Petition for Writ of Certiorari — Oklahoma Department of Public Safety v. United States

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Supreme Couct, US,

FILED

PBSITGEONTS

GRACE OF TRE CLERK

In The

Supreme Court of the United States

October Term, 1998

THE STATE OF OKLAHOMA, ex rel.

THE OKLAHOMA DEPARTMENT OF PUBLIC SAFETY,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

W.A. Drew EDMONDSON

Attorney General

JAMES ROBERT JOHNSON

Assistant Attorney General

Counsel of Record

JOHN K. LINDsEy

General Counsel

Department of Public Safety

Douc tas F. Price

Assistant Attorney General

Office of the Attorney General

4545 North Lincoln Blvd.

Room 260

Oklahoma City, Oklahoma 73105

405/521-4274

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

€

QUESTION PRESENTED

The Driver’s Privacy Protection Act of 1994 (the

“DPPA”) is a federal statute which directs States when

they may, may not, and must disclose certain “personal

information” from their motor vehicle records. In the face

of a request for information from these records, the DPPA

generally requires State employees to discers. whether the

information sought is “personal information” as defined

by the DPPA, and then, whether they may, may not, or

must satisfy the request under the detailed federal

scheme. The State of Oklahoma challenged the DPPA as a

violation of the Tenth Amendment because (a) it requires

States to administer a federally-created information dis-

closure scheme and (b) the scheme applies exclusively to

records developed and maintained by States without

imposing similar requirements on federal and private

sector sources of “personal information.” The District

Court agreed with the State of Oklahoma and struck

down the DPPA as a violation of the Tenth Amendment.

The Tenth Circuit, however, did not agree and reversed.

The question presented is:

Does the Driver’s Privacy Protection Act violate the

Tenth Amendment to the United States Constitution?

LIST OF PARTIES

Actual parties to the proceedings in the Court of

Appeals were:

The State of Oklahoma, ex rel. the Oklahoma Department

of Public Safety,

Petitioner herein.

The United States of America,

Respondent herein.

ili

TABLE OF CONTENTS

Page

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B. The Decision of the District Court........... 4

C. The Decision of the Tenth Circuit............ 5

REASONS FOR GRANTING THE WRIT ........... 6

I. THE DECISION OF THE TENTH CIRCUIT

COURT OF APPEALS IS IN CONFLICT WITH

THE DECISIONS OF THE FOURTH AND ELEV-

ENTH CIRCUIT COURTS OF APPEALS ....... 7

Il. THE CASE PRESENTS IMPORTANT CONSTI-

Es ao a kee sees hee eens cecsnese. 9

a 14

Es App. 1

TABLE OF AUTHORITIES

Page

CASES

Condon v. Reno, 155 F.3d 453 (4th Cir. 1998)..... 4,6, 7

E.E.0.C. v. Wyoming, 460 U.S. 226 (1983) ..... 4, 6, 8, 12

Garcia v. San Antonio Metropolitan Transit Authority,

ek errr err err rrrrr rr 4, 6, 8, 12

New York v. United States, 505 U.S. 144 (1992) ... passim

Printz v. United States, 117 S.Ct. 2365 (1997)..... passim

Pryor v. Reno, _. F.3d —. (Tith Cir. 1999)........... 6

Reno v. Condon, petition for cert. filed, 67 U.S. L.W.

Soe CUS. Wie TA SO ee 6 <vacesaxsecacnravccescess 9

South Carolina v. Baker, 485 U.S. 505 (1988) ...4, 6, 8, 12

STATUTES

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47 O.S.1991 and Supp.1997, Sec. 1-101, et seq......... 2

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51 O.S.1991 and Supp.1997, Sec. 24A.1, et seq. ....... 3

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TABLE OF AUT. RITIES — Continued

Page

CONSTITUTIONS

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PETITION FOR A WRIT OF CERTIORARI

Petitioner, the State of Oklahoma, ex rel. the Okla-

homa Department of Public Safety (“Oklahoma”),

respectfully prays that this Court grant a writ of cer-

tiorari to review the judgment of the United States Court

of Appeals for the Tenth Circuit entered on December 3,

1998.

—— 6

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit is reported at 161 F.3d 1266 (10th Cir.

1998). (Pet. App. 1) The Tenth Circuit’s denial of the

Petition for Rehearing With Suggestion for Rehearing En

Banc was issued on February 2, 1999 and is reprinted in

the Appendix to this Petition. (Pet. App. 33) The opinion

of the United States District Court for the Western Dis-

trict of Oklahoma is reported at 994 F. Supp. 1358 (W.D.

Okla. 1997). (Pet. App. 17)

JURISDICTION

The judgment of the United States Court of Appeals

for the Tenth Circuit was entered on December 3, 1998.

Oklahoma filed a timely Petition for Rehearing with Sug-

gestion for Rehearing En Banc, which was denied by

Order dated February 2, 1999. The jurisdiction of this

Court is invoked under 28 U.S.C. Sec. 1254(1).

ae a eT

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Tenth Amendment to the United States Constitu-

tion provides:

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.

The Driver’s Privacy Protection Act is reprinted in

the Appendix to this Petition.

STATEMENT OF THE CASE

A. Background and Facts

The enactment of the Drivers Privacy Protection Act

(the “DPPA”) undid, in one blow, the ability of the State

of Oklahoma (the “State”) to protect and uphold the

rights of residents of this State to have access to public

records of the State. The State acts upon its constitutional

mandate in which residents of the State of Oklahoma

maintain primary political authority. Okla. Const. Art. IL,

Sec. 1. The State Legislature has broad authority to legis-

late for the public health, safety and welfare. Okla. Const.

Art. V, Sec. 36. Under the police powers of the State, the

Oklahoma Legislature has enacted comprehensive legisla-

tion regulating the issuance, restriction and revocation of

drivers’ licenses, and the related public records there-

under. 47 O.S.1991 and Supp.1997, Sec. 1-101, et seq.

In furtherance of this constitutional framework, the

State maintains a strong policy favoring the public’s right

of access to state records. The Oklahoma Open Records

Act mandates that public bodies in Oklahoma provide

access to public records upon request and places the

burden upon public bodies to show specific authority to

maintain confidentiality before access can be denied. 51

O.S.1991 and Supp.1997, Sec. 24A.1, et seq. See, 51

O.S.Supp.1997, Sec. 24A.2. The Department of Public

Safety must comply with the Open Records Act because it

is a public body under the Open Records Act. 51

O.S.Supp.1997, Sec. 24A.3.

State policy requires the Oklahoma Department of

Public Safety to provide access to and copies of drivers’

license records of its licensees. 47 O.S.Supp.1997, Sec.

6-117.! The testimony of the Department of Public Safety

introduced at the hearing below was not contested by the

United States. The District Court noted that these records

include certain information covered by and prohibited

from disclosure by the Driver’s Privacy Protection Act.

(Pet App. 21-22) The United States has asserted that the

basis for the enactment of the DPPA, in part at least, was

the prevention of stalking by the closure of State drivers’

records. The DPPA places broad prohibitions against dis-

closure of drivers’ records of the State, but grants myriad

exceptions to the prohibitions, some permissive and some

mandatory. 18 U.S.C. Sec. 2721(b). The United States

asserted that the DPPA creates only a “permissible direc-

tive” and that the DPPA does not conscript states. It fails

to explain, however, why the State, a State agency and

State employees have any choice but to comply with the

1 Likewise, the State has enacted criminal sanctions to

prevent stalking, the asserted purpose of the DPPA. 21

O.S.Supp.1999, Sec. 1173.

DPPA when they are subject to civil and criminal penal-

ties for failure to comply. 18 U.S.C. Sec. 2723, 2724. There

is no indication in the record that States, any more than

the federal government itself, created the problems con-

sidered by Congress in enacting the DPPA or that the

DPPA will resolve to any extent the dangers posed by

stalkers.

