Klint L. Mowrer v. DOT

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2020 Decided September 24, 2021

No. 19-5321

KLINT L. MOWRER & FRED WEAVER, JR.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01158)

Charles R. Stinson argued the cause for appellants. With

him on the briefs was Paul D. Cullen, Jr.

Caroline D. Lopez, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Mark B. Stern, Attorney, Steven G. Bradbury, General

Counsel, U.S. Department of Transportation, Paul M. Geier,

Assistant General Counsel for Litigation and Enforcement, Joy

K. Park, Senior Trial Attorney, and Charles J. Fromm, Deputy

Chief Counsel, Federal Motor Carrier Safety Administration.

Before: WILKINS and KATSAS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge KATSAS.

Opinion concurring in part and concurring in the judgment

filed by Senior Circuit Judge RANDOLPH.

KATSAS, Circuit Judge: The Fair Credit Reporting Act

(FCRA) governs the release of consumer reports by consumer

reporting agencies. This appeal presents the question whether

the Federal Motor Carrier Safety Administration acts as a

consumer reporting agency by distributing safety records of

commercial truck drivers to prospective employers, as required

by another federal statute. We hold that the Administration

does not act as a consumer reporting agency in doing so, and

we therefore affirm the dismissal of this FCRA damages action.

I

A

Congress enacted FCRA to “ensure fair and accurate credit

reporting, promote efficiency in the banking system, and

protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551

U.S. 47, 52 (2007). To those ends, FCRA comprehensively

regulates consumer reporting agencies. Three of its obligations

are directly relevant here. First, in preparing any consumer

report, a consumer reporting agency must follow reasonable

procedures to ensure that the report is as accurate as possible.

15 U.S.C. § 1681e(b). Second, a consumer reporting agency

must investigate the accuracy of its records about a consumer

upon the consumer’s request. Id. § 1681i(a)(1)(A). Third, if a

consumer reporting agency includes in a consumer report any

information that the consumer disputes, the report must note

the dispute and summarize the consumer’s position. Id.

§§ 1681c(f), 1681i(b)–(c).

3

FCRA defines its key terms “consumer reporting agency”

and “consumer report.” A “consumer reporting agency” is

“any person which, for monetary fees … regularly engages in

whole or in part in the practice of assembling or evaluating

consumer credit information or other information on

consumers for the purpose of furnishing consumer reports to

third parties.” 15 U.S.C. § 1681a(f). A “consumer report” is

any communication by a consumer reporting agency that meets

two further criteria. First, the communication must bear on a

consumer’s “credit worthiness, credit standing, credit capacity,

character, general reputation, personal characteristics, or mode

of living.” Id. § 1681a(d)(1). Second, the report must “serv[e]

as a factor in establishing the consumer’s eligibility” for one of

several purposes, including “employment purposes,” id.

§ 1681a(d)(1)(B), which means “evaluating a consumer for

employment, promotion, reassignment or retention as an

employee,” id. § 1681a(h). A “consumer” means an

“individual.” Id. § 1681a(c).

FCRA authorizes the award of money damages to

consumers injured by certain violations of the statute. It

imposes liability for actual damages on “[a]ny person” who

negligently violates FCRA. 15 U.S.C. § 1681o(a)(1). It

imposes liability for actual or statutory damages on “[a]ny

person” who willfully violates FCRA. Id. § 1681n(a)(1)(A).

And it defines “person” to include any “government or

governmental subdivision or agency.” Id. § 1681a(b).

B

Since 1998, Congress has required the Department of

Transportation to collect information on the safety of

commercial motor carriers and drivers. See 49 U.S.C.

§ 31106(a)(3)(B). The Department stores this information in a

database called the Motor Carrier Management Information

4

System (MCMIS), which it administers through the Federal

Motor Carrier Safety Administration. See Privacy Act of 1974:

System of Records, 65 Fed. Reg. 83,124, 83,124–25 (Dec. 29,

2000). The Administration obtains much of its information

from state governments, which submit it as a condition of

receiving federal grants. 49 U.S.C. § 31102(c)(2)(L), (P); 49

C.F.R. § 350.207(a)(12).

The MCMIS contains a wide range of information on

commercial drivers, including crash reports and records of

roadside inspections. See 65 Fed. Reg. at 83,125. The

Administration uses this information to guide the operation of

its Motor Carrier Safety Assistance Program, see id., which

involves grants to states and other political jurisdictions to

improve motor-carrier safety, see 49 U.S.C. § 31102; 49 C.F.R.

§ 350.101 et seq. The agency also uses the information to

guide enforcement actions, see 65 Fed. Reg. at 83,124–25,

which include placing out of service commercial drivers who

pose an imminent safety hazard, 49 U.S.C. § 521(b)(5).

In 2005, Congress directed the Administration to make

certain “reports contained in the [MCMIS]” available to pre-

employment screeners for the motor-carrier industry. Safe,

Accountable, Flexible, Efficient (SAFE) Transportation Act,

Pub. L. No. 109-59, sec. 4117(a), § 31150(a), 119 Stat. 1144,

1728 (2005) (codified at 49 U.S.C. § 31150(a)). The

Administration implemented this direction by creating the Pre-

Employment Screening Program (PSP), which allows

prospective employers to access crash and inspection reports

on commercial drivers. See Privacy Act of 1974; System of

Records Notice, 75 Fed. Reg. 10,554, 10,556 (Mar. 8, 2010).

The PSP charges a fee for these records and provides them only

with a driver’s written consent. Id.

5

The SAFE Transportation Act requires the Administration

to satisfy four conditions before releasing MCMIS records to

prospective employers. First, the Administration must ensure

that any information is released “in accordance with [FCRA]

and all other applicable Federal law.” 49 U.S.C. § 31150(b)(1).

Second, it must ensure that the driver consents to release of the

information. Id. § 31150(b)(2). Third, it must ensure that the

screener does not release the information to any other person.

Id. § 31150(b)(3). Fourth, it must provide a procedure for the

driver to correct inaccurate information in the System. Id.

§ 31150(b)(4).

To comply with the last requirement, the Administration

created a system called DataQs, which allows drivers to

challenge information in their PSP reports. Pre-Employment

Screening Program, 77 Fed. Reg. 42,548, 42,551 (July 19,

2012). DataQs forwards challenges to the state that submitted

the contested information, and the state then decides whether

to modify or remove it. Id.

C

Klint Mowrer and Fred Weaver are commercial truck

drivers who received citations for violating state vehicle-safety

laws. Mowrer received a citation because his “rear drag link”

had too much “play by hand pressure,” and Weaver received a

citation for failing to obey a “direction to be weighed.” J.A.

213, 215. State officials reported these citations to the

Administration for inclusion in the MCMIS. After state courts

dismissed misdemeanor charges arising from the citations, the

drivers asked the Administration to remove them from the

MCMIS. The Administration forwarded the requests to the

relevant state agencies, which declined to remove the citations.

The drivers later authorized the release of their PSP reports to

6

prospective employers. They now allege harm from the

inclusion of their citations in those reports.

Mowrer sued the Administration in 2012. Joined by three

other drivers and a trade association, he raised claims under

FCRA, the Administrative Procedure Act, and the Privacy Act.

Weaver filed a similar action in our court, which we transferred

to the district court. Weaver v. FMCSA, 744 F.3d 142, 148

(D.C. Cir. 2014). In 2014, the drivers filed a consolidated

complaint, which raised FCRA and APA claims but no Privacy

Act claim. The drivers sought both damages under FCRA and

prospective relief under the APA.

In 2015, the Administration moved to dismiss the

complaint. The district court denied the motion. As relevant

here, it held that FCRA waives federal sovereign immunity

from damages for FCRA violations. Owner-Operator Indep.

Drivers Ass’n v. Foxx, Nos. 12-1158, 14-548, 2015 WL

13651262, at *4 n.3 (D.D.C. Mar. 10, 2015).

In 2016, the district court dismissed the complaint for lack

of standing. Owner-Operator Indep. Drivers Ass’n v. DOT,

211 F. Supp. 3d 252, 261–62 (D.D.C. 2016). We affirmed in

part and reversed in part. 879 F.3d 339 (D.C. Cir. 2018). First,

we held that Mowrer and Weaver had Article III standing to

seek damages based on the Administration’s release of their

safety records to prospective employers. Id. at 345. Next, we

held that the drivers and their co-plaintiffs lacked standing to

seek injunctive relief, as the MCMIS no longer contained any

disputed information. Id. at 346–47. We thus remanded for

further proceedings on the damages claims under FCRA. Id. at

347.

In May 2018, the drivers moved to amend their complaint

to seek injunctive relief and to resurrect the Privacy Act claims

that they previously had asserted individually. The district

7

court denied the motion on the ground that our prior decision

had foreclosed injunctive relief, but it invited the drivers to add

Privacy Act claims in a separate motion. Owner-Operator

Indep. Drivers Ass’n v. DOT, 316 F. Supp. 3d 201, 206 (D.D.C.

2018). The drivers again moved to add those claims in July

2018. But after receiving briefing on the issue, the court denied

that motion as well. It reasoned that the drivers had unduly

delayed in seeking to revive their Privacy Act claims and, in

the alternative, that the drivers had waived the claims by

omitting them from their consolidated complaint. Mowrer v.

DOT, 326 F.R.D. 350, 353 (D.D.C. 2018). The operative

complaint thus seeks relief only under FCRA.

The drivers allege that the Administration violated FCRA

in three ways: by not following reasonable procedures to

ensure that their PSP reports were as accurate as possible, by

failing to investigate the accuracy of their PSP reports upon

request, and by refusing to add a statement of dispute to their

PSP reports. The drivers seek actual or statutory damages.

The district court dismissed the complaint on the ground

that the Administration, in releasing MCMIS records as

required by the SAFE Transportation Act, is not a “consumer

reporting agency” under FCRA. Mowrer v. DOT, No. 12-1158,

2019 WL 4418747, at *6 (D.D.C. Sept. 16, 2019).

On appeal, the drivers challenge both the dismissal of their

FCRA claim and the denial of their July 2018 motion to amend.

We have appellate jurisdiction under 28 U.S.C. § 1291.

II

Before reaching the merits, we consider whether Congress

has waived the federal government’s sovereign immunity from

damages claims under FCRA.

8

A waiver of sovereign immunity “must be unequivocally

expressed in statutory text.” FAA v. Cooper, 566 U.S. 284, 290

(2012) (cleaned up). Any ambiguities must be “construed in

favor of immunity,” and ambiguity exists if there is a “plausible

interpretation of the statute that would not authorize money

damages against the Government.” Id. at 290–91. At the same

time, waiving sovereign immunity does not require “magic

words.” Id. at 291. We instead require only that the waiver

“be clearly discernable from the statutory text in light of

traditional interpretive tools.” Id.

FCRA meets this standard. It provides that “[a]ny person

who willfully fails to comply with any requirement imposed

under this subchapter with respect to any consumer is liable to

that consumer” for either “actual damages” or statutory

“damages” within specified dollar ranges. 15 U.S.C.

