICE 21

under the criminal provisions of the FCRA, why must the

United States unequivocally be a “person” for the purpose of

the other enforcement provisions? See United States v.

Nosal, 676 F.3d 854, 857–59 (9th Cir. 2012) (en banc)

(observing that “identical words . . . within the same statute

should normally be given the same meaning” and narrowly

construing a term because a broader construction would

substantially “expand the scope of criminal liability”). To

use the Seventh Circuit’s words, “[n]othing in the FCRA

allows the slightest basis for a distinction.” Bormes,

759 F.3d at 795. That is particularly true when the remedies

section also subjects “persons” to punitive damages, and the

United States is rarely prone to sweeping punitive liability.

See 15 U.S.C. § 1681n. The court in Bormes did not address

this important anomaly. Nor did the court consider the clear

waiver of sovereign immunity at § 1681u(j) or the

unparalleled enforcement regime created by its decision.

Even more curious, the Seventh Circuit has since

questioned its own reasoning in Bormes. Notably, the court

refused to expand its holding to effect a waiver of tribal

sovereign immunity in the FCRA. See Meyers v. Oneida

Tribe of Indians of Wis., 836 F.3d 818 (7th Cir. 2016), cert.

denied, 137 S. Ct. 1331 (2017). The court emphasized that

in Bormes, “the government conceded that it was a ‘person’

for purposes of the Act so the court had no reason to engage

in a full analysis of the scope of the term ‘any government.’ ”

Id. at 826. By contrast, the tribal government made no such

concession. Id. Finally grappling with the statutory term,

of the same statute.” See Yates v. United States, 135 S. Ct. 1074, 1082

(2015) (collecting cases). What is more, “Congress is free to waive the

Federal Government’s sovereign immunity against liability without

waiving its immunity from monetary damages awards.” Lane, 518 U.S.

at 196.

22 DANIEL V. NAT’L PARK SERVICE

the court concluded that “any government” is equivocal as

to whether it includes “Indian tribes” even though Indian

tribes are governments:

The district court did not dismiss [Meyers’s]

claim because it concluded that Indian tribes

are not governments. It dismissed his claim

because it could not find a clear, unequivo ca l

statement in FACTA that Congress meant to

abrogate the sovereign immunity of Indian

Tribes. Meyers has lost sight of the real

question in this sovereign immunity case—

whether an Indian tribe can claim immunity

from suit. The answer to this question must

be “yes” unless Congress has told us in no

uncertain terms that it is “no.” Any ambiguity

must be resolved in favor of immunity.

Abrogation of tribal sovereign immunity may

not be implied. Of course Meyers wants us to

focus on whether the Oneida Tribe is a

government so that we might shoehorn it into

FACTA’s statement that defines liable

parties to include “any government.” But

when it comes to sovereign immunity,

shoehorning is precisely what we cannot do.

Congress’[s] words must fit like a glove in

their unequivocality. It must be said with

“perfect confidence” that Congress intended

to abrogate sovereign immunity and

“imperfect confidence will not suffice. ”

Congress has demonstrated that it knows how

to unequivocally abrogate immunity for

Indian Tribes. It did not do so in FACTA.

Id. at 826–27 (internal citations omitted).

DANIEL V. NAT’L PARK SERVICE 23

The same logic in Meyers applies with respect to the

United States. The “real question” in this sovereign

immunity appeal is not whether the United States is a

government; it is whether Congress explicitly waived

sovereign immunity or the United States can claim immunity

from suit. Having considered the structure of the FCRA as

a whole, we cannot say with “perfect confidence” that

Congress meant to abrogate the federal governme nt’s

sovereign immunity. And because “[a]ny ambiguities in the

statutory language are to be construed in favor of immunity, ”

Daniel’s suit was properly dismissed. See Cooper, 566 U.S.

at 290. 10

B. THE LEGISLATIVE HISTORY OF THE FCRA IS

CONSISTENT WITH OUR INTERPRETATION

During passage of the FCRA and every amendme nt,

Congress never considered subjecting the federal

government to liability in suits like the one filed by Daniel.

Thus, the legislative history “confirms what we have

concluded from the text alone.” Mohamad v. Palestinian

Auth., 566 U.S. 449, 460 (2012); see Al-Haramain, 705 F.3d

at 852 (considering legislative history to buttress a textual

conclusion that a statute does not waive sovereign

immunity).

In 1970, Congress passed the Fair Credit Reporting Act,

Pub. L. No. 91-508, tit. II, 84 Stat. 1127 (the “origina l

FCRA”). The original FCRA included the definition of

“person” that remains today. § 603, 84 Stat. at 1128. The

10 We cannot “expand [the FCRA’s] abrogation of immunity”

beyond that which is unequivocally expressed. Michigan v. Bay Mills

Indian Cmty., 134 S. Ct. 2024, 2034 (2014). Under our reading, the

FCRA authorizes money damages against the government only where

the “United States” is explicitly referenced in § 1681u(j).