B. The Decision of the District Court

The decision of the District Court, which was mark-

edly similar to the decision of the Fourth Circuit in Con-

don v. Reno, 155 F.3d 453 (4th Cir. 1998), was based on the

court’s determination of the applicability of New York v.

United States, 505 U.S. 144 (1992), and Printz v. United

States, 117 S.Ct. 2365 (1997), which the court recognized

prohibited Congress from requiring States to administer

or implement federal programs. (Pet. App. 27) The court

determined that the DPPA improperly commandeered the

State of Oklahoma to administer the federal program

created by the DPPA. The Court rejected the argument of

the United States that Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528 (1985), South Carolina v.

Baker, 485 U.S. 505 (1988) and E.E.O.C. v. Wyoming, 460

U.S. 226 (1983), allowed Congress to require compliance

by the State even though the law was not of general

applicability.2

* The United States raised no issue as to the Fourteenth

Amendment in the District Court, relegating the matter to one

cursory footnote.

——

The court determined the DPPA was, “like the statu-

tory provision at issue in New York, ‘a simple command to

state governments to implement legislation enacted by

Congress.’” (Pet. App. 27) As the court noted, “[t]he

options given to States under the DPPA are not truly

options.” (Pet. App. 27) The court determined that the

DPPA requires States to create and maintain systems to

enforce the federal law of non-disclosure. (Pet. App. 29)

In short, the DPPA “seeks to treat the Oklahoma Depart-

ment of Public Safety as a subdivision of the United

States.” (Pet. App. 29)

C. The Decision of the Tenth Circuit

The Tenth Circuit Court of Appeals reversed and

rejected the State’s argument that the DPPA improperly

commandeers the State. The Court asserted that the

DPPA does not require States to legislate, nor, according

to the Court of Appeals, does the DPPA conscript State

officials to enforce the law. The Court of Appeals noted

requirements of the DPPA for States to administer it,

saying, “[t]he Supreme Court has never suggested that

the Tenth Amendment bars Congress from regulating

state conduct merely because states are the only actors

engaged in certain activity.” (Pet. App. 12) While the

Court of Appeals was “cognizant of the Supreme Court's

‘trend’ established by New York and Printz of striking

down federal legislation which ‘commandeers’ state leg-

islative and administrative processes, the Court has yet

to hold that a federal law, which directly regulates

state activity and necessitates some legislative or

ee a

administrative action to achieve compliance, amounts to

unconstitutional ‘commandeering.’ ” (Pet. App. 15)

The Court of Appeals likewise rejected the deter-

mination of the District Court that New York and Printz

established the controlling principle. Instead, the Court of

Appeals ruled that Garcia, E.E.O.C. v. Wyoming, and South

Carolina v. Baker do not require that laws be of general

applicability before they may be imposed upon the States.

(Pet. App. 12) Rather, the Court of Appeals stated that the

idea of laws of general applicability, although providing a

“logical distinction” between the New York line of cases

and the Garcia line of cases, was not a factor that ulti-

mately mattered.

REASONS FOR GRANTING THE WRIT

As the Court of Appeals for the Tenth Circuit recog-

nized, its decision was in direct conflict with the decision

of the United States Court of Appeals for the Fourth

Circuit in Condon v. Reno, 155 F.3d 453 (4th Cir. 1998). This

division of authorities deepened with the April 6, 1999,

decision of the Eleventh Circuit finding the DPPA uncon-

stitutional, in Pryor v. Reno, __ F.3d __ (11th Cir. 1999).

(Pet. App. 35)

Additionally, this case is of great national impor-

tance. The decision of the Tenth Circuit Court of Appeals

is contrary to the expressions of this Court in Printz and

New York regarding laws aimed directly and exclusively

at the States. Congress may not conscript States and State

officers except where laws are of general applicability.

This limitation applies regardless of whether such laws

are otherwise valid exercises of Congress’ commerce

powers. The importance of the States’ sovereignty and

political accountability demands that Congress be limited

in regulating States as States, and this Court has so ruled.

In circumstances such as involve the DPPA, the Constitu-

tion does not contemplate the direct and exclusive regula-

tion of the State, an agency of the State, and State

employees, nor the usurpation of the State as a function-

ary of the federal government. The resolution of the

question presented in this case is of importance to all

States.

This case, among the several on this matter, presents

a particularly appropriate vehicle for review by this

Court. Oklahoma law regarding openness of its records

represents the majority view as regards public access to

State records. Further, this case presents a vehicle for

Supreme Court review that demonstrates the policy inter-

ests of a majority of the States, unlike the context of the

petition in Condon.

I. THE DECISION OF THE TENTH CIRCUIT COURT

OF APPEALS IS IN CONFLICT WITH THE DECI-

SIONS OF THE FOURTH AND ELEVENTH CIR-

CUIT COURTS OF APPEALS

While the issue presented in this petition is the same

as the issue raised in Condon v. Reno, 155 F.3d 453 (4th Cir.

1998), this case presents a better vehicle for review. The

Fourth Circuit correctly recognized the controlling

authority expressed by this Court in New York v. United

States, 505 U.S. 144 (1992), and Printz v. United States, 117

S. Ct. 2365 (1997), and ruled the DPPA violates the Tenth

Amendment, so the Fourth Circuit’s decision is due to be

aftirmed. In contrast, the Tenth Circuit departed from this

Court’s controlling precedent, so its decision should be

reversed.

On April 6, 1999, the Eleventh Circuit ruled the DPPA

violates the Tenth Amendment, noting expressly the con-

trary decision of the Tenth Circuit. (Pet. App. 50) The

court specifically noted the DPPA requires States to

administer and enforce its provisions. In recognizing the

controlling authority of Printz and New York, the Eleventh

Circuit rejected the argument of the United States that

Congress may command State officers to assist in the

implementation of federal law so long as Congress

devises a legislative program that regulates States

directly rather than by requiring States to regulate third

parties. The Eleventh Circuit noted that the cases cited by

the United States, Garcia, Baker, and E.E.O.C. v. Wyoming,

apply only when a “particularly strong federal interest

permits Congress to bring state governments within the

orbit of generally applicable federal regulation.” (Pet.

App. 46) Thus the Eleventh Circuit focused keenly on the

nexus between the cases argued by the United States and

those argued by the State of Oklahoma. In the context of

some significant federal interest expressed in a generally

applicable statute, the sovereignty of the States may have

to cede to federal authority. When, however, “the whole

object of the law [is] to direct the functioning of the state

executive, and hence to compromise the structural frame-

work of dual sovereignty, such a ‘balancing’ analysis is

inappropriate.” Id., citing Printz, 117 S. Ct. at 2383.

eee

The decisions of the Courts of Appeals are irreconcil-

able. The Seventh Circuit and Tenth Circuit have rejected

the arguments of the States that the DPPA violates the

Tenth Amendment. The Fourth Circuit and Eleventh Cir-

cuit have held the DPPA violates the Tenth Amendment.

The United States has filed its petition for certiorari on

the issues presented in regard to the DPPA, acknowledg-

ing that review by this Court is necessary. See, Reno v.

Condon, petition for cert. filed, 67 U.S. L.W. 3588 (U.S. Mar.

15, 1999) (No. 98-1464).

This issue is ready for this Court’s determination. All

Circuits within which challenges to the DPPA were filed

have now ruled. Further “percolation” of the issue is

unlikely to present another appellate ruling in the fore-

seeable future.

Il. THE CASE PRESENTS IMPORTANT CONSTITU-

TIONAL ISSUES

The constitutional issue presented in this petition is

whether Congress can regulate the States directly and

exclusively as States and thereby require the States, or

agencies or officers of the States, to implement, adminis-

ter or enforce a federal program. This Court has recog-

nized the great importance of Tenth Amendment

questions involving the authority of Congress to regulate

the affairs of the States:

[T]he task of ascertaining the constitutional line

between federal and state power has given rise

to many of the Court’s most difficult and cele-

brated cases. At least as far back as Martin v.