§ 1681n(a)(1)(A). “[T]his subchapter” refers to subchapter III

of chapter 41 of Title 15, which contains FCRA. See id.

§§ 1681–1681x. Likewise, FCRA provides that “[a]ny person

who is negligent in failing to comply with any requirement

imposed under this subchapter with respect to any consumer is

liable to that consumer” for “actual damages.” Id.

§ 1681o(a)(1). FCRA also defines the term “person”—it states

that “for the purposes of this subchapter ... [t]he term ‘person’

means any individual, partnership, corporation, trust, estate,

cooperative, association, government or governmental

subdivision or agency, or other entity.” Id. § 1681a(a)–(b). For

willful violations, FCRA provides one cause of action against

“[a]ny person,” id. § 1681n(a)(1)(A), and an additional cause

of action against any “natural person,” id. § 1681n(a)(1)(B).

Together, these provisions speak clearly enough to waive

federal sovereign immunity. FCRA defines “person” to

include “any ... government”—a term that, as used in a federal

statute, surely includes the federal government. FCRA makes

the definition generally applicable to subchapter III, which

9

includes its private causes of action. Through those causes of

action, FCRA imposes monetary liability on “any person” who

willfully or negligently violates its terms. And it distinguishes

between liability that runs against “any” person and liability

that runs only against “natural” persons, reflecting a calibrated

approach to the question of which persons should bear which

liabilities. For these reasons, the Seventh Circuit correctly held

that FCRA waives federal sovereign immunity. Bormes v.

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

The Fourth and Ninth Circuits have reached the opposite

conclusion, Robinson v. U.S. Dep’t of Educ., 917 F.3d 799 (4th

Cir. 2019); Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir.

2018), but their reasoning is unpersuasive.

These courts noted that FCRA contains a second, more

specific waiver of sovereign immunity. Robinson, 917 F.3d at

803–04; Daniel, 891 F.3d at 771–72. Section 626 of FCRA

requires consumer reporting agencies to disclose certain

information to the Federal Bureau of Investigation, 15 U.S.C.

§ 1681u(a)–(b); permits the FBI to disseminate that

information to other federal agencies in limited circumstances,

id. § 1681u(g); and imposes damages liability on “[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,” id. § 1681u(j). But there is a good

reason why section 626 specifically targets federal agencies, as

only they may lawfully receive consumer information under it.

The fact that section 626 imposes liability only on federal

agencies thus says little about whether FCRA’s other causes of

action cover the United States through broader language

encompassing “any ... government.”

The Fourth Circuit reasoned that if FCRA’s definition of

“person” applied to its primary causes of action, then a serious

constitutional question would arise. Robinson, 917 F.3d at 805.

10

For if those causes of action run against “any ... government,”

they would cover state governments even though Congress

cannot abrogate state sovereign immunity under the Commerce

Clause. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47

(1996). But even if FCRA unconstitutionally imposes damages

liability on state governments, there is no constitutional bar to

Congress waiving the sovereign immunity of the federal

government. Moreover, although ambiguous statutes do not

abrogate state sovereign immunity—just as they do not waive

federal sovereign immunity—that does not license courts to

disregard the clear terms of unambiguous statutes. Thus, when

Congress subjected any “public agency” to damages liability

under the Age Discrimination in Employment Act, and

separately defined “public agency” to include states, it

managed to extend ADEA liability to the states—even though

the extension proved unconstitutional. See Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 73–74 (2000). So too here, when

Congress subjected any “person” to damages liability under

FCRA, and separately defined “person” to include “any ...

government,” it acted with sufficient clarity to reach federal

and state governments.

FCRA also subjects covered persons to punitive damages,

15 U.S.C. § 1681n(a)(2), criminal liability, id. § 1681q, and

civil enforcement actions by the Federal Trade Commission,

id. § 1681s(a), and the states, id. § 1681s(c). According to the

Fourth and Ninth Circuits, the consequences of applying these

provisions to the federal government would range from

implausible to absurd. So, the courts concluded, FCRA’s

definition of “person” must be limited to its “substantive”

rather than its “enforcement” provisions. See Robinson, 917

F.3d at 806; Daniel, 891 F.3d at 770–71. But some of these

consequences are hardly absurd. For instance, Congress may

impose punitive damages on government entities, so long as it

does so “expressly.” City of Newport v. Fact Concerts, Inc.,

453 U.S. 247, 260 n.21 (1981). And the federal government

11

routinely investigates itself, which is the primary mission of

various Inspectors General. As for the federal government

imposing criminal liability on itself, or subjecting itself to

investigation by the states, we may assume that contextual

considerations would prevent application of the “person”

definition as written. See Util. Air Regul. Grp. v. EPA, 573

U.S. 302, 320 (2014) (defined term “may take on distinct

characters from association with distinct statutory objects”).

But no such contextual considerations apply with respect to

sovereign immunity, where the only interpretive constraint is

that Congress waive it unambiguously. Finally, there is no

arguable basis for limiting FCRA’s definition of “person” to

substantive but not enforcement provisions; the definition by

its terms is “applicable for the purposes of this subchapter”—

i.e., subchapter III, which contains the entire statute. 15 U.S.C.

§ 1681a(a). So once it is conceded that “any ... government”

includes the United States—which is necessary to make

FCRA’s substantive provisions apply to the federal

government—there is no basis for denying that the same

definition governs FCRA’s private damages actions.

Finally, the Ninth Circuit reasoned that FCRA’s statutory

history counsels against reading its broad definition of

“person” to effect a sovereign-immunity waiver. See Daniel,

891 F.3d at 774–76. As originally enacted in 1970, FCRA

contained its current definition of “person,” but imposed

liability only on “[a]ny consumer reporting agency or user of

information” who negligently or willfully violated the Act.

Pub. L. No. 91-508, tit. VI, §§ 616–617, 84 Stat. 1127, 1134

(1970). So, the argument goes, the definition of “person” in

the 1970 statute cannot have waived sovereign immunity. We

fail to see the relevance of that conclusion, for Congress later

broadened FCRA’s damages actions to run against any

“person,” Consumer Credit Reporting Reform Act of 1996,

12

Pub. L. No. 104-208, § 2412, 110 Stat. 3009-426, 3009-446,

which is the text that we must construe and apply here.1

For these reasons, we hold that FCRA waives federal

sovereign immunity from its damages claims.

III

To qualify as a “consumer reporting agency” regulated by

FCRA, a person must regularly engage “in the practice of

assembling or evaluating consumer credit information or other

information on consumers for the purpose of furnishing

consumer reports to third parties.” 15 U.S.C. § 1681a(f). The

drivers contend that the Administration is a consumer reporting

agency because it assembles accident and vehicle-inspection

reports in the MCMIS and then furnishes them to prospective

employers through the PSP. The drivers argue that the

Administration violated FCRA by not using reasonable

procedures to ensure the accuracy of these records, id.

§ 1681e(b), by failing to investigate the accuracy of their

records upon request, id. § 1681i(a)(1)(A), and by failing to

1

We do not share the Ninth Circuit’s confidence that the 1970

statute effected no waiver of sovereign immunity. For example, the

statute imposed damages liability on any “user of information” who

negligently or willfully violated its terms, Pub. L. No. 91-508, tit. VI,

sec. 601, §§ 616–617, 84 Stat. at 1134; it permitted consumer

reporting agencies to disclose consumer reports to any “person” who

the reporting agency believed intended to use the information for

credit or other specified purposes, id. § 604(3), 84 Stat. at 1129; and

it defined “person” to include any government or government

agency, id. § 603(b), 84 Stat. at 1128. The 1970 Act thus appears to

waive sovereign immunity insofar as it uses consumer information

received from a credit reporting agency, though we need not

definitively resolve that question.

13

note to prospective employers that the drivers disputed the

accuracy of the citations at issue, id. §§ 1681c(f), 1681i(b)–(c).

In our view, the government is not a “consumer reporting

agency” in its administration of the MCMIS and the PSP. For

the sake of argument, we may assume that driver-safety records

are “consumer reports” within the meaning of FCRA. But

while the SAFE Transportation Act requires the

Administration to make such records available to prospective

employers, the Administration neither assembles nor evaluates

the records for that purpose. To the contrary, it assembles and

evaluates driver-safety records in the MCMIS, see 65 Fed. Reg.

at 83,124–25, and does so to “support safety regulatory and

enforcement activities” required by Title 49, see 49 U.S.C.

§ 31106(a)(1). The Administration thus uses MCMIS data to

inform its administration of the Motor Carrier Safety

Assistance Program, see 65 Fed. Reg. at 83,125, which

provides some $300 million in annual grants to states and other

jurisdictions for safety-related activities, see 49 U.S.C.

§§ 31102, 31104. Likewise, the Administration uses MCMIS

data to inform its own enforcement activity. See 65 Fed. Reg.

at 83,124–25. It has assembled and evaluated MCMIS data for

these purposes at least since 1998, see Pub. L. No. 105-178,

sec. 4004(a), § 31106, 112 Stat. 107, 398–400 (1998)—seven

years before the SAFE Transportation Act authorized the

Administration to release driver-safety records to prospective

employers. And the SAFE Transportation Act simply requires

the release of specified “reports” that are already “contained in

the Motor Carrier Management Information System”—namely

accident reports, inspection reports with no driver-related

safety violations, and inspection reports with serious driver-

related safety violations. 49 U.S.C. § 31150(a). For these

reasons, the Administration cannot fairly be described as

regularly engaged in “assembling” or “evaluating” these

accident and inspection reports “for the purpose of furnishing”

them to the drivers’ prospective employers.

14

The canon against surplusage reinforces our conclusion.

The SAFE Transportation Act requires the Administration to

satisfy four requirements before releasing MCMIS records to

pre-employment screeners, and these requirements incorporate

or parallel ones that FCRA already imposes on consumer

reporting agencies. First, the Administration must “ensure that

any information that is released” to prospective employers

“will be in accordance with [FCRA] and all other applicable

Federal law.” 49 U.S.C. § 31150(b)(1). Second, the

Administration must obtain a driver’s written consent before

releasing his safety records, id. § 31150(b)(2), which tracks

FCRA’s requirement that a consumer reporting agency must

obtain the consumer’s written consent before releasing a

consumer report for employment purposes, 15 U.S.C.

§ 1681b(b)(1)(A)(i), (b)(2)(A)(ii). Third, the Administration

must ensure that MCMIS records will be released only to the

prospective employer, 49 U.S.C. § 31150(b)(3), which tracks

FCRA’s requirement that a consumer reporting agency must

require prospective users to certify that a consumer report will

be used only for authorized purposes, 15 U.S.C. § 1681e(a).

Fourth, the Administration must create a procedure for drivers

to correct inaccurate information in the MCMIS, 49 U.S.C.