24 DANIEL V. NAT’L PARK SERVICE

law did not impose civil liability on “any person” for

noncompliance with the FCRA; rather, civil suits for “any

actual damages,” punitive damages, costs and attorneys’ fees

were authorized against “[a]ny consumer reporting agency

or user of information” who willfully violated the Act.

§ 616, 84 Stat. at 1134; see also § 617, 84 Stat. at 1134

(imposing civil liability on “[a]ny consumer reporting

agency or user of information” who negligently violated the

Act).

The original FCRA did, however, impose criminal fines

or imprisonment on “[a]ny person who knowingly and

willingly obtains information on a consumer from a

consumer reporting agency under false pretenses.” § 619,

84 Stat. at 1134. It would be “patently absurd” to divine that

Congress intended to waive sovereign immunity for the sole

purpose of imposing criminal sanctions on the United States

in the original FCRA. See Al-Haramain, 705 F.3d at 854.

Fast forward to 1996, the Consumer Credit Reporting

Reform Act, Pub. L. No. 104-208, §§ 2401–52, 110 Stat.

3009-426–62 (the “1996 Act”), expanded the scope of the

FCRA’s civil damages provisions in four ways relevant to

this appeal. The 1996 Act replaced the “any consumer

reporting agency” language in the original FCRA with

“[a]ny person who fails to comply with any provision of this

title with respect to any other person shall be liable . . .”

§ 2412, 110 Stat. at 3009-446 (codified at 15 U.S.C.

§§ 1681n, 1681o) (emphasis added). It added statutory

damages of between $100 and $1,000 as an alternative to

“any actual damages” for each willful violation of the

FCRA. Id. (codified at 15 U.S.C. § 1681n). It authorized

the Federal Trade Commission to bring civil actions to

recover penalties from “any person” who violates the FCRA.

§ 2416, 110 Stat. at 3009-450 (codified at 15 U.S.C.

DANIEL V. NAT’L PARK SERVICE 25

§ 1681s). 11 And, it authorized states to seek damages from

“any person” who violates the FCRA under certain

circumstances. § 2417, 110 Stat. at 3009-451 (codified at

15 U.S.C. § 1681s).

Despite the 1996 Act’s levy of substantial potential

liability on “person[s],” Congress never once mentioned

exposing the federal fisc to the same liability. See, e.g., H.R.

Rep. No. 103-486, at 49 (1994) (the enforcement provisio ns

target “banks” and “retailers”). 12 To the contrary,

Congressional Budget Office analyses of prior versions of

the 1996 Act—which also imposed civil liability on

“person[s]”—did not anticipate any costs from defending the

federal government against private suits. See id. at 62–63;

S. Rep. No. 103-209, at 32–34 (1994); H.R. Rep. No. 102-

692, at 45–46 (1992). The lack of any reference to potential

federal liability is particularly glaring given the federal

government’s role as the nation’s largest employer, lender,

and creditor, and its corresponding vulnerability to suit

under the new FCRA provisions.

In 2003, Congress enacted FACTA, Pub. L. No. 108-

159, 117 Stat. 1952, which added various prohibitions to the

FCRA including the expiration date requirement at issue

11 The Dodd-Frank Wall Street Reform and Consumer Protection

Act of 2010, Pub. L. No. 111-203, 124 Stat. 1376, shared authority to

initiate such civil actions with the Consumer Financial Protection

Bureau. See § 1088(a)(10), 124 Stat. at 2090 (codified at 15 U.S.C.

§ 1681s(b)(1)(H)).

12 The Seventh Circuit considered the absence of legislative history

about waiving sovereign immunity in the 1996 Act “unsurprising”

because Congress already had waived sovereign immunity in the original

FCRA. Bormes, 759 F.3d at 795. The infirmity of this reasoning is that

the original FCRA subjected “person[s]” to only criminal liability, which

Congress never would have thought applied to the United States.

26 DANIEL V. NAT’L PARK SERVICE

here. See § 113, 117 Stat. at 1959–60 (codified at 15 U.S.C.

§ 1681c(g)). FACTA did not amend the FCRA’s statutory

definition of “person” or its provisions related to civil suits,

damages, and federal and state enforcement of the law.

Like the 1996 Act, FACTA’s legislative history

establishes that the receipt prohibitions were directed toward

“businesses” or “merchants” that accept credit and debit

cards, not the federal government. See S. Rep. No. 108-166,

at 12 (2003). In fact, the Congressional Budget Office report

on FACTA refers to the receipt requirements as a “private-

sector mandate” without reference to any cost to the U.S.

government. Id. at 28–30.

Taken together, the legislative history demonstrates that

Congress never considered extending the enforceme nt

provisions of the FCRA to the federal government. Rather

than “specifically consider” sovereign immunity in crafting

the enforcement provisions, Congress “legislate[d] on a

sensitive topic inadvertently or without due deliberatio n”

when it used “person.” Sossamon, 563 U.S. at 290–91. The

explicit waiver rule exists to prevent such inadverte nt

drafting from exposing the United States to liability. Id.

Daniel’s suit fails because the Park Service is immune

from suit. No amendment of the complaint could remedy the

absence of a clear waiver of sovereign immunity in the

FCRA.

AFFIRMED.