Hunter's Lessee, 1 Wheat. 304, 324 (1816), the

Court has resolved questions ‘of great impor-

tance and delicacy’ in determining whether par-

ticular sovereign powers have been granted by

the Constitution to the Federal Government or

have been retained by the States.

New York, 505 U.S. at 155.

This case presents issues just as important and deli-

cate, requiring resolution by this Court. The State of

Oklahoma asserts that this Court’s decisions in New York

and Printz expressed a clear limit upon Congress’ powers

to enact legislation which commandeers the States. As the

Court of Appeals clearly acknowledged, Congress may

not “require[ ] states either to legislate pursuant to Con-

gress’ direction, or to implement an administrative solution.

The [Supreme Court] emphasized that a state could not

decline to administer the program.” (Pet. App. 7)

(emphasis added) (citing New York, 505 U.S. at 176-77).

The Court of Appeals likewise noted this Court’s later

decision in Printz, which “held that the forced participa-

tion of a state’s executive offices in the actual administra-

tion of a federal program . . . was unconstitutional.” (Pet.

App. 8) (emphasis added) (citing Printz, 521 U.S. at __,

117 S.Ct. 2384).

It being undisputed that the Printz holding that

coerced administration is unconstitutional, the assertion

of the Court of Appeals that the Supreme Court “has yet

to hold that a federal law, which directly regulates state

activity and necessitates some state legislative or admin-

istrative action to achieve compliance, amounts to uncon-

stitutional ‘commandeering|[,]’” (Pet. App. 15) is

contradictory, at best. The DPPA can be seen only as

requiring States to implement and administer it. Indeed,

Lees iiaaiaa aii

while the federal government retained authority to pros-

ecute violations of the DPPA, the whole of the Act is

administered by the States. States must make the deter-

mination of who may receive records permissively. States

must comply with the mandatory disclosure provisions of

the DPPA. States must make policy decisions as to the

amount of resources to use in determining whether a

person requesting information qualifies for a mandatory

Or permissive exception.

Furthermore, the Court of Appeals’ statement that

“[t]he Supreme Court has never suggested that the Tenth

Amendment bars Congress from regulating state conduct

merely because states are the only actors engaged in a

certain activity[,]” (Pet. App. 12) does not withstand scru-

tiny. This Court in Printz struck down federal law com-

mandeering local chief law enforcement officers

(“CLEOs”). It was not disputed therein that CLEOs were

executive officers of local governments. In New York, this

Court struck down a “take title” provision regarding

nuclear waste which would have affected only state gov-

ernments. Certainly, it is implicit from New York and

Printz that the Tenth Amendment prohibits direct and

exclusive regulation of States by Congress.

There is no difference in the manner in which the

DPPA mandates the involvement of State officers and

employees in the administration of the DPPA and the

manner in which the Brady Act interim provisions man-

dated participation of CLEOs in Printz. States must divert

resources and personnel under the DPPA. States must

accept the political burden for the substantial monetary

costs to the States of the DPPA and will take the blame for

the shortcomings of the Act. The federal government gets

a fiscal and political windfall. In short, prohibitions this

Court propounded in Printz and New York control chal-

lenges to the DPPA.3

Not surprisingly, arguing before the Court of

Appeals, the United States sought its support from Garcia,

E.E.O.C. v. Wyoming, Baker, cases which saw no impermis-

sible constitutional infringement upon state sovereignty

in laws of general applicability.4 Yet, the general appli-

cability of the laws in those cases was the underpinning

for upholding those laws against the States. When laws

directly and exclusively regulated States as States, this

Court turned away from Garcia, E.E.0.C. v. Wyoming, and

Baker.

Thus, the conflict is presented. New York and, espe-

cially, Printz, speak to a fundamental reservation of sov-

ereignty of the States, by which Congress must respect

the limits imposed by the Tenth Amendment. The clarity

expressed in these cases and the bases upon which each

have application herein show that the DPPA is plainly

* In addition, the State’s determination that records

maintained by the State pertaining to State activities should be

available to the public is effectively repealed by operation of

federal law. )

* Baker held only that Congress may impose the same

obligations on States that it imposed on private bond issuers

and the federal government. Garcia held that Congress was

allowed to impose the same minimum wage and overtime

requirements on local transit authorities as were applied to

private employers and the federal government. Similarly,

E.E.O.C. v. Wyoming only imposed on the States the same

prohibitions against age discrimination applicable to the private

sector.

contrary to the limits of the Tenth Amendment. Despite

sufficient direction from this Court, the Court of Appeals

erred in overturning the proper ruling of the District Court.

The interest of the State in the protection of its sover-

eignty and its ability to remain responsive to its citizens

requires that this Court hold the DPPA unconstitutional.

The decision of the Tenth Circuit Court of Appeals admits

additional erosion of the Tenth Amendment through

which Congress may legislate at will over any area of

State concern, thereby allowing the enactment of a class

of laws which does nothing but directly and exclusively

control State affairs. The immediate result is the displace-

ment of important State policies. Here, the State of Okla-

homa has consistently sought to protect the ability of

citizens to be informed of the workings of their govern-

ment. Without the DPPA the State remains fully account-

able to its citizens in the release or failure to release State

records. The DPPA wholly undoes that.5 Printz and New

York simply do not indicate the Constitution has changed

so much or that the Court is prepared to acknowledge

such a radical expansion of the powers of Congress. The

State of Oklahoma seeks to determine that it may yet

control records created by the sovereign powers of the

State, for the use of the State, but open to the public by

the constitutional and statutory mandate of the State.

> The Eleventh Circuit observed that Congress “riddled the

Act with more holes than Swiss cheese. Through these holes

escaped most the of interstate commerce activity covered by the

Act.” (Pet. App. 41) Commercial interests are thereby protected

from the prohibitions of the act. It is only the right of citizens to

have access to government records which has been undone.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

W.A. Drew EDMONDSON

Attorney General

James Ropert JOHNSON

Assistant Attorney General

JOHN K. Linpsey

General Counsel

Department of Public Safety

Doucias F. Prics

Assistant Attorney General

Office of the Attorney General

4545 North Lincoln Blvd.

Room 260

Oklahoma City, Oklahoma 73105

405/521-4274

April, 1999

App. 1

STATE OF OKLAHOMA, ex rel

OKLAHOMA DEPARTMENT OF PUBLIC SAFETY,

Plaintiff-Appellee,

Vv.

UNITED STATES of America,

Defendant-Appellant.

No. 97-6389.

United States Court of Appeals,

Tenth Circuit.

Dec. 3, 1998.

James Robert Johnson, Assistant Attorney General

(Douglas F. Price, Assistant Attorney General, and John

K. Lindsey, General Counsel, Oklahoma Department of

Public Safety, with him on the brief), Oklahoma City,

Oklahoma, for Plaintiff-Appellee.

Mark B. Stern (Alisa B. Klein and Daniel Kaplan with

him on the brief), Appellate Staff, Civil Division, Depart-

ment of Justice, Washington, D.C. for Defendant-Appel-

lant.

Robin L. Rivett, Anne M. Hawkins, and Deborah ia

Fetra, Of Counsel, Pacific Legal Foundation, Sacramento,

California, filed an Amicus Curiae Brief in Support of

Plaintiff-Appellee.

Thomas H. Odom, Gregory S. Feder, and Marc R.

Baluda of Arter & Hadden LLP. Washington, D.C., Bill

Pryor, Attorney General, Billington M. Garrett, Assistant

Attorney General, and Jack Curtis, Assistant Attorney

General, Montgomery, Alabama, and William U. Hill,

Attorney General, Cheyenne, Wyoming, filed an Amicus

Curiae Brief in Support of Plaintiff-Appellee.

App. 2

Before ANDERSON, HOLLOWAY, and BALDOCK,

Circuit Judges.

BALDOCK, Circuit Judge.