§ 31150(b)(4), which tracks FCRA’s requirement that credit

reporting agencies use procedures to ensure the “maximum

possible accuracy” of information in consumer reports, 15

U.S.C. § 1681e(b), and conduct at least a “reasonable

reinvestigation” if a consumer disputes the accuracy of

information in his file, id. § 1681i(a)(1)(A). These various

requirements in the SAFE Transportation Act would have little

or no effect if the Administration were already a “consumer

reporting agency” covered by FCRA. To be sure, the SAFE

Transportation Act contains at least a bit of surplusage insofar

as it incorporates “other applicable Federal law” besides

FCRA. 49 U.S.C. § 31150(b)(1). But one short, unavoidably

redundant catchall phrase is a far cry from what the plaintiffs’

15

position implies—the pointless incorporation into the SAFE

Transportation Act of one FCRA requirement after another.

In contrast, our interpretation gives meaningful effect to

the four FCRA-related conditions in the SAFE Transportation

Act. Specifically, they oblige the Administration to act “in

accordance with” FCRA provisions regarding the release of

information and to follow three other requirements tracking

those of FCRA. On this understanding, the Administration’s

release of the drivers’ safety records may well have violated

the SAFE Transportation Act, though not FCRA itself. Any

such violation of the SAFE Transportation Act may, in an

appropriate case, be redressable through the APA. But here,

we have already held that the drivers lack standing to seek

prospective relief under the APA, as the disputed records have

already been removed from the MCMIS. See Owner-Operator

Indep. Drivers, 879 F.3d at 346–47. And a violation of section

31150 could not itself support the money damages sought by

the drivers, for the SAFE Transportation Act contains no

arguable waiver of sovereign immunity.

For these reasons, we hold that the government did not

become a “consumer reporting agency” under FCRA through

its administration of the MCMIS database and the PSP

disclosure program. We thus affirm the dismissal of the

drivers’ damages claims under FCRA.

IV

The remaining issue is whether the district court

permissibly denied the drivers’ July 2018 motion to amend

their complaint to add Privacy Act claims. Federal Rule of

Civil Procedure 15(a)(2) provides that a district court “should

freely” allow amendment “when justice so requires.” But the

decision whether to permit amendment is “vested in the sound

discretion of the trial court,” Doe v. McMillan, 566 F.2d 713,

16

720 (D.C. Cir. 1977), which can deny leave to amend based on

either “undue delay” by the moving party or “undue prejudice”

to the other side, Foman v. Davis, 371 U.S. 178, 182 (1962).

In this case, the district court permissibly denied leave to

amend. We have consistently held that undue delay is a valid

ground for denying leave to amend, see, e.g., Elkins v. District

of Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012); Doe, 566

F.2d at 720, especially when the plaintiff offers “no good

reason” for the delay, Trudel v. SunTrust Bank, 924 F.3d. 1281,

1288 (D.C. Cir. 2019). Here, the drivers offer no explanation

why they raised Privacy Act claims in their opening

complaints, omitted them from their consolidated complaint,

and then waited four years before raising the claims anew. The

drivers instead argue that undue delay cannot support a denial

of leave to amend without a further showing of prejudice. We

need not decide whether such a showing is always required, for

we agree with the district court that, in this case, the drivers

waived their Privacy Act claims. The district court reasonably

concluded that “if an amended complaint omits claims raised

in the original complaint, the plaintiff has waived those omitted

claims.” Young v. City of Mount Ranier, 238 F.3d 567, 573

(4th Cir. 2001). And excusing such a waiver here would both

eliminate a defense to liability and oblige the Administration to

continue litigating a case that has already run for nine years.

That is more than enough to deny amendment.

We recognize that the district court, in denying the first

motion to amend, remarked that the drivers could later add a

Privacy Act claim. Owner-Operator Indep. Drivers, 316 F.

Supp. 3d at 206. The drivers argue that this remark bound the

court going forward. But a court may “modify or rescind its

orders at any point prior to final judgment in a civil case.”

Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016). Here, the

district court changed course long before final judgment, then

17

reasonably explained its revised position. Changing course in

this way did not violate any law of the case.

V

The district court properly dismissed the drivers’

complaint and permissibly denied their July 2018 motion for

leave to amend.

Affirmed.

KATSAS, Circuit Judge, concurring: The Court’s opinion

in this case proceeds in conventional fashion by deciding, first,

that the Fair Credit Reporting Act waives the federal

government’s sovereign immunity from claims for money

damages and, second, that the FCRA claims asserted against

the government here lack merit. Judge Randolph criticizes us

for deciding the sovereign-immunity question unnecessarily. I

write separately to explain my view that because the sovereign-

immunity question goes to our jurisdiction, we must decide it

before reaching the merits.

I

In Steel Co. v. Citizens for a Better Environment, 523 U.S.

83 (1998), the Supreme Court famously and emphatically

confirmed that a federal court, before it resolves the merits of

a case, must first conclude that it has jurisdiction to do so. Id.

at 93–102. This requirement, which rests on a “long and

venerable line of our cases,” arises from “‘the nature and limits

of the judicial power’” and is “‘inflexible and without

exception.’” Id. at 94–95 (quoting Mansfield, C. & L.M.R. Co.

v. Swan, 111 U.S. 379, 382 (1884)). Because jurisdiction is the

“power to declare the law,” a court without jurisdiction “cannot

proceed at all in any cause.” Id. at 94 (quoting Ex parte

McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). A court with

only possible or hypothetical jurisdiction “produces nothing

more than a hypothetical judgment—which comes to the same

thing as an advisory opinion.” Id. at 101.

The Supreme Court held in FDIC v. Meyer, 510 U.S. 471

(1994), that “[s]overeign immunity is jurisdictional in nature.”

Id. at 475. The Court thought it “axiomatic that the United

States may not be sued without its consent and that the

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

(quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)).

Likewise, “the terms of the United States’ consent to be sued

in any court define that court’s jurisdiction to entertain the

suit.” Id. (cleaned up) (quoting United States v. Sherwood, 312

2

U.S. 584, 586 (1941)). “Therefore,” before reaching the merits

of a suit for damages against the federal government, a court

“must first decide” whether Congress has waived the

government’s sovereign immunity. Id. Meyer proceeded to

hold that Congress had waived the government’s immunity on

the claims at issue, id. at 475–83, and then to reject the claims

on their merits, id. at 483–86.

After Meyer, our court has four times held that we must

find a waiver of sovereign immunity before reaching the merits

of claims against the federal government. In Rochon v.

Gonzales, 438 F.3d 1211 (D.C. Cir. 2006), we cited Steel Co.

for the proposition that we “must” begin with the “issue of

jurisdiction,” we described federal sovereign immunity as

“jurisdictional” for that purpose, and we reached the merits

only after resolving the disputed immunity question. Id. at

1214–16. In Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006),

we ranked as “‘jurisdictional’” the question “whether the

United States has waived its sovereign immunity,” and we

reached the merits only after “[h]aving concluded that there is

jurisdiction.” Id. at 185–87 (quoting Meyer, 510 U.S. at 475).

In Perry Capital LLC v. Mnuchin, 864 F.3d 591 (D.C. Cir.

2017), we held that Steel Co.’s “obligation to assure ourselves

we have jurisdiction” at the outset “extends to sovereign

immunity because it is ‘jurisdictional in nature.’” Id. at 619

(quoting Meyer, 510 U.S. at 475). In Sierra Club v. Wheeler,

956 F.3d 612 (D.C. Cir. 2020), we held that “[b]ecause

sovereign immunity is ‘jurisdictional in nature,’ we must

assure ourselves that the Sierra Club’s claims fall within a valid

waiver of sovereign immunity before allowing the suit to

proceed.” Id. at 616 (quoting Meyer, 510 U.S. at 475). We

have also treated federal sovereign immunity as jurisdictional

in other respects. We have raised the issue sua sponte. See

Perry Capital, 864 F.3d at 619; Trudeau, 456 F.3d at 185;

Rochon, 438 F.3d at 1215–16. And we have held that an

agency’s appearance in court does not waive its sovereign

3

immunity because “officers of the United States possess no

power … to confer jurisdiction on a court in the absence of

some express provision of Congress.” Dep’t of Army v. FLRA,

56 F.3d 273, 275 (D.C. Cir. 1995) (quoting United States v.

N.Y. Rayon Importing Co., 329 U.S. 654, 660 (1947)).

This analysis accords with the treatment of state sovereign

immunity. Federal and state sovereign immunity derive from

the same source—the centuries-old view that no sovereign may

“be sued without its consent,” which was “universal in the

States when the Constitution was drafted and ratified.” Alden

v. Maine, 527 U.S. 706, 715–16 (1999). Before ratification,

states enjoyed this immunity as “fully sovereign nations,”

Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1493–95 (2019)—

as the United States does today. States still largely enjoy the

same immunity, insofar as sovereign immunity “limits the

grant of judicial authority in Art. III.” Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Likewise, the

Eleventh Amendment, which sought “to restore the original

constitutional design” regarding sovereign immunity, Alden,

527 U.S. at 722, speaks in expressly jurisdictional terms, U.S.

Const. amend. XI (limiting scope of the federal “Judicial

power” to entertain suits against states). And because state

sovereign immunity imposes a “jurisdictional restriction” on

the federal courts, it must be “given priority” under Steel Co.

Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529

U.S. 765, 778–80 (2000).

Our treatment of foreign sovereign immunity is also

instructive. The Foreign Sovereign Immunities Act grants

foreign sovereigns immunity “from the jurisdiction of the

courts of the United States and of the States,” 28 U.S.C. § 1604,

except as provided by exceptions in the FSIA itself, see id.

§§ 1605–1607. Accordingly, we must resolve assertions of

foreign sovereign immunity “[a]t the threshold of every

action,” before the merits. Verlinden B.V. v. Cent. Bank of

4

Nigeria, 461 U.S. 480, 493–94 (1983); Process & Ind. Dev.

Ltd. v. Fed. Repub. of Nigeria, 962 F.3d 576, 584 (D.C. Cir.

2020).

II

Against all this, Judge Randolph invokes In re Sealed

Case No. 99-3091, 192 F.3d 995 (D.C. Cir. 1999) (per curiam).

There, we held that because federal sovereign immunity “can

be waived,” it is a “less than pure jurisdictional question,”

which “need not be decided before [the] merits.” Id. at 1000–

01 (cleaned up). The primary authority we cited was United

States ex rel. Long v. SCS Business & Technical Institute, Inc.,

173 F.3d 890 (D.C. Cir. 1999), which we read to hold that

Eleventh Amendment immunity “need not be decided before

the merits.” 192 F.3d at 1000.

How to handle this clear conflict among our precedents?

We have held that “when a decision of one panel is inconsistent

with the decision of a prior panel, the norm is that the later

decision, being in violation of that fixed law, cannot prevail.”

Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011).

Moreover, if an earlier circuit precedent prevails over later

inconsistent circuit precedents, then so too must an earlier

Supreme Court precedent. Thompson v. Dallas City Attorney’s

Office, 913 F.3d 464, 467–68 (5th Cir. 2019). And Sealed Case

conflicts with prior Supreme Court precedent: whereas Meyer

held that federal sovereign immunity is a “jurisdictional” issue

that we “must first decide” before reaching the merits, 510 U.S.

at 475, Sealed Case held that federal sovereign immunity is

only “quasi-jurisdictional” and so “we are not required to

decide [it] before the merits,” 192 F.3d at 1000–01. Later

5

panels of this Court were thus correct to follow Meyer over

Sealed Case, and we should do the same.1

Moreover, later Supreme Court decisions have

“eviscerated” the reasoning of Sealed Case, which separately

makes it no longer binding. See Dellums v. NRC, 863 F.2d 968,

978 n.11 (D.C. Cir. 1988). Sealed Case held that federal

sovereign immunity is a “less than pure jurisdictional

question”—and thus not subject to Steel Co.—because

Congress can waive it. 192 F.3d at 1000. But in that respect,

federal sovereign immunity is like two other waivable but

jurisdictional questions: Eleventh Amendment immunity,

which Sealed Case discussed, and personal jurisdiction, see

Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 394 (1998)

(Kennedy, J., concurring) (“the hybrid nature of the

jurisdictional bar erected by the Eleventh Amendment ... bears

substantial similarity to personal jurisdiction requirements,

since it can be waived”); Baude & Sachs, The Misunderstood

Eleventh Amendment, 169 U. Penn. L. Rev. 609, 625 (2021);

Nelson, Sovereign Immunity as a Doctrine of Personal

Jurisdiction, 115 Harv. L. Rev. 1559, 1574–79 (2002). After

we decided Sealed Case, the Supreme Court made clear that

Eleventh Amendment immunity is a threshold jurisdictional

issue for purposes of Steel Co., see Vt. Agency, 529 U.S. at

778–80, even though states can waive it. Likewise, the Court

has held that personal jurisdiction, though waivable, ranks as

jurisdictional under Steel Co. Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 583–84 (1999). Later, the Court confirmed

1

Judge Randolph dismisses Meyer as unreasoned dicta. Post

at 6. But the Supreme Court made clear what it meant: “Sovereign

immunity is jurisdictional in nature,” and, “[t]herefore, we must first

decide” it. Meyer, 510 U.S. at 475. The Court proceeded to resolve

a sovereign-immunity question against the government, only then to

rule for the government on the merits, id. at 475–83—precisely our

disposition in this case.

6

the corollary proposition that a federal court “may not rule on

the merits of a case without first determining that it has” both

“subject-matter” and “personal jurisdiction.” Sinochem Int’l

Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430–31

(2007). After these intervening decisions, it is no longer

possible to maintain that courts may skip over federal

sovereign immunity simply because Congress can waive it.2

2

The law of other circuits tugs in different directions. At least

five other circuits have treated federal sovereign immunity as a

threshold jurisdictional issue. See Montilla v. Fed. Nat’l Mortg.

Ass’n, 999 F.3d 751, 758 (1st Cir. 2021) (sovereign immunity is “a

threshold jurisdictional question”); Tobar v. United States, 639 F.3d

1191, 1195 (9th Cir. 2011) (sovereign immunity “can be raised at

any time by the government, as it goes to a court’s jurisdiction”);

Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005) (“Because a

finding of sovereign immunity would deprive this court of subject

matter jurisdiction, we address that question first ….”); Harmon

Indus., Inc. v. Browner, 191 F.3d 894, 903 (8th Cir. 1999)

(“Sovereign immunity … is a jurisdictional threshold matter and it is

well-established that questions of subject matter jurisdiction can be

raised for the first time on appeal.”); Antol v. Perry, 82 F.3d 1291,

1297 (3d Cir. 1996) (“the district court first should have considered

whether Congress unequivocally expressed a waiver of sovereign

immunity” because it “is jurisdictional in nature” (cleaned up)).

Judge Randolph highlights circuit decisions coming out the opposite

way, see post at 5 n.7 & 12–17, though he overstates the extent of

support for his view by including in his addendum cases decided

before Steel Co., cases skipping over sovereign immunity without

addressing the sequencing question, cases skipping over sovereign

immunity to decide another jurisdictional question, and unpublished

decisions. The fairest summary of all the caselaw appears in one of

the decisions that he cites: “We have not spoken with one voice on

whether we must, or whether we may, resolve a sovereign-immunity

defense before addressing the merits.” Nair v. Oakland Cty. Comm.

Mental Health Auth., 443 F.3d 469, 474 (6th Cir. 2006).

7

III

More broadly, Judge Randolph contends that Steel Co.

imposes no sequencing rule for any question of statutory as

opposed to constitutional jurisdiction. Post at 1–4. But Steel

Co. says the opposite, as does most of our precedent.

A

As a conceptual matter, it makes little sense, in

distinguishing between jurisdiction and the merits, to

differentiate constitutional and statutory jurisdiction. Article

III imposes two limitations on the jurisdiction of the federal

courts. First, “[t]he judicial Power of the United States”

extends only to the Supreme Court and “such inferior Courts as

the Congress may from time to time ordain and establish.” U.S.

Const. Art. III, § 1. It is hornbook law that Congress’s power

to establish inferior courts includes the power to “define their

respective jurisdictions.” Sheldon v. Sill, 49 U.S. (8 How.) 441,

448 (1850). Second, “[t]he judicial Power” extends only to

certain “Cases” and “Controversies.” U.S. Const. Art. III, § 2.

Both limitations arise from the same, explicitly jurisdictional

reference to the federal “judicial Power.” And nothing in

Article III suggests that the jurisdictional rules established

under section 1 are of lesser kind than those created by section

2. Because Article III itself does not impose a hierarchy of

jurisdictional issues, we should not either. See Kaplan v. Cent.

Bank of the Islamic Repub. of Iran, 896 F.3d 501, 517 (D.C.

Cir. 2018) (Edwards, J., concurring) (“The distinction between

statutory limitations on subject-matter jurisdiction and other

Article III jurisdictional limitations is tenuous, as both

limitations arise from Article III.”).

Nor did Steel Co. draw that distinction. Although the

jurisdictional question presented there involved the case-or-

controversy requirement of Article III, the Court’s reasoning

was not so limited. In holding that federal courts must decide

8

jurisdictional issues before merits ones, Steel Co. described

jurisdictional issues as ones involving “power to declare the

law” or “the nature and limits of the judicial power of the

United States.” 523 U.S. at 94–95 (quoting Ex parte

McCardle, 74 U.S. (7 Wall.) at 514, and Mansfield, 111 U.S.

at 382). On that understanding, it makes no difference whether

the resolution of a jurisdictional issue depends on Article III or

a federal statute. Moreover, the canonical cases cited in Steel

Co. for the proposition that jurisdictional issues must be

decided first presented only questions of statutory jurisdiction:

Ex parte McCardle involved a statute that stripped away

jurisdiction otherwise provided by Article III, see 74 U.S. (7

Wall.) at 512–13, and Mansfield involved the statutory

requirement of complete diversity of citizenship, see 111 U.S.

at 380–82.3 Finally, in summing up its holding, Steel Co.

referenced both statutory and constitutional jurisdiction: “The

statutory and (especially) constitutional elements of

jurisdiction are an essential ingredient of separation and

equilibration of powers, restraining the courts from acting at

certain times, and even restraining them from acting

permanently regarding certain subjects.” 523 U.S. at 101.

This Court repeatedly has held that, under Steel Co., we

“must” decide questions of statutory jurisdiction before the

merits. In re Sealed Case, 449 F.3d 118, 121 (D.C. Cir. 2006).

We have done so in cases involving statutory jurisdiction over

a sentencing appeal, id.; statutory jurisdiction under the Tucker

Act, Rochon, 438 F.3d at 1214 (“We begin, as we must, with

the issue of jurisdiction.”); statutory jurisdiction under the

Hobbs Act, Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251,

3

The parties in Mansfield were minimally but not completely

diverse, see 111 U.S. at 380–82, and the requirement of complete

diversity arises by statute, see Strawbridge v. Curtiss, 7 U.S. (3

Cranch) 267, 267 (1806).

9

1264 (D.C. Cir. 2004) (“Before addressing the merits … we

must consider two jurisdictional issues.”); habeas jurisdiction

under 28 U.S.C. § 2253, Madley v. U.S. Parole Comm’n, 278

F.3d 1306, 1308 (D.C. Cir. 2002) (“As the question affects our

power to consider this appeal, we must consider it before the

merits.” (cleaned up)); and finality under 28 U.S.C. § 1291,

Doe v. Exxon Mobil Corp., 473 F.3d 345, 348 (D.C. Cir. 2007)

(“Before we can consider the merits of Exxon’s political

question arguments, we must determine whether we have

jurisdiction.”); Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880

(D.C. Cir. 2000) (“Because this court may not proceed without

appellate jurisdiction, we must address the motion to dismiss

before considering the arguments on the merits.”). Similarly,

in Coalition for Fair Lumber Imports v. United States, 471 F.3d

1329 (D.C. Cir. 2006), we held that “statutory jurisdiction” is

a “jurisdictional” issue under Steel Co., which permitted us to

decide it without reaching another jurisdictional question about

Article III mootness. Id. at 1332–33.

B

Again, we confront conflicting precedents. In the

decisions discussed above, we held that we must decide

questions of statutory jurisdiction before the merits. On the

other hand, Kramer v. Gates, 481 F.3d 788 (D.C. Cir. 2007),

held that the “absolute priority” rule of Steel Co. governs only

“issues related to Article III jurisdiction” and does not prohibit

“addressing the merits where doing so [makes] it possible to

avoid a doubtful issue of statutory jurisdiction.” Id. at 791.

Since then, we have twice applied Kramer without further

analysis. Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1246 (D.C.

Cir. 2020) (“The law of our circuit allows a court to assume

hypothetical statutory jurisdiction even if we cannot assume

Article III jurisdiction.”); Chalabi v. Hashemite Kingdom of

Jordan, 543 F.3d 725, 728 (D.C. Cir. 2008) (“Steel Co. requires

10

that we prioritize the jurisdictional issue only when the

existence of Article III jurisdiction is in doubt”).

To harmonize these competing case lines, I would again

return to Meyer, which specifically held that federal courts

“must first decide” federal sovereign immunity before reaching

the merits. 510 U.S. at 475. Whatever rule might govern

statutory-jurisdiction questions besides those bearing on

federal sovereign immunity, no circuit decision could abrogate

the Supreme Court’s specific holding on that point. Moreover,

earlier circuit decisions control over later ones, and at least six

pre-Kramer decisions squarely require federal courts to resolve

questions of statutory jurisdiction before the merits. Finally, as

explained below, subsequent Supreme Court decisions have

eviscerated Kramer.

Kramer relied on the second footnote of Steel Co., which

stated that sometimes “a merits question can be given priority

over a statutory standing question.” 523 U.S. at 97 n.2.