In this case, Oklahoma’s open record laws and fed-

eral legislation preventing disclosure of information con-

tained in motor vehicle records are in conflict. The

Oklahoma Highway Safety Code, Okla. Stat. tit. 47, § 6-

117(H), and the Oklahoma Open Records Act, Okla. Stat.

tit. SI, § 24A.5, require that information about any indi-

vidual identified in the records of Oklahoma’s motor

vehicle department be available for public inspection for

a small fee. Any public official who willfully violates the

state's open records policy is subject to both criminal and

civil liability. Id. § 244.17. In contrast, subject to certain

enumerated exceptions, the Driver’s Privacy Protection

Act of 1994 (DPPA), Pub.L. No. 103-322, 108 Stat.

2099-2102 (effective Sept. 13, 1997) (codified at 18 U.S.C.

§§ 2721-2725), prohibits a state motor vehicle department

from knowingly disclosing “personal information” about

any individual obtained “in connection with a motor

vehicle record.” 18 U.S.C. § 2721(a). The DPPA authorizes

the Attorney General to assess a civil fine of up to $5,000

a day against any state motor vehicle department that

“has a policy or practice of substantial noncompliance”

with the DPPA. Id. § 2723(b). The DPPA also provides for

criminal fines and civil damages against any person who

knowingly violates its provisions. Id. §§ 2723(a) & 2724.

The state of Oklahoma filed suit challenging the

DPPA on its face as an unconstitutional infringement

upon state sovereignty. The question presented is

whether the DPPA is a valid exercise of congressional

a Tn a Ta ee

App. 3

power to which contrary state law must yield consistent

with constitutional principals of federalism and the Tenth

Amendment'’s reservation to the States of all “powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States.” U.S. Const. amend. X.

To protect the personal privacy and safety of licensed

drivers, see 138 Cong. Rec. H1785-01, Congress enacted

the DPPA which restricts the ability of third parties to

obtain personal information about individuals identified

in the records of state motor vehicle departments. The

first section of the DPPA provides:

(a) In general. — Except as provided in subsec-

tion (b), a State department of motor vehicles,

and any officer, employee, or contractor, thereof,

shall not knowingly disclose or otherwise make

available to any person or entity personal infor-

mation about any individual obtained by the

department in connection with a motor vehicle

record.

18 U.S.C. § 2721(a).! Subsection (b) of § 2721 requires a

State to disclose personal information in limited

' The DPPA defines “motor vehicle record” as “any record

that pertains to a motor vehicle operator’s permit, motor vehicle

title, motor vehicle registration, or identification card issued bya

department of motor vehicles.” The DPPA defines “personal

information” as that which “identifies an individual, including

an individual’s photograph, social security number, driver

identification number, name, address (but not the 5-digit zip

code), telephone number, and medical or disability information,

but does not include information on vehicular accidents, driving

violations, and driver’s status.” 18 U.S.C. § 2725(1) & (3).

App. 4

situations to carry out the purposes of federal and state

laws affecting motor vehicles. Subsection (b) also sets

torth fourteen exceptions to subsection (a)’s general pro-

hibition, each of which allow a state motor vehicle

department, in its discretion, to disclose personal infor-

mation in certain instances. Id. § 2721(b). Perhaps the

most notable of these is exception eleven, which is an

opt-out provision allowing a state to disclose an individ-

ual’s motor vehicle record -

if the motor vehicle department has provided in

a clear and conspicuous manner on forms for

issuance or renewal of operator’s permits, titles,

registrations, or identification cards, notice that

personal information collected by the depart-

ment may be disclosed to any business or per-

son, and has provided in a clear and

conspicuous manner on such forms an oppor-

tunity to prohibit such disclosures.

Id. § 2721(b)(11).?

In its complaint, the state of Oklahoma sought declar-

atory and injunctive relief, asking the district court to

declare the DPPA unconstitutional and enjoin its enforce-

ment. According to the state, the DPPA impairs the state’s

ability to manage its motor vehicle records by directing

the state to regulate the disclosure of motor vehicle infor-

mation in a specific manner. The state contends the DPPA

unconstitutionally “commandeers” the functioning of its

* The DPPA also places restrictions on the manner in which

third parties may use, sell, or otherwise re-disclose personal

information obtained pursuant to the DPPA’s exceptions. 18

U.S.C. § 2721(c).

———EEE——

App. 5

motor vehicle department by requiring the state to regu-

late a federal program. The United States defends the

DPPA on the basis that it does not direct the state to

regulate a federal program; rather the DPPA directly reg-

ulates the disclosure of state motor vehicle information

consistent with constitutional principles of federalism

and the Tenth Amendment.

The district court granted the state’s requested relief

and permanently enjoined the United States from enforc-

ing the DPPA in Oklahoma. The district court held that

the DPPA constituted an unconstitutional “command to

State governments to implement legislation enacted by

Congress.” Oklahoma v. United States, 994 F.Supp. 1358,

1363 (W.D.Okla.1997). The court reasoned:

The State of Okiahoma processes approximately

1 million requests for motor vehicle information

annually. .. . The system set forth in the DPPA

would require Oklahoma to train . . . [Oklahoma

Department of Public Safety] employees and the

employees in approximately 270 tag agencies

across the State on when and how records may

be released. Additionally, the State would be

required to monitor the tag agents to ensure

their compliance with the federal standards.

Id. at 1362. According to the district court, the DPPA

unlawfully required the state of Oklahoma to create and

maintain a system to enforce an unfunded federal man-

date. Id. at 1363. Our jurisdiction to review the district

court’s judgment arises under 28 U.S.C. § 1291. We

review de novo the district court’s determination of the

DPPA’s constitutionality, United States v. Bolton, 68 F.3d

396, 398 (10th Cir.1995), and reverse.

App. 6

In determining whether an Act of Congress is consti-

tutional on its face, we afford the legislation great defer-

ence. Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 69

L.Ed.2d 478 (1981). We begin with the presumption that

the challenged statute is constitutional. INS v. Chadha, 462

U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). We do

not question the wisdom of the statute. Id. “Once the

meaning of an enactment is discerned and its constitu-

tionality determined, the judicial process comes to an

end.” TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57

L.Ed.2d 117 (1978).

Ascertaining the constitutional line between federal

and state power is among the most difficult judicial tasks.

The Constitution confers certain enumerated powers

upon Congress. U.S. Const. Art. I. To the extent the

Constitution does not divest the states of certain powers,

they retain them. Thus, the Tenth Amendment “states but

a truism that all is retained which has not been surren-

dered.” United States v. Darby, 312 U.S. 100 124, 61 S.Ct.

451, 85 L.Ed. 609 (1941). To be sure, states retain a signifi-

cant amount of sovereign authority. See Garcia v. San

Antonio Metropolitan Transit Auth., 469 U.S. 528, 549, 105

S.Ct. 1005, 83 L.Ed.2d 1016 (1985). How much remains

uncertain. We therefore look to existing Supreme Court

precedent tor guidance as to the proper division between

tederal and state authority.

To support its argument that the DPPA is unconstitu-

tional, the state of Oklahoma relies principally on New

App. 7

York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120

L.Ed.2d 120 (1992), and Printz v. United States, 521 U.S. 98,

117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Both New York and

Printz set aside Acts of Congress on Tenth Amendment

grounds. The state argues that New York and Printz estab-

lish a broad prohibition against federal restrictions aimed

exclusively at state activity — a prohibition which, accord-

ing to the state of Oklahoma, sounds the death knell of

the DPPA.

In New York, the Court addressed the constitu-

tionality of the “take title” provision of the Low-Level

Radioactive Waste Policy Amendments Act of 1985. That

provision directed state legislatures either to enact laws

regulating the disposal of low level nuclear waste pro-

duced within their borders, or to take title to and posses-

sion of such waste with all its accompanying liability and

problems. A state’s failure to “choose” either alternative

would result in the state becoming liable for all damages

waste generators suffered as a result of the state’s inac-

tion. The Court held that the provision was inconsistent

with the division of authority between state and federal

governments because it commandeered the states’ legisla-

tive process by compelling them to enact or administer a

federal regulatory program. Id. at 174-177, 112 S.Ct. 2408.