Kramer equated the phrase “statutory standing” with “statutory

jurisdiction,” then made the sweeping conclusion that courts

may decide the merits before any question of statutory

jurisdiction. 481 F.3d at 791. But after Kramer was decided,

the Supreme Court clarified that the term “statutory standing”

means the traditional zone-of-interests requirement, which asks

“whether a legislatively conferred cause of action encompasses

a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 127 (2014) (citing

Steel Co., 523 U.S. at 97 n.2). Lexmark further noted that the

term “statutory standing” is misleading, “since the absence of

a valid (as opposed to arguable) cause of action does not

implicate subject-matter jurisdiction, i.e., the court’s statutory

or constitutional power to adjudicate the case.” Id. at 128 n.4

(cleaned up). So in concluding that a court may decide the

“merits” question “whether any plaintiff has a cause of action

under the statute” at issue before deciding the so-called

11

“statutory standing” question “whether this plaintiff has a cause

of action,” Steel Co., 523 U.S. at 97 n.2, the Supreme Court

was simply allowing one merits question to be decided before

another.4 After Lexmark, there is no basis for reading the

footnoted reference to “statutory standing” as encompassing all

questions of statutory jurisdiction.5

Sinochem further undercuts Kramer. That case reiterated

the holding of Ruhrgas that federal courts may decide

questions of personal jurisdiction before questions of subject-

4

That is exactly what happened in National Railroad

Passenger Corp. v. National Association of Railroad Passengers,

414 U.S. 453 (1974), where the Court decided the merits question

“whether a statutory cause of action existed” before considering the

“statutory standing” question whether the plaintiff came within its

“zone of interests.” See Steel Co., 523 U.S. at 97 & n.2 (discussing

National Railroad).

5

In clarifying that “statutory standing,” “prudential standing,”

and “cause of action” are all merits questions, Lexmark highlights

another question noted in footnote 2 of Steel Co.: how can “statutory

standing” questions (about the merits) ever “be given priority over

an Article III question”? 523 U.S. at 97 n.2. Vermont answers that

question. There, the Court held that the merits question whether a

statutory cause of action runs against the states may be decided

before the “jurisdictional” question whether the Eleventh

Amendment would bar the claim. See 529 U.S. at 779–80. The

Court explained that only “[t]he combination of logical priority and

virtual coincidence of scope makes it possible,” as between these two

questions, “to decide the statutory issue first.” Id. Logical priority,

because the question whether a statute purports to authorize some

claim against a state is analytically prior to the question whether the

Eleventh Amendment would prohibit it. And virtual coincidence,

because deciding the statutory merits question would not “expand the

Court’s power beyond the limits that the jurisdictional restriction has

imposed.” Id. at 779. This reasoning does not suggest that any

question of statutory jurisdiction may be decided first.

12

matter jurisdiction. 549 U.S. at 430–31. In Ruhrgas, the only

disputed question of subject-matter jurisdiction was one

involving “the complete diversity required by 28 U.S.C.

§ 1332, but not Article III.” 526 U.S. at 584 (cleaned up). Yet

in Sinochem, the Court treated that statutory question as one

that, like personal jurisdiction, must be decided before the

merits. 549 U.S. at 431. For these reasons, I agree with Judge

Edwards that Lexmark and Sinochem have substantially

undercut the Kramer line of cases. See Kaplan, 896 F.3d at

520 (Edwards, J., concurring) (“At an appropriate opportunity,

the court should consider whether, in light of Sinochem and

Lexmark, the Kramer/Chalabi distinction between statutory

and Article III jurisdictional issues can be sustained.”).6

IV

Finally, Judge Randolph opines on the history of sovereign

immunity. In his view, because the existence of immunity was

an open question at the Founding, and because the Supreme

Court decided merits questions before sovereign-immunity

6

The other precedents that Judge Randolph cites are inapposite.

Post at 3 & n.4. Thomas v. Network Solutions, Inc., 176 F.3d 500

(D.C. Cir. 1999), skipped over the question whether a government

contractor should receive antitrust immunity, not sovereign

immunity. Id. at 507–10. Sherrod v. Breitbart, 720 F.3d 932 (D.C.

Cir. 2013), assumed appellate jurisdiction under Norton v. Matthews,

427 U.S. 524 (1976), which did the same only because its “merits

question was decided in a companion case,” Steel Co., 523 U.S. at

98 (describing Norton, 427 U.S. at 530–31). Lin v. United States,

690 F. App’x 7 (D.C. Cir. 2017), is unpublished. And United States

ex rel. Long v. SCS Business & Technical Institute, 173 F.3d 890

(D.C. Cir. 1999), anticipated Vermont in holding that courts may

decide whether a statutory cause of action runs against states before

deciding whether the Eleventh Amendment would bar the cause of

action if it did. See id. at 893–98. As shown above in note 5, that is

entirely consistent with my take on Steel Co.

13

questions through the twentieth century, we should not read

Meyer to curtail that longstanding discretion. Post at 6–11.

But even putting aside that Meyer says what it says, Judge

Randolph gets the history wrong. Far from inventing a novel

rule, Meyer applied an understanding of sovereign immunity

that predates the Founding.

A

“[T]he doctrine that a sovereign could not be sued without

its consent was universal in the States when the Constitution

was drafted and ratified.” Alden, 527 U.S. at 715–16. In the

Founders’ view, it derived from both the common law and the

law of nations. Franchise Tax Bd., 139 S. Ct. at 1493. Under

the common law, “no suit or action [could] be brought against

the king, even in civil matters, because no court [could] have

jurisdiction over him.” 1 W. Blackstone, Commentaries *235;

see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 437–46

(1793) (Iredell, J., dissenting) (collecting English authorities);

1 F. Pollock & F. Maitland, History of English Law 518 (2d ed.

1898) (the king “cannot be compelled to answer in his own

court”). And under the law of nations, the sovereign was

“exempt[] ... from all [foreign] jurisdiction.” 4 E. de Vattel,

The Law of Nations 486 (J. Chitty ed. 1835).7

7

Judge Randolph protests that English subjects could obtain

relief against the Crown. Post at 7. But as Blackstone explains, this

relief depended on the Crown’s consent, “not upon compulsion,” 1

Blackstone, supra, at *236, which is consistent with how Alden

described the “universal” doctrine of sovereign immunity, see 527

U.S. at 715–16. Judge Randolph identifies the specific procedures

of traverse and monstrans de droit, which allowed subjects to avoid

certain “delays incident to a petition of right.” 9 W. Holdsworth, A

History of English Law 25–26 (3d ed. 1944). Both are consistent

with sovereign immunity: for one thing, they were procedures

enacted by statute, indicating at most a waiver of sovereign

14

During the ratification debates, leading Federalists were

adamant that the Constitution did not abrogate this settled

background rule. Alexander Hamilton wrote in The Federalist

that it “is inherent in the nature of sovereignty not to be

amenable to the suit of an individual without its consent.” The

Federalist No. 81. James Madison affirmed in the Virginia

ratifying convention that it was “not in the power of individuals

to call any state into court.” 3 Debates on the Federal

Constitution 533 (J. Elliot ed., 2d ed. 1854). And John

Marshall, speaking soon after Madison, concurred that it was

“not rational to suppose that the sovereign power should be

dragged before a court.” Id. at 555. Leading Anti-Federalists

agreed that sovereigns were not properly “subject[] . . . to

answer in a court of law, to the suit of an individual.” See, e.g.,

Brutus No. 13 (Feb. 21, 1788), in 4 The Founders’ Constitution

238 (P. Kurland & R. Lerner eds. 1987).

The reaction to Chisholm v. Georgia, 2 U.S. (2 Dall.) 419

(1793), reflected this consensus. When four Justices read

Article III to allow a citizen of South Carolina to sue the State

of Georgia without its consent, the decision “fell upon the

country with a profound shock.” 1 C. Warren, The Supreme

Court in United States History 96 (rev. ed. 1926). In little more

than two months, Congress approved the Eleventh Amendment

with near unanimity in both Houses. See Alden, 527 U.S. at

721. Within two years, the states ratified it and thereby

“overruled the Court.” Id. at 723. In doing so, they “acted not

to change but to restore the original constitutional design.” Id.

at 722; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

69 (1996) (Chisolm “was contrary to the well-understood

meaning of the Constitution”).

immunity; for another, relief under them still required sending a case

“before the king to make a final discussion.” See id.

15

While most Founding-era discussions of sovereign

immunity addressed the states, the immunity of the United

States was understood even more clearly. As Alden explained,

“the sovereign’s right to assert immunity from suit in its own

courts was a principle so well established that no one conceived

it would be altered by the new Constitution.” 527 U.S. at 741.

The United States fell squarely within this background rule, as

it was supreme over the states within its sphere of operation,

U.S. Const. Art. VI, cl. 2. Thus, even justices in the Chisholm

majority recognized that Article III preserved federal sovereign

immunity. Chisholm, 2 U.S. (2 Dall.) at 469 (Cushing, J.)

(expressing “doubt” that the “United States may be sued by a

citizen of any of the States”); id. at 478 (Jay, C.J.) (raising an

“important difference” between suits against states and suits

against the United States). For these reasons, Chief Justice

Marshall could describe the rule that “no suit can be

commenced or prosecuted against the United States” as

“universally received opinion.” Cohens v. Virginia, 19 U.S. (6

Wheat.) 264, 411–12 (1821).

B

The Framers also regarded sovereign immunity as

jurisdictional. Then as now, a justiciable case required adverse

“parties to come into court, who can be reached by its process,

and bound by its power.” 10 Annals of Cong. 606 (1800)

(remarks of then-Representative John Marshall); see also

Borden v. Fitch, 15 Johns. 121, 141 (N.Y. Sup. Ct. 1818) (“To

give any binding effect to a judgment, it is essential that the

Court should have jurisdiction of the person.”). Immunity

enabled a defendant sovereign to frustrate this requirement—

Madison and Marshall asserted that no party could “call” or

“drag[]” a sovereign into court. 3 Debates, supra, at 533, 555.

Blackstone described sovereign immunity as a bar to

“jurisdiction,” which “implies superiority of power.” 1

Blackstone, supra, at *235. And Hamilton acknowledged that

16

a sovereign could be sued “with[] its consent.” The Federalist

No. 81. From the beginning, sovereign immunity thus

concerned the power to hale a particular party into court, or

what we now call personal jurisdiction. See PennEast Pipeline

Co., LLC v. New Jersey, 141 S. Ct. 2244, 2264 (2021)

(Gorsuch, J., dissenting) (“Structural [sovereign] immunity

sounds in personal jurisdiction ….”); Nelson, supra, at 1565–

66 & n.23; Baude & Sachs, supra, at 625.

This understanding fills the United States Reports. In

United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834), Chief

Justice Marshall remarked that a court “cannot exercise

jurisdiction over” a suit against the United States unless it falls

“within the authority of some act of [C]ongress.” Id. at 444.

And in later cases, the Court regularly described the

government’s consent to be sued as a prerequisite to

jurisdiction. See, e.g., United States v. U.S. Fid. & Guar. Co.,

309 U.S. 506, 514 (1940) (“Consent alone gives jurisdiction to

adjudge against a sovereign. Absent that consent, the

attempted exercise of judicial power is void.”); Haycraft v.

United States, 89 U.S. 81, 92 (1874) (“To our minds the

question is one of jurisdiction. A sovereign cannot be sued in

his own courts except with his consent.”); United States v.

McLemore, 45 U.S. (4 How.) 286, 288 (1846) (“There was no

jurisdiction of this case in the Circuit Court, as the government

is not liable to be sued, except with its own consent.”).