In other words, the law effectively required states either

to legislate pursuant to Congress’ direction, or to imple-

ment an administrative solution. The Court emphasized

that a state could not decline to administer the program.

No matter which alternative the state chose, it was com-

pelled to follow Congress’ mandate. Id. at 176-77, 112

S.Ct. 2408. The Court concluded:

App. 8

No matter how powerful the federal interest

involved, the Constitution simply does not give

Congress the authority to require the States to

regulate. The Constitution instead gives Congress

the authority to regulate matters directly and to pre-

empt contrary state regulation. Where a federal

interest is sufficiently strong to cause Congress

to legislate, it must do so directly; it may not

conscript state governments as its agents.

Id. at 178, 112 S.Ct. 2408 (emphasis added).

Subsequent to New York, the Court again addressed

the proper division between state and federal authority in

Printz. Printz involved the constitutionality of certain

interim provisions of the Brady Handgun Violence Pre-

vention Act. Those provisions directed state and local law

enforcement officials to conduct background checks and

pertorm other tasks related to prospective handgun pur-

chasers. Relying on historical practice, the structure of

the Constitution, and its prior decisions, a sharply

divided Court held that the forced participation of a

state’s executive officers in the actual administration of a

federal program, albeit only temporarily, was unconstitu-

tional. Printz, 521 U.S. at ___, 117 S.Ct. at 2384. The Court

concluded:

We held in New York that Congress cannot com-

pel the States to enact or enforce a federal regu-

latory program. Today we hold that Congress

cannot circumvent that prohibition by conscript-

ing the State’s officers directly. The Federal Gov-

ernment may neither issue directives requiring

the States to address particular problems, nor

command the States’ officers, or those of their

political subdivisions, to administer or enforce a

App. 9

federal regulatory program. . . . [S]uch com-

mands are fundamentally incompatible with our

constitutional system of dual sovereignty.

Id. at 2384.

The United States asserts that New York and Printz do

not prohibit Congress from imposing restrictions directly

on state activity; rather they only prohibit Congress from

requiring states to enact or administer a federal regula-

tory program designed to address problems created by

third parties. The United States argues that the DPPA is

constitutional because it regulates state motor vehicle

departments by directing them to comply with federal

law. The DPPA does not require states or their agents to

regulate third parties by directing states to enforce fed-

eral law. Citing South Carolina v. Baker, 485 U.S. 505, 108

S.Ct. 1355, 99 L.Ed.2d 592 (1988), the United States sug-

gests the Tenth Amendment poses no bar to federal legis-

lation which regulates state activity directly.

Baker addressed the constitutionality of § 310(b)(1) of

the Tax Equity and Fiscal Responsibility Act of 1982

(TEFRA), which removed from federal income tax exemp-

tion interest earned on bearer bonds issued by state and

local governments. The question was whether § 310(b)(1)

violated the Tenth Amendment by compelling states to

issue bonds in registered form. Baker, 485 U.S. at 507-08,

108 S.Ct. 1355. Treating § 310(b)(i) as if it directly regu-

lated the states by prohibiting the issuance of bearer

bonds, the Court rejected South Carolina’s argument that

the law was invalid because it commandeered the state

fete mr A i mA tema

App. 10

legislative and administrative process by requiring states

to enact legislation authorizing and administering bond

registration. Id. at 513, 108 S.Ct. 1355. The Court rea-

soned:

Such ‘commandeering’ is... an inevitable con-

sequence of regulating a state activity. Any fed-

eral regulation demands compliance. That a

State wishing to engage in certain activity must

take administrative and sometimes legislative

action to comply with federal standards regulat-

ing that activity is a commonplace that presents

no constitutional defect.

Id. at 514-15, 108 S.Ct. 1355. With this background in

mind, we turn to a discussion of the DPPA.

Il.

Relying on New York and Printz, a divided panel of

the Fourth Circuit recently held that because the DPPA

was not a “generally applicable law,” “Congress did not

have authority under our system of dual sovereignty to

enact it.” Condon v. Reno, 155 F.3d 453, 463 (4th Cir.1998),

petition for rehearing filed October 16, 1998.* In Condon, the

Fourth Circuit read Garcia v. San Antonio Metropolitan

Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016

(1985), and its progeny (including Baker) to stand for the

proposition, purportedly endorsed in New York and

} On October 22, 1998, the Fourth Circuit ordered Plaintiffs

Condon and South Carolina to respond to the United States’

petition for rehearing with suggestion for rehearing en banc.

Plaintiffs filed their response on November 3, 1998. As of

today’s date, the United States’ petition remains pending.

App. 11

Printz, that Congress may only regulate the conduct of

state governments through laws of general applicability.

Condon, 155 F.3d at 461-62 & n. 5.4 According to the

Fourth Circuit, Congress may not regulate “States as

States.” Rather, “Congress may only subject states to leg-

islation that is also applicable to private parties.” Id. at

461 (citing New York, 505 U.S. at 160, 112 S.Ct. 2408).

Because the DPPA regulated only the disclosure of infor-

mation contained in state motor vehicle records and did

not regulate the disclosure of personal information con-

tained in private databases, the DPPA, like the laws in

New York and Printz, could not withstand Tenth Amend-

ment scrutiny. Condon 155 F.3d at 460-63.°

In his dissent, Judge Phillips rejected the majority's

conclusion that Congress lacks any authority to regulate

4In Garcia, the Court overruled the “traditional

governmental functions” test established in National League of

Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976),

and held that application of the Fair Labor Standards Act to

state and local governments did not unconstitutionally infringe

upon state sovereignty. The Court declined, however, “to

identify or define what affirmative limits the constitutional

structure might impose on federal action affecting States under

the Commerce Clause.” Garcia, 469 U.S. at 556, 105 S.Ct. 1005

See also EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75

L.Ed.2d 18 (1983) (upholding application of the ADEA to the

States).

° The question of the DPPA’s constitutionality currently is

pending in the Seventh and Eleventh Circuits. Travis v. Reno, 12

F.Supp.2d 921 (W.D.Wis.) (holding the DPPA unconstitutional),

appeal docketed, No. 98-2881 (7th Cir., filed July 27, 1998); Pryor v.

Reno, 998 F.Supp. 1317 (M.D.Ala.) (holding the DPPA

constitutional), appeal docketed, No. 98-6261 (11th Cir., filed April

2, 1998).

ieee tN

App. 12

the “States as States.” Id. at 469 (Phillips, J., dissenting).

According to Judge Phillips, the legislation at issue in

Garcia and subsequent cases relied on by the court “was

immune to Tenth Amendment challenge not so much-if at

all-because it applied equally to state and private actors

as because it directly regulated state activities rather than

using the ‘States as implements of regulation’ of third

parties.” Id. at 468 (quoting New York, 505 U.S. at 160, 112

S.Ct. 2408). In regulating states that choose to release

motor vehicle information to the public, Congress simply

exercised its power of preemption by requiring states to

release such information into the stream of commerce in a

manner Congress deemed appropriate.

Like Judge Phillips, we do not read Supreme Court

precedent as establishing a blanket rule that “Congress

may only subject state governments to generally applica-

ble law.” Condon, 155 F.3d at 461 (internal quotations

omitted). The Supreme Court has never suggested that

the Tenth Amendment bars Congress from regulating

state conduct merely because states are the only actors

engaged in certain activity.

Surely it is no basis for invalidating [the

DPPA]. .. that no private equivalent could be

found in the particular area of regulation.

Would the requirements of the DPPA really be

any less intrusive on state sovereignty interests

if they were part of broad privacy protections

involving private as well as public holders of

sensitive information?

Id. at 469 (Phillips, J., dissenting).

PS JEL EAD EEA

eee SS...

App. 13

To be sure, the Supreme Court has noted a logical

distinction between generally applicable laws, which inci-

dentally apply to states, and laws compelling States to

legislate or regulate in accordance with federal law.

Printz, 521 U.S. at ___, 117 S.Ct. 2365; New York, 505 U.S.

at 160, 112 S.Ct. 2408. Oppressive federal regulation that

“commandeers” a state’s sovereign functions is less likely

to arise where the law is aimed at both private and public

entities. This is so because generally applicable laws are

not aimed at uniquely governmental functions. Moreover,

laws affecting both private and public interests are sub-

ject to stricter political monitoring by the private sector.

See Vicki C. Jackson, Federalism and the Uses and Limits of

Law: Printz and Principle?, 111 Harv.L.Rev. 2180, 2207

(1998).

The Supreme Court’s “anticommandeering”

approach in New York and Printz reflects a legitimate

concern about federal government interference with state

government functions. But the arguments against the

DPPA are much less compelling than the arguments

against the statutes at issue in New York and Printz.

Unlike the federal statute in New York, the DPPA does not

commandeer the state legislative process by requiring

states to enact legislation regulating the disclosure of

personal information from motor vehicle records. Rather,

the DPPA directly regulates the disclosure of such infor-

mation and preempts contrary state law. See New York, 505

U.S. at 178, 112 S.Ct. 2408. If states do not wish to comply

with those regulations, they may stop disseminating

information in their motor vehicle records to the public.

In contrast, the statute in New York offered no such alter-

native to the states.

App. 14

Unlike the federal statute in Printz, the DPPA does

not conscript state officials to enforce federal law. Under

the DPPA, enforcement is the job of federal officials.

Unlike New York and Printz, the DPPA does not affect any

unique government function, such as the state legislative

process or state law enforcement activities. The dissem-

ination of personal information into the stream of com-

merce can in no sense be considered uniquely

governmental. See e.g., Fair Credit Reporting Act, 15

U.S.C. § 1681b; Video Privacy Protection Act, 18 U.S.C.

§ 2710. The DPPA neither limits a state’s ability to regu-

late in the field of automobile licensing and registration,

an exercise traditionally left to the states, nor restricts a

state’s ability to use motor vehicle information in its own

regulatory activities.

Our conclusion that the DPPA differs from the stat-

utes at issue in New York and Printz is buttressed by the

Supreme Court’s decision in Baker. The only provision of

TEFRA at issue in Baker was § 310(b)(1), which removed

the federal tax exempt status for bearer bonds issued by

state and local entities. Consequently, the provision

imposed a burden only on state and local governments.

In upholding § 310(b)(1), Baker rejected the notion that

the federal government may never force a state wishing

to engage in certain activity to take administrative or

legislative actions to comply with federal standards. 485

U.S. at 514-15, 108 S.Ct. 1355. In fact, the Court referred to

federal regulation of state activity as “a commonplace

that presents no constitutional defect.” Id. at 515, 108

SA. 1585.

In enacting the DPPA, Congress obviously curtailed

states’ prerogative to make choices respecting the release

——y a i i

App. 15

of motor vehicle information. No one claims that Con-

gress exceeded the scope of its power under the Com-

merce Clause in so doing. Nor has the Supreme Court

ever suggested that Congress impermissibly invades

areas reserved to the states under the Tenth Amendment

because it exercises its preemptive authority under the

Commerce Clause in a manner that displaces state law

and policy to some extent. The DPPA simply requires

states to make a choice, i.e. stop releasing personal infor-

mation from state motor vehicle records to the public, or

release such information consistent with the dictates of

the DPPA. See FERC v. Mississippi, 456 U.S. 742, 767-68 n.

30, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982) (upholding fed-

eral legislation that gave States “a choice between regu-

lating in conformity with federal requirements, or

abandoning regulation in a given field”).

While we are cognizant of the Supreme Court's trend

established by New York and Printz of striking down

federal legislation which “commandeers” state legislative

and administrative processes, the Court has yet to hold

that a federal law, which directly regulates state activity

and necessitates some state legislative or administrative

action to achieve compliance, amounts to unconstitu-

tional “commandeering.” If a precedent of the Supreme

Court (in this case Baker) “has direct application in a case,

yet appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the case

that directly controls, leaving to . . . [the Supreme Court]

the prerogative of overruling its own decisions.”

Rodriguez de Quijas v. Shearson/American Express, Inc., 490

U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).

Finding the logic in Baker controlling, we believe that any

App. 16

expansion of Tenth Amendment jurisprudence to invali-

date the DPPA is best left to the Supreme Court. At this

stage in Tenth Amendment jurisprudence, we find noth-

ing that requires us to invalidate the DPPA. We hold that

the DPPA constitutes a valid exercise of congressional

power.° The judgment of the district court is

REVERSED.

Tenth Amendment, we need not address the United States’

alternative argument that the DPPA may also be upheld as a

legitimate exercise of congressional power under § 5 of the

Fourteenth Amendment.

App. 17

Attachment A: Order and Judgment being reviewed

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, ex rel.,

THE OKLAHOMA DEPARTMENT

OF PUBLIC SAFETY,

"1V-97-1423-

Plaintiff, CIV-97-1423-R

)

V. ) (Filed Sep. 17, 1997)

)

THE UNITED STATES OF

AMERICA,

Defendant.

ORDER

This matter comes before the Court on the Applica-

tion for Preliminary Injunction, filed by Plaintiff, the State

of Oklahoma (“Oklahoma”), ex rel. the Department of

Public Safety (“DPS”). Plaintiff seeks an injunction pro-

hibiting Defendant, the United States of America, from

enforcing the Driver’s Privacy Protection Act of 1994

(“DPPA” or “the Act”), P.L. 103-322, §§ 300001-300003,

which was scheduled to take effect on September 13,

1997. Plaintiff contends that the Act, codified at 18 U.S.C.

§§ 2721-25 is unconstitutional. On September 15, 1997, the

Court issued an Order, wherein it granted Plaintiff’s

requested relief, noting that further elaboration would

follow. This Order disposes of all matters before the

Court.!

' The parties agreed that the Court’s decision with regard

to the preliminary injunction should also serve as a decision on

App. 18

BACKGROUND

The DPPA regulates the dissemination and use of

“personal information” contained in state motor vehicle

records.* Congress enacted the DPPA in 1994, alleging

concern for a perceived national problem, the widespread

availability of personal information from state motor

vehicle records. Congress enacted the DPPA in part to

combat the commercial practice of selling information

obtained via driver's license applications and motor vehi-

cle records. Congress also heard testimony that stalkers

and other criminals have used motor vehicle information

to locate their victims.

The DPPA took effect on September 13, 1997, and

prohibits “a State department of motor vehicles, and any

the merits of the action. The elements of a permanent injunction

and a preliminary injunction are similar, the sole exception

being that the movant must actually prevail, as opposed to

showing a likelihood of success on the merits, in order to receive

a permanent injunction. Therefore, the Court shall treat this as a

resolution on the merits.

The Court also notes that although this is a case of first

impression in both this district and this circuit, on September 11,

1997, the United States District Court for the District of South

Carolina, Columbia Division, the Honorable Dennis Shedd,

ruled that the DPPA violates the Tenth Amendment of the

United States Constitution.

* Under the DPPA, “ ‘personal information’ means

information that identifies an individual, including an

individual’s photograph, social security number, driver

identification number, name, address (but not the 5-digit zip

code), telephone number, and medical or disability information,

but does not include information on vehicular accidents,

driving violations, and driver's status.” 18 U.S.C. § 2725.

OC —— ,

App. 19

officer, employee, or contractor, thereof, [from] know-

ingly disclos[ing] or otherwise mak[ing] available to any

person or entity personal information about any individ-

ual obtained by the department in connection with a

motor vehicle record.” 18 U.S.C. § 2721(a).3 This prohibi-

tion, however, is not absolute. The DPPA sets forth speci-

fic exceptions to the prohibition. When a request is made

by an appropriate person for an appropriate purpose, as

defined by the statute, the state may disclose personal

information. 18 U.S.C. § 2721(b)(1)-(14).4 Additionally,

[a] State motor vehicle department may estab-

lish and carry out procedures under which the

department or its agents, upon receiving a

request for personal information that does not

fall within one of the exceptions in subsection

* The DPPA defines “motor vehicle record” as “any record

that pertains to a motor vehicle operator’s permit, motor vehicle

title, motor vehicle registration, or identification card issued by

a department of motor vehicles.” 18 U.S.C. § 2725(1).