Meyer reasoned from this foundation. As Steel Co.

recounted, a “long and venerable line of our cases” had held

that courts must confirm their own jurisdiction before resolving

the merits of a case. 523 U.S. at 94–95. And in Meyer itself,

the Court held that federal sovereign immunity was

“jurisdictional” because the “terms of the United States’

consent to be sued in any court define that court’s jurisdiction,”

and because “the United States may not be sued without its

consent.” 510 U.S. at 475 (quoting Sherwood, 312 U.S. at 586,

17

and Mitchell, 463 U.S. at 212 (cleaned up)). This reasoning

followed Hamilton, Madison, and Marshall in viewing

sovereign immunity as effectively a rule of personal

jurisdiction. Meyer thus combined two legal principles that

date back to the Founding—first, that federal courts must begin

with their own jurisdiction and, second, that sovereign

immunity is jurisdictional—to conclude that federal courts

must begin with sovereign immunity. The brevity of the

Court’s opinion reflects not its novelty, but its bedrock nature.8

C

Judge Randolph identifies some early cases that decided

the merits before sovereign immunity. Post at 10–11. But his

nineteenth-century cases involved ejectment actions brought

against federal officials. United States v. Lee, 106 U.S. (16

Otto) 196, 196–97 (1882) (“the United States was not a party”);

Grisar v. McDowell, 73 U.S. (6 Wall.) 363, 369–70 (1868);

Brown v. Huger, 62 U.S. (21 How.) 305, 308–09 (1858);

8

The resemblance between sovereign immunity and personal

jurisdiction is admittedly imperfect. But to the degree that sovereign

immunity is unlike personal jurisdiction, it is instead like subject-

matter jurisdiction. See Schacht, 524 U.S. at 394–95 (Kennedy, J.,

concurring). For instance, the Eleventh Amendment concerns the

“Judicial power,” U.S. Const. amend. XI, which suggests a limit of

subject-matter jurisdiction. Similarly, the Supreme Court has held

that sovereign immunity may be asserted for the first time on appeal,

Edelman v. Jordan, 415 U.S. 651, 678 (1974)—a rule that generally

applies to questions of subject-matter jurisdiction, Capron v. Van

Noorden, 6 U.S. (2 Cranch) 126, 127 (1804), but not personal

jurisdiction, Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 702–04 (1982). This resemblance between sovereign

immunity and subject-matter jurisdiction does not affect the ordering

question before us, for courts must decide both personal and subject-

matter jurisdiction before the merits. See Sinochem, 549 U.S. at 430–

31.

18

Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 509 (1839). As the

Court later explained, these cases stand only for the proposition

that federal officials may be “sued individually as trespassers.”

Belknap v. Schild, 161 U.S. 10, 19 (1896). Moreover, only one

of the cases even mentioned sovereign immunity, and it did so

without considering whether the immunity was jurisdictional,

much less whether anything turned on that question. See Lee,

106 U.S. (16 Otto) at 204–23. Judge Randolph does identify

two twentieth-century cases where the Supreme Court resolved

the merits while reserving a question of sovereign immunity.

United States v. Mitchell, 445 U.S. 535, 546 & n.7 (1980);

Rabinowitz v. Kennedy, 376 U.S. 605, 607 (1964). But neither

decision offered any reasoning for doing so. On the question

of sequencing, these two decisions thus qualify as “drive-by

jurisdictional rulings” entitled to “no precedential effect.”

Steel Co., 523 U.S. at 91. Likewise, they establish no practice

long or settled enough to have interpretive significance. And

their utter silence on the sequencing question certainly does not

trump the Supreme Court’s later, reasoned holding on that very

point in Meyer.9

Judge Randolph also argues that English common-law

courts did not apply any ordering rule regarding sovereign

9

Judge Randolph mentions two inapposite decisions. In United

States ex rel. Goldberg v. Daniels, 231 U.S. 218 (1913), the Supreme

Court ruled for the government on sovereign immunity, which it

described as “earlier in point of logic” than the merits. Id. at 221–

22. Califano v. Boles, 443 U.S. 282 (1979), involved a denial of

benefits under the Social Security Act, an action that fell comfortably

within both the judicial-review provision in 28 U.S.C. § 405(g) and

the waiver of sovereign immunity for claims “seeking relief other

than money damages” in 5 U.S.C. § 702. The unaddressed immunity

question concerned not whether the Court could reach the merits, but

only a dispute about the available remedy if the claimant had

prevailed on the merits. See 443 U.S. at 296–97.

19

immunity. Post at 7–8. But the requirement that federal courts

begin with their jurisdiction stems from the plain text of the

Constitution, which specifically limits the federal “judicial

Power” to certain courts, U.S. Const. Art. III, § 1, and certain

cases or controversies, id. § 2. English law, which lacked a

written constitution and allowed common-law courts to

“regulate[]” their own jurisdiction, see Ex parte Bollman, 8

U.S. (4 Cranch) 75, 93 (1807), had no cause for a comparable

sequencing rule. And none of the Supreme Court’s sequencing

decisions, including its comprehensive opinion in Steel Co.,

even considered English law. So it is hard to see how a

decision from the Exchequer Chamber, which did not address

sequencing at all, could trump the express holding of Meyer

and two hundred years of American law that support it.

V

Finally, a word about prudence. Judge Randolph thinks

that because the merits questions in this case are

straightforward, it would be sensible to skip over the circuit-

splitting question whether FCRA waives federal sovereign

immunity. Post at 1. But the anterior sequencing question—

whether we must decide the sovereign-immunity question

first—is itself more complex than the sovereign-immunity

question, as my back-and-forth with Judge Randolph makes

clear. Moreover, as shown above, the sequencing question

implicates two distinct conflicts within our own precedent, as

well as deep inter-circuit confusion over whether sovereign

immunity is jurisdictional. So regardless of whether I am right

about Steel Co. and Meyer, the Court sensibly avoids that

question by resolving sovereign immunity first. For while

reasonable jurists may debate whether we must decide

sovereign immunity first, all agree that we may do so.

RANDOLPH, Senior Circuit Judge, concurring in part and

concurring in the judgment,

My colleagues conclude first that the governing statute

waives the sovereign immunity of the Federal Motor Carrier

Safety Administration. Then they tell us that the statute waiving

sovereign immunity does not apply to this federal agency — and

so the plaintiffs lose.

One may wonder how it can be that a statute waives the

sovereign immunity of a federal agency when the statute does

not even apply to the agency? This is a puzzle about which I

express no opinion. As I see it, the court should not have

exercised its discretion to decide the question of sovereign

immunity first. There is a circuit split on whether this federal

agency has immunity1 and, given the panel’s conclusion that the

plaintiffs have no cause of action — with which I agree — I

think it was improper to take a position on that question.

I.

The major premise of Judge Katsas’s concurring opinion is

that a federal court must always satisfy itself that it has

statutory jurisdiction before it may reach the merits. The rest of

his concurring opinion is devoted to demonstrating that

sovereign immunity is a matter of jurisdiction.

As I see it, his premise is wrong and so the rest of his

concurring opinion does not matter. Even if sovereign immunity

is jurisdictional (it is not),2 Supreme Court decisions and

1

Compare Bormes v. United States, 759 F.3d 793 (7th Cir. 2014),

with Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir. 2018), and

Robinson v. U.S. Dep’t of Educ., 917 F.3d 799 (4th Cir. 2019).

2

It “overstates the strength” of immunity to “analogize it to a lack

of jurisdiction,” as Judge Easterbrook aptly explained in United

2

decisions of this court hold in the clearest possible terms that

there is no rigid rule requiring a federal court to decide statutory

jurisdiction (as distinguished from Article III jurisdiction) before

getting to the merits.

Consider National Railroad Passenger Corp. v. National

Association of Railroad Passengers, 414 U.S. 453 (1974). The

Court first decided that the plaintiffs did not have a cause of

action. Only then did the Court explain: “Since we hold that no

right of action exists, questions of [statutory] standing and

jurisdiction became immaterial.” 414 U.S. at 465 n.13 (italics

added). The Court thus made clear that a merits question can be

decided before a statutory jurisdiction question. Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 96-97 & n. 2

(1998), while holding that “a merits question cannot be given

priority over an Article III question,” reaffirmed National

Railroad.3 In dissent, Justice Stevens relied on National

States v. County of Cook, 167 F.3d 381, 388 (7th Cir. 1999). After all,

federal sovereign immunity concerns “not the competence of the court

to render a binding judgment, but the propriety of interpreting a given

statute to allow particular relief.” Id. at 389. And the Supreme Court

has clarified that rules “should not be referred to as jurisdictional”

unless they govern a court’s “subject-matter or personal jurisdiction.”

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011).

“Other rules, even if important and mandatory . . . should not be given

the jurisdictional brand.” Id.

3

As Justice Breyer put it in his Steel Co. concurring opinion,

“[t]his Court has previously made clear that courts may ‘reserv[e]

difficult questions of . . . jurisdiction when the case alternatively could

be resolved on the merits in favor of the same party.’ Norton v.

Mathews, 427 U.S. 524, 532 (1976). That rule makes theoretical sense

[and] enormous practical sense.” 523 U.S. at 111 (Breyer, J.,

concurring).

3

Railroad and argued — as does Judge Katsas in his concurring

opinion here — that it was not logical to treat statutory questions

of jurisdiction differently than Article III case-or-controversy

questions. 523 U.S. at 120 & n. 12. The Court rejected Justice

Stevens’ argument. Id. at 97 n. 2.

Judge Katsas draws an analogy to the Supreme Court’s

“treatment of state sovereign immunity.” Ante, at 3. But the

analogy refutes his position. A few years after Steel Co. the

Court acknowledged with approval that it had “routinely

addressed before the question whether the Eleventh Amendment

forbids a particular statutory cause of action to be asserted

against States, the question whether the statute itself permits the

cause of action it creates to be asserted against States (which it

can do only by clearly expressing such an intent).” Vermont

Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S.

765, 779 (2000). It is worth noting that Justice Scalia, the

author of the Court’s Steel Co. opinion, also wrote the Court’s

opinion in Vermont Agency.

Our court therefore has determined that Steel Co. is limited

to Article III jurisdiction and that the Supreme Court “explicitly

recognized the propriety of addressing the merits where doing

so made it possible to avoid a doubtful issue of statutory

jurisdiction.” Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir.

2007) (Williams, J.). We reached the same conclusion about

Steel Co. in Sherrod v. Breitbart, 720 F.3d 932, 399–400 (D.C.

Cir. 2013).4 Speaking for the court in a later case, Chief Judge

Srinivasan thus stated: “The law of our circuit allows a court to

4

See also Lin v. United States, 690 F. App’x 7, 9 (D.C. Cir.

2017); Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 728

(D.C. Cir. 2008); Thomas v. Network Sols., Inc., 176 F.3d 500 (D.C.

Cir. 1999); U.S. ex rel. Long v. SCS Bus. & Tech. Sols., 173 F.3d 890,

895–98 (D.C. Cir. 1999).

4

assume hypothetical statutory jurisdiction even if we cannot

assume Article III jurisdiction.” Am. Hosp. Ass’n v. Azar, 964

F.3d 1230, 1246 (D.C. Cir. 2020).5 These decisions are flatly

contrary to Judge Katsas’s argument. Despite his attempt to

soften their impact, no panel has overruled Kramer or Sherrod,

nor could it. See LaShawn A. v. Barry, 87 F.3d 1389, 1395

(D.C. Cir. 1996) (en banc).

II.

This brings me to the final nail in my colleague’s

concurring opinion. As we have held and as the Supreme Court

itself has recognized, Steel Co.’s priority-of-decision rule is

limited to Article III jurisdiction.6 Judge Katsas’s argument that

we must decide sovereign immunity before reaching the merits

can be correct if and only if sovereign immunity is a matter of

Article III jurisdiction. It clearly is not and the concurring

opinion does not even attempt to show otherwise.

After the Supreme Court decided Steel Co., our court was

“uncertain” whether it covered federal sovereign immunity. E.

Bay Mun. Utility Dist. v. U.S. Dep’t of Com., 142 F.3d 479, 482

(D.C. Cir. 1998). In re Sealed Case No. 99-3091, 192 F.3d 995

(D.C. Cir. 1999), settled the matter as far as our circuit law is

concerned. Our court’s ruling was clear and concise: “Given the

5

This is also the law of other circuits. See United States v.

Woods, 210 F.3d 70, 74 (1st Cir. 2000); Butcher v. Wendt, 975 F.3d

236, 244 (2d Cir. 2020); Bowers v. Nat’l Collegiate Athletic Ass’n,

346 F.3d 402, 415 (3d Cir. 2003); Montague v. NLRB, 698 F.3d 307,

313 (6th Cir. 2012); Lukowski v. INS, 279 F.3d 644, 647 n. 1 (8th Cir.

2002); Minesen v. McHugh, 671 F.3d 1332, 1337 (Fed. Cir. 2012).

6

Even with respect to Article III jurisdiction there are exceptions,

as the court explained in Emory v. United Air Lines, Inc., 720 F.3d

915, 920 (D.C. Cir. 2013).

5

‘quasi-jurisdictional or ‘hybrid’ status . . . of federal sovereign

immunity, we are not required to decide that issue before the

merits.” Id. at 1000–01.7

And that tallies with the Supreme Court’s repeated refusal

to “mandate” an “order of decision that the lower courts must

follow.” Pearson, 555 U.S. at 241. Take qualified immunity,

which “springs from the same root considerations that generated

the doctrine of sovereign immunity.” Scheuer v. Rhodes, 416

U.S. 232, 239 (1974). In that context, the Court has recognized

that a “rigid” ordering rule risks “bad decisionmaking” and a

“substantial expenditure of scarce judicial resources on difficult

questions that have no effect on the outcome of the case.”

7

Judge Katsas says that “five other circuits” — the First, Second,

Third, Eighth, and Ninth — treat federal sovereign immunity as a

“threshold jurisdictional issue.” Ante, at 6 n.2. That would be news

to them. See, e.g., Conboy v. U.S. Small Bus. Admin., 992 F.3d 153,

157 (3d Cir. 2021) (deciding the merits and explaining that “we need

not resolve” federal sovereign immunity); Zarcon, Inc. v. NLRB, 578

F.3d 892, 896 n.3 (8th Cir. 2009) (finding it “unnecessary . . . to

address” federal sovereign immunity in light of merits ruling); United

States v. Manning, 527 F.3d 828, 837 n.8 (9th Cir. 2008) (“Because

the [statute] is invalid under the Supremacy Clause . . . we do not

reach the issue of sovereign immunity[.]”); Montijo-Reyes v. United

States, 436 F.3d 19, 23 (1st Cir. 2006) (“We do not need to decide”

the sovereign-immunity issue. “Instead, we decide the case on the

independent ground that there is an insufficient causal link between

the alleged failure to comply . . . and the alleged harm.”); Smith v.

Lehman, 689 F.2d 342, 345 (2d Cir. 1982) (“This difficult sovereign

immunity question need not be decided, however, because Smith’s

constitutional claims cannot succeed on the merits.”).

In fact, every circuit — First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, Tenth, Eleventh, and Federal — agrees with

our court that it may exercise its discretion to bypass federal sovereign

immunity and reach the merits. See the Addendum to this opinion.

6

III.

Against all this, Judge Katsas offers a single line from

FDIC v. Meyer, 510 U.S. 471, 475 (1994): “Sovereign immunity

is jurisdictional in nature[,]” so “we must first decide whether

[the Federal Savings and Loan Insurance Corporation’s]

immunity has been waived.”8 In his view, this “holding” created

a mandatory order of operations akin to that in Steel Co. Ante,

at 9, 15–16.

The analogy to Steel Co. is telling — just not in the way

Judge Katsas intends. In Steel Co., the Court’s thumbs-down to

bypassing Article III questions spanned more than a dozen pages

in the United States Reports and drew support from the text and

structure of Article III, the “common understanding of what it

takes to make a justiciable case,” and a “long and venerable

line” of precedent stretching back to 1804. Steel Co., 523 U.S.

at 94, 102. Compare that to Meyer. On Judge Katsas’s reading,

Meyer broke from centuries of common-law practice (without

a whiff of historical analysis), announced a new constitutional

rule (without citing the Constitution), and overruled stacks of

Supreme Court cases (without a word on stare decisis) — all in

a five-sentence umbrella paragraph.

A.

Judge Katsas begins his historical account of the common

law in 1765, when Blackstone wrote that English subjects could

8

“[T]he Supreme Court has warned against ‘dissect[ing] the

sentences of the United States Reports as though they were the United

States Code.’” Kalka v. Hawk, 215 F.3d 90, 95 (D.C. Cir. 2000)

(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).

“So perhaps the statement about what the [Court] ‘must’ do describes

only what [it] ordinarily should do.” Id.

7

not sue the crown as they would an ordinary defendant.9 But

that is only half the story. In the thirteenth century, Bracton

observed that “it was the king’s duty to redress wrongs done by

himself or on his behalf[.]” Ludwik Erlich, Proceedings Against

the Crown (1216 – 1377) 43, in 6 Oxford Studies in Social and

Legal History (Paul Vinograff, ed. 1921). So from Edward I on,

“the king himself [wa]s sued in the respectful form of a petition,

and he never fail[ed] to comply with the judgment of his court.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)

(Marshall, C.J.). And by the fourteenth century, two new

procedures — traverse and monstrans de droit — let subjects

recover property without royal consent. 9 William Holdsworth,

A History of English Law 25–26 (3d ed. 1944). The short of the

matter is this: “ordinary writs did not lie” against the king, id. at

10, but “sovereign immunity was not a bar to relief,” Louis L.

Jaffe, Suits Against Governments and Officers: Sovereign

Immunity, 77 Harv. L. Rev. 1, 1 (1963).

Judge Katsas’s sequencing rule is nowhere to be found in

the common law. Take the Bankers’ Case — the seminal

eighteenth-century precedent on sovereign immunity. The case

arose when Charles II signed a secret treaty to help Louis XIV

9

Judge Katsas also cites Vattel for the rule that sovereigns are

exempt from foreign jurisdiction. Ante, at 13. But this ignores the

distinction between “domestic” and “foreign” sovereign immunity. As

then-Professor Scalia explained, “the principles governing the

amenability of a [sovereign] to suit before its own courts” are “not at

all the same” as those “governing its amenability to suit before the

courts of another sovereign.” Antonin Scalia, Sovereign Immunity and

Nonstatutory Review of Federal Administrative Action: Some

Conclusions from the Public-lands Cases, 68 Mich. L. Rev. 867, 886

(1970). Federal sovereign immunity embodies the former; Vattel’s

rule and the Eleventh Amendment embody the latter. See id.

8

defeat the Dutch. But wars are expensive, and Charles — “the

playboy monarch” — was broke. Ronald Hutton, Charles II 446

(1989). So in 1671, he suspended payment on his debts, leaving

London bankers in “ruin[,] . . . unable to pay their depositors.”

Holdsworth, supra, at 33. Then, after promising the bankers a

royal annuity, Charles defaulted again in 1683. Seven years

(and one Glorious Revolution) later, the bankers asked the Court

of Exchequer to “enforce payment of these arrears.” The Case

of the Bankers, in 14 A Complete Collection of State Trials 3

(T.C. Howell ed., 1812) [hereinafter Bankers’ Case].

The Bankers’ Case raised two issues. The first was a merits

question: whether the annuity was valid. The second concerned

sovereign immunity. Bypassing the usual procedures, the

bankers had sued in the Exchequer — the “court of revenue”

with “power over the king’s treasure.” 3 William Blackstone,

Commentaries on the Laws of England 428 (15th ed. 1809).

With this novel tactic came a novel question: whether the court

had “power to relieve the petitioners, and give judgment for

them.” Bankers’ Case 7.

The barons of the Exchequer addressed the issues in

precisely that order, holding for the bankers on both questions.

See id. at 6–7. And when the attorney general appealed, a

majority of the Exchequer Chamber affirmed. Consider Lord

Chief Justice Holt’s opinion. Like the barons, Holt began with

the merits, finding the annuity “good and firm in law.” Id. at 34.

Only then did he reach the sovereign-immunity question,

holding that the bankers’ suit was “very proper and legal.” After

all: the bankers “ha[d] a right; and if so, then they must have

some remedy to come at it too.” Id.; cf. Marbury, 5 U.S. at 163.

In Holt’s view, the merits issue preceded — and informed —

any discussion of power or relief. The House of Lords agreed

with the Exchequer majority. See Bankers’ Case 110.

9

B.

Judge Katsas suggests that his position is rooted in the

Constitution. Article III, section 2 states that the “judicial Power

shall extend” to certain “Cases” and “Controversies.” It follows

that “whether there is a case or controversy” is a “threshold

matter.” Steel Co., 523 U.S. at 92, 94. Yet beyond these “large,

round, indefinite terms,” John F. Manning, Separation of

Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939,

2005 (2011), Article III dictates no rigid decisional sequence.

As to federal sovereign immunity, the Constitution says

nothing. Still less is there any hint about where it should fall in

the courts’ order of operations. That is hardly surprising, for at

the founding, “the federal government’s immunity from suit was

a question — not a settled constitutional fact.” Vicki C.

Jackson, Suing the Federal Government: Sovereignty, Immunity,

and Judicial Independence, 35 Geo. Wash. Int’l L. Rev. 521,

523 (2003).10

C.

10

The Supreme Court first recognized federal sovereign

immunity in 1821, when Chief Justice Marshall called it “[t]he

universally received opinion[.]” Cohens v. Virginia, 19 U.S. (6 Wheat)

264, 411 (1821). As then-Judge Scalia quipped: “I cannot avoid

noting . . . the profound envy that my colleague Judge Ginsburg and

I have of Justice Marshall’s ability to decide such an important issue

in four words[.]” Antonin Scalia, Historical Anomalies in

Administrative Law, Y.B.: Sup. Ct. Hist. Soc’y 1985, 103, 105 (1985).