* The permissible exceptions permit disclosure for use by

government agencies, for use in connection with motor vehicle

safety and theft, emissions, recalls, advisories, market research

activities, for use by a legitimate business to verify the accuracy

of personal information submitted by employees or contractors,

for use in court or administrative proceedings, for use in

research, so long as not published, for use by insurers, for use in

providing notice to owners of towed vehicles, for use by private

investigators, so long as the intended use is also permissible, for

use by employer or insurer with regard to commercial drivers’

license, for use in connection with the operation of private toll

facilities, for use by a requester who has the written consent of

the person whose information is sought and for any use

authorized by the State that holds the record, if the use relates to

the operation of a vehicle or public safety.

App. 20

(b), may mail a copy of the request to the indi-

vidual about whom the information was

requested, informing such individual of the

request, together with a statement to the effect

that the information will not be released unless

the individual waives such individual’s right to

privacy under this section

18 U.S.C. § 2721(d).

Prohibitions and limitations also extend to those per-

sons who seek or receive information from state motor

vehicle records. “It shall be unlawful for any person

knowingly to obtain or disclose personal information,

from a motor vehicle record, for any use not permitted

under section 2721(b) of this title.” 18 U.S.C. § 2722(a).

Furthermore, “[i]t shall be unlawful for any person to

make false representation to obtain any personal informa-

tion from an individual's motor vehicle record.” 18 U.S.C

§ 2722(b).

Violation of the DPPA by either a State or Individuals

carries a price. “A person who knowingly violates this

chapter shall be fined under this title.” 18 U.S.C.

§ 2723(a).° Civil remedies, including actual and punitive

damages, as well as attorneys’ fees, are available against

any person who knowingly violates the Act. 18 U.S.C.

§ 2724. Furthermore, “[a]ny State department of motor

vehicles that has a policy or practice of substantial non-

compliance with this chapter shall be subject to a civil

penalty imposed by the Attorney General of not more

° “Person” is defined by the Act as “an individual,

organization or entity, but does not include a State or agency

thereof.” 18 U.S.C. § 2725(2).

App. 21

than $5,000 a day for each day of substantial noncom-

pliance.” 18 U.S.C. § 2723(b).

Oklahoma law currently provides that motor vehicle

| records are public record. The Department of Public

Safety is required by Okla. Stat. tit. 47 § 6-117 to retain

and file every application for a license it receives. It must

note whether the application is granted or denied; and if

denied, the basis thereof. All suspensions and revocations

of licenses must be recorded, along with the reason for

such action.

The Department of Public Safety or any motwi

license agent upon request shall prepare and

furnish a summary to any person of the traffic

record of any person subject to the provisions of

the motor vehicle laws of this state. Said sum-

mary shall include the enumeration of any

motor vehicle accidents, reference to convictions

for violations of motor vehicle laws, and any

action taken against the person’s privilege to

operate a motor vehicle, as shown by the files of

the Department for the three (3) years preceding

the date of the request.

Okla. Stat. tit. 47 § 6-117(H). Motor vehicle records are

also covered by the Oklahoma Open Records Act, which

requires public access and imposes criminal penalties and

civil liability on those public officials and public bodies

who fail to comply. Okla. Stat. tit. 51 § 24A.17. Oklahoma

law conflicts, in many regards, with the DPPA.®

asserted that the State of Oklahoma lacks standing to challenge

the DPPA, because the DPPA does not conflict with Oklahoma

law. Defendant contends that Oklahoma law does not mandate

App. 22

Oklahoma challenges the constitutionality of the

DPPA, arguing that it violates the Tenth Amendment, the

Eleventh Amendment, and that Congress has exceeded

the scope of its authority under the Commerce Clause.

The Court finds that the DPPA violates that [sic] Tenth

Amendment, and therefore no reason exists for the Court

to consider Plaintiff's alternative arguments at this time.

See Clinton v. Jones, 117 S.Ct. 1636, 1642 n. 11 (1997); New

York v. United States of America, 505 U.S. 144, 184 (1992).

DISCUSSION

Whenever called upon to judge the constitu-

tionality of an Act of Congress — ‘the gravest

and most delicate duty that this Court is called

upon to perform,’ Blodgett v. Holden, 275 US.

142, 148 [48 S.Ct. 105, 107, 72 L.Ed. 206] (1927)

(Holmes, J.) - the Court accords ‘great weight to

the decisions of Congress.’ Columbia Broadcasting

System, Inc. v. Democratic National Committee, 412

the disclosure of information that must, under the terms of the

DPPA, remain confidential. The Court notes, however, that

based on the testimony of Bill Bruce, that the disclosure of

certain items, such as drivers’ license applications, would result

in the disclosure of a person’s address, which is personal

information protected by the DPPA. Additionally, revealing a

motor vehicle record, which can be obtained by providing a

person’s name and date of birth, would result in violation of the

DPPA, because the person’s driver’s license number would be

revealed. In some instances revealing the driver’s license

number is also revelation of the person’s social security number,

as often they are one in the same. Either way, the DPPA would

be violated. The United States’ argument that Oklahoma law

does not directly conflict with the DPPA is without merit; and

the Court finds that the State has standing to pursue this action.

App. 23

U.S. 94, 102 [93 S.Ct. 2080, 2086, 36 L.Ed.2d 772]

(1973). The Congress is a coequal branch of gov-

ernment whose Members take the same oath we

do to uphold the Constitution of the United

States. As Justice Frankfurter noted in Joint Anti-

Fascist Refugee Committee v. McGrath, 341 U.S.

123, 164 [71 S.Ct. 624, 644, 95 L.Ed. 817] (1951)

(concurring opinion), “we must have due regard

to the fact that this Court is not exercising a

primary judgment but is sitting in judgment

upon those who also have taken the oath to

observe the Constitution and who have the

responsibility for carrying on government.”

Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 2651, 69

L.Ed.2d 478 (1981). Loyal to this obligation, the Court

presumes that the challenged statute is valid. I.N.S. v.

Chadha, 462 U.S. 919, 944 (1983).

The State of Oklahoma contends that Congress has

exceeded its authority and thereby violated the Tenth

Amendment in enacting the DPPA, because the Act man-

dates that States invoke a federal regulatory scheme with

regard to their own records.” The State relies on two

opinions of the Supreme Court in support of its argu-

ments, New York v. United States, 505 U.S. 144, 112 S.Ct.

2408, 120 L.Ed. 120 (1992) and Printz v. United States, __

U.S. __, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). In both of

these cases, the Supreme Court held statutes unconstitu-

tional as violative of the Tenth Amendment.

’ The Tenth Amendment provides: “The powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people.”

App. 24

The United States contends that these cases are inap-

plicable, and steers the Court toward three other

Supreme Court cases, Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528 (1985); South Carolina v. Baker, 485 U.S.

505 (1988); and E.E.O0.C. v. Wyoming, 460 U.S. 226 (1983).

The United States argues that the Act does not violate the

principles of dual sovereignty, but rather than the Act is

mere direct regulation of those States that choose to dis-

seminate personal information. Expectedly, the State con-

tends that these cases are inapposite and not controlling.

The Court concurs with the State and finds that New York

and Printz are controlling.

In New York, the Supreme Court considered the con-

stitutionality of Congressional regulation of radioactive

waste, undertaken in certain provisions of the Low-Level

Radioactive Waste Policy Amendments of 1985. The

Court agreed that Congress possessed the authority

under the Commerce Clause® to regulate the interstate

waste disposal market; however, the Court found that the

manner chosen for such regulation exceeded congres-

sional authority under the Tenth Amendment. The Court

found that Congress impermissibly sought to use States

as implements of regulation.