10

If the Constitution forbids courts from bypassing federal

sovereign immunity, that “understanding” should “fill[] the

United States Reports.” Ante, at 15. But the opposite is true.

From the nineteenth century onward, the Court often used its

discretion to reach the merits ahead — or instead — of

sovereign-immunity questions.

Take Wilcox v. Jackson, 38 U.S. 498 (1839). There, the

Court ruled on the merits for a federal officer, without even

mentioning sovereign immunity. See also, e.g., Brown v. Huger,

62 U.S. 305 (1858) (same); Grisar v. McDowell, 73 U.S. 363

(1867) (same). And in Lee v. United States, 106 U.S. 196, 199

(1882), the Court “consider[ed] first” the merits, before saying

a word about the immunity question. Tellingly, while Lee drew

a spirited dissent, not one Justice suggested that the majority’s

sequencing choice offended the Constitution.

Of course, early courts also used their discretion to dismiss

cases on sovereign-immunity grounds, without reaching the

merits. And they often couched such dismissals in jurisdictional

terms. E.g., United States v. McLemore, 45 U.S. 286, 288

(1846). Still, no one suggested that Article III mandated that

sequence — a point illustrated in U.S. ex rel. Goldberg v. Meyer,

37 App. D.C. 282 (1911), aff’d sub nom, U.S. ex rel. Goldberg

v. Daniels, 231 U.S. 218 (1913). In Goldberg, our court ruled

on the merits for the Secretary of the Navy, holding that a

federal statute did not compel him to deliver a decommissioned

cruiser to a would-be buyer. Id. at 288–89. Writing for the

Court, Justice Holmes affirmed on the alternative ground of

federal sovereign immunity. See 231 U.S. at 222. But he called

this rationale “earlier in point of logic” — not constitutional

priority — and he found “no sufficient reason for throwing

doubt” on our merits-first approach. Id. at 221 (emphasis

added). The upshot was clear. Decisional sequencing was a

matter of discretion.

11

And that view held throughout the twentieth century.

Consider Kennedy v. Rabinowitz, 318 F.2d 181 (D.C. Cir. 1963),

aff’d, 376 U.S. 605 (1964) — a mirror image of Goldberg. In

Rabinowitz, lawyers representing Cuba sued the Secretary of

State, seeking a declaratory judgment that they were exempt

from registering as foreign agents. Calling sovereign immunity

a “threshold question,” our court ordered the case “dismissed . . .

as an unconsented suit against the United States.” Id. at 182–83.

But the Supreme Court saw things differently. In its view, the

Foreign Agents Registration Act “plainly and unquestionably

require[d] petitioners to register.” 376 U.S. at 607. The Court

thus affirmed on the merits, finding no “occasion to consider”

sovereign immunity. Id. See also, e.g., Califano v. Boles, 443

U.S. 282, 296–97 (1979) (“Because of our disposition of the

[merits] issue, we need not and do not reach” federal sovereign

immunity); United States v. Mitchell, 445 U.S. 535, 542 (1980)

(deciding the merits and explaining that the Court “need not

consider” federal sovereign immunity).

Did Meyer really discard all this precedent? Judge Katsas

thinks so, observing — quite rightly — that none of these cases

addressed the sequencing question head-on. Ante, at 17. But

that is exactly the point. If two-hundred years elapsed before

anyone supposed that the Constitution forbids courts to bypass

federal sovereign immunity, that is a good sign that Sovereign

Immunity First! is “bad wine of recent vintage.” Rotkiske v.

Klemm, 140 S. Ct. 355, 360 (2019) (quoting TRW Inc. v.

Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in

judgment)).

***

I acknowledge my colleague’s prerogative to disagree with

the precedents of the Supreme Court and of our court. Yet it

12

seems to me incumbent on my colleague to describe how he

would replace the many precedents he disregards, precedents

that make “theoretical sense” and “enormous practical sense.”

Supra n.3.

ADDENDUM

First Circuit:

Montijo-Reyes v. United States, 436 F.3d 19, 23 (1st Cir. 2006)

(“We do not need to decide” the sovereign-immunity issue.

“Instead, we decide the case on the independent ground that

there is an insufficient causal link between the alleged failure to

comply . . . and the alleged harm.”).

Scheidegg v. Dep’t of Air Force, 915 F.2d 1558 (Table), 1990

WL 151390, at *2 (1st Cir. Sept. 28, 1990) (per curiam joined

by Breyer, J.) (“We bypass [federal sovereign immunity]

because we can readily affirm the dismissal . . . on the merits.”).

Latinos Unidos de Chelsea en Accion (Lucha) v. Sec’y of Hous.

& Urb. Dev., 799 F.2d 774, 793 & n.27 (1st Cir. 1986) (because

“there is no private right of action,” it is “unnecessary for us to

consider whether sovereign immunity stands as a bar to

plaintiffs’ suit”).

Second Circuit:

Smith v. Lehman, 689 F.2d 342, 345 (2d Cir. 1982) (“This

difficult sovereign immunity question need not be decided,

however, because Smith’s constitutional claims cannot succeed

on the merits.”).

13

Third Circuit:

Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 157 (3d Cir.

2021) (“[A]lthough we have not explicitly addressed whether

the United States has waived sovereign immunity as to unjust

enrichment claims, we need not resolve that issue here because

Conboy and Gilsenan cited no record evidence creating a factual

dispute material to their unjust enrichment claim against the

SBA.”).

U.S. ex rel. IRS v. Norton, 717 F.2d 767, 774 (3d Cir. 1983)

(“[W]e find it unnecessary . . . to decide whether sovereign

immunity bars the imposition of a criminal contempt sanction

against the IRS” because “the IRS did not have fair warning that

its retention of funds was a per se violation of the automatic

stay.”).

Fourth Circuit:

Turner v. United States, 736 F.3d 274, 280 n.2 (4th Cir. 2013)

(“[W]e need not consider [sovereign immunity] because we find

that the [Coast Guard] did not violate the relevant standard of

care . . ..”).

Laber v. Harvey, 438 F.3d 404, 423 & n.19 (4th Cir. 2006) (en

banc) (“Title VII does not authorize a federal-sector employee

to bring a civil action [of this sort],” so “we need not address the

Army’s sovereign immunity argument.”).

Al Fayed v. United States, 210 F.3d 421, 423–25 (4th Cir. 2000)

(“[T]he district court did not abuse its discretion” in declining

“the issuance of a subpoena for highly classified government

14

documents[.]” So “we need not reach the Government’s

[sovereign-immunity] argument[.]”).

Littell v. Morton, 445 F.2d 1207, 1210 (4th Cir. 1971) (“We

consider first if the [statute] is applicable, because if it is not,

manifestly, we need not consider the question of sovereign

immunity.”).

Fifth Circuit:

Eberle v. Gonzales, 240 F. App’x 622, 629 n.3 (5th Cir. 2007)

(“Because we conclude that Eberle either failed to exhaust his

administrative remedies or failed to establish a prima facie case

of retaliation, we need not reach Defendants’ alternative

argument that the government has not waived sovereign

immunity . . ..”).

Sixth Circuit:

Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443 F.3d 469,

477 (6th Cir. 2006) (“[U]nder any circumstances in which the

State (or the United States) declines to raise sovereign immunity

as a threshold defense, we conclude that the federal courts have

discretion to address the sovereign-immunity defense and the

merits in whichever order they prefer.”).

Local 3-689, Oil, Chem. & Atomic Int’l Union v. Martin

Marietta Energy Sys., Inc., 77 F.3d 131, 138 n.11 (6th Cir. 1996)

(“[A]s it has already been decided that the requisite statutes do

not imply private rights of action, this court need not reach

whether the Energy Act waives sovereign immunity.”).

15

Seventh Circuit:

United States v. All Assets & Equip. of W. Side Bldg. Corp., 188

F.3d 440, 443 n.1 (7th Cir. 1999) (“Because the government did

not directly appeal this issue, we need not reach this thorny

question of sovereign immunity.”).

Merrill Tenant Council v. U.S. Dep’t of Hous. & Urb. Dev., 638

F.2d 1086,1091 n.7 (7th Cir. 1981) (“Because a penalty clause

is void in a contractual cause of action in Illinois, we do not

reach the issue of whether the waiver of sovereign immunity

extends to a penalty.”).

Eighth Circuit:

Zarcon, Inc. v. NLRB, 578 F.3d 892, 896 & n.3 (8th Cir. 2009)

(“[W]e reject Zarcon’s argument that the OPEN Government

Act should apply to this case[,]” so “it is unnecessary for us to

address the NLRB’s additional [sovereign-immunity] argument

. . ..”).

Hartman v. Lyng, 884 F.2d 1103, 1107 n.3 (8th Cir. 1989)

(“[W]e need not, and therefore do not, rule on the sovereign

immunity issue, given our conclusion that the district court did

not err in declining to award damages.”).

United Handicapped Fed’n v. Andre, 622 F.2d 342, 348 n.6 (8th

Cir. 1980) (“We find that plaintiffs were not prevailing parties

against federal defendants. Under the circumstances, we need

not pass on the question of sovereign immunity.”).

16

Ninth Circuit:

Olsen v. U.S. ex rel. Fed. Crop Ins. Corp., 334 F. App’x 834,

835 n.1 (9th Cir. 2009) (“In light of our determination that the

district court properly vacated the awards, we need not address

whether the government waived its sovereign immunity.”).

Foti v. McHugh, 247 F. App’x 899, 901 (9th Cir. 2007)

(“Because the government’s identification policy does not

violate Appellants’ constitutional rights, we need not address

whether the district court properly dismissed . . . on the basis

of sovereign immunity.”).

Castaneda v. U.S. Dep’t of Agric., 807 F.2d 1478, 1479 n.3 (9th

Cir. 1987) (“Because we affirm the dismissal of Castaneda’s

action on the merits, we need not resolve the dispute between

the parties as to whether the doctrine of sovereign immunity bars

his action against the USDA.”).

Lehner v. United States, 685 F.2d 1187, 1190 (9th Cir. 1982)

(“declin[ing] to decide” sovereign-immunity question where

plaintiff “failed to allege facts which, if proven, would entitle

her to relief”).

Tenth Circuit:

Watson v. United States, 485 F.3d 1100, 1111 n.9 (10th Cir.

2007) (Gorsuch, J.) (“Because we affirm the district court’s

holding that the government was not negligent in its care of Mr.

Lewis, we need not pass on . . . sovereign immunity[.]”).

17

Eleventh Circuit:

In re Gateway Radiology Consultants, P.A., 983 F.3d 1239,

1255 n.7 (11th Cir. 2020) (“Because we hold for the [U.S. Small

Business Administration] on the merits, we need not and do not

reach the sovereign immunity issue.”).

Federal Circuit:

Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348,

1358 (Fed. Cir. 2001); cf. Energy Nw. v. United States, 641 F.3d

1300, 1311 n.6 (Fed. Cir. 2011) (explaining that Bluebonnett

“rejected [the plaintiffs’] claim for inadequate proof” and “did

not take up the sovereign immunity question”).