“No matter how powerful the federal interest

involved, the Constitution simply does not give Congress

the authority to require the States to regulate.” Id. at 178.

After examining its prior cases involving federal encour-

agement of state action, including FERC v. Mississippi, 456

® The Commerce Clause provides that Congress has the

power “[t]o regulate Commerce . . . among the several States.”

Art. I., § 8, cl. 3.

App. 25

U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982), and Hodel

v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452

U.S. 264, 288, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), the

Court held that a particular provision in the law under

consideration was unconstitutional, because it attempted

to employ the state government as a federal regulatory

agency. The law did not merely provide encouragement,

it mandated, by providing a Hobson’s choice, that State’s

participate in the federal regulatory scheme.? The same

can be said here.

The Supreme Court relied in large part on the intent

of the Framers of the Constitution, who chose a system by

which “Congress would exercise its legislative authority

directly over individuals rather than over States.” Id., at

165. “[E]ven where Congress has the authority under the

Constitution to pass laws requiring or prohibiting certain

acts, it lacks the power directly to compel the States to

* The Court ruled that the “take title” provision of the act

was unconstitutional under the Tenth Amendment, and noted

the following.

The take title provision offers state governments a

‘choice’ of either accepting ownership of waste or

regulating according to the instructions of

Congress. . . . Because an instruction to state

governments to take title to waste, standing alone,

would be beyond the authority of Congress, and

because a direct order to regulate, standing alone,

would also be beyond the authority of Congress, it

follows that Congress lacks the power to offer the

States a choice between the two. ... A choice between

two unconstitutionally coercive regulatory

techniques is no choice at all.

Id., at 175-76.

App. 26

require or to prohibit those acts.” Id. Congress may

encourage States to regulate in a particular manner and

may offer incentives to do so; however, it may not coerce

States.

The Court continued by noting that Congress has

authority under the Commerce Clause to regulate private

activity and may offer States the choice of regulating

according to federal standards or having their lesser stan-

dards preempted. This authority allowed Congress to

enact legislation such as the Clean Water Act, 33 U.S.C.

§§ 1251-1387, the Occupational Safety and Health Act of

1970, 29 U.S.C. §§ 651-678, and the Resource Conserva-

tion and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987. Id.

at 168. The Court explained that Congress may regulate

in this manner, because States are left with a choice as to

whether or not they will comply by enacting their own

regulations, based on Federal standards, or whether their

less stringent regulations will be trumped. However,

under the DPPA, States are not given any choice. They

must comply or face fines from the Attorney General.

The DPPA requires both that States comply with the

confidentiality requirements, and that States put in place

methods for ensuring that information is not provided

improperly. The only method for avoiding the adminis-

trative entanglement created by the DPPA, is to “opt-out”

under § 2721(b){11) and (b)(12), both of which require

that the State ensure that every person applying for or

renewing a license or title registration be given the

opportunity to prevent disclosure of personal informa-

tion. The State of Oklahoma processes approximately 1

million requests for motor vehicle information annually,

and few of these requests, if any, are for bulk information.

App. 27

The system set forth in the DPPA would require Okla-

homa to train DPS employees and the employees in

approximately 270 tag agencies across the State on when

and how records may be released. Additionally, the State

would be required to monitor the tag agents to ensure

their compliance with the federal standards.

Unlike the cases cited by the United States, the DPPA

is not a law of general applicability, such as the Fair

Labor Standards Act, Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528 (1985), the Tax Equity and Fiscal

Responsibility Act of 1982, South Carolina v. Baker, 485

U.S. 505 (1988), or the Age Discrimination in Employment

Act, E.E.0.C. v. Wyoming, 460 U.S. 226 (1983). The United

States argues that the law applies to both States and to

persons receiving information from motor vehicle

records, and therefore, the law is one of general appli-

cability. However, even cursory review of the statute

indicates that it is directed at States. The first sentence

states that the Act applies to “a State department of

motor vehicles, and any officer, employee, or contractor

thereof.” Although the law also prevents individuals

from disseminating information received from the State,

the law is directed not at the individuals, but at the State.

The DPPA is, like the statutory provision at issue in

New York, “a simple command to state governments to

implement legislation enacted by Congress. As we have

seen, the Constitution does not empower Congress to

subject state governments to this type of instruction.” Id.,

at 176. The options given to States under the DPPA are

riot truly options. “A State may not decline to administer

the Federal Program. No matter which path the State

chooses, it must first follow the direction of Congress.”

App. 28

As noted by the State of Oklahoma, the Department of

Public Safety Employees and the tag agents authorized by

the State of Oklahoma are, under the DPPA, conscripted

by the federal government for purposes of enacting the

DPPA. As shown in New York, this is impermissible. Id. at

178.

The State of Oklahoma also relies on Printz, wherein

the Supreme Court held that certain provisions of the

“Brady Act,” directed at handgun control, exceeded Con-

gress’ authority under the Tenth Amendment. The “Brady

Act” temporarily required the chief law enforcement offi-

cer (“CLEO”) of certain locales to assist in the processing

of permits for gun ownership. Upon receipt of a “Brady

form,” CLEOs were required to make efforts to determine

whether the proposed sale was lawful.

The Court again turned to its history and the Framers

for consideration of the interplay between the dual sover-

eignties of Federal and State government. The Court con-

cluded, as it had in New York, that “[t]he Federal

Government may not compel the States to implement, by

legislation or by executive action, federal regulatory pro-

grams. Id., at 2380 (emphasis added).

In Printz, the United States argued that it was per-

missible for Congress to command state officials to assist

in implementing federal law, so long as Congress does

not compel States to make laws in their sovereign capaci-

ties. Id. The Supreme Court rejected the argument, as

does this Court. “The federal Government may neither

issue directives requiring States to address particular

problems, nor command the States’ officers, or those of

their political subdivisions to administer or enforce a

App. 29

federal regulatory program.” Id. at 2384. This, however, is

exactly what the DPPA attempts to do. It requires State

motor vehicle agencies to create and maintain systems to

enforce the federal law of non-disclosure. The DPPA falls

squarely within the prohibitions of Printz.

The United States argues that the DPPA merely

requires that States conform their conduct to federal stan-

dards. States are, under the DPPA, not required to enact

any legislation in order to comply. However, the States

are required to create and implement systems whereby

those persons seeking information for a proper purpose,

as defined by the Federal statute, are permitted access.

The statutory scheme does not allow States any other

manner of compliance and prevents, in many cases, the

dissemination of personal information.

States are not mere political subdivisions of

the United States. State governments are neither

regional offices nor administrative agencies of

the Federal Government. The positions occupied

by state officials appear nowhere on the Federal

Government’s most detailed organizational

chart. The Constitution instead “leaves to the

several states a residuary and inviolable sover-

eignty.’

New York, 505 U.S. at 188 (quoting The Federalist No. 39,

p. 245 (C. Rossiter ed. 1961)). The DPPA however, seeks

to treat the Oklahoma Department of Public Safety as a

subdivision of the United States. The Act, focusing on

information gathered by the State, from its citizens, seeks

to dictate when and to whom information may be

released. The law is not one of general applicability and it

Se ee

App. 30

is not a permissible undertaking given the limitations

imposed on Congress by the Tenth Amendment.

In enacting the DPPA, Congress exceeded its limits

under the Tenth Amendment. The power that Congress

sought to exercise by dictating when and how States may

disclose personal information from driver’s license

records is a power “not delegated to the United States by

the Constitution, nor prohibited by it to the States, [and

such power is therefore] reserved to the States.” U.S.

Const. amend. X. Accordingly, the Act is unconstitutional.

As noted throughout this Order, the State has estab-

lished that if the United States is not enjoined from

enforcing this law, that it will suffer irreparable harm. A

fine of $5,000 per day may be imposed by the Attorney

General if the State has a policy of releasing information

that is not in substantial compliance with the DPPA. The

State has established that its laws conflict with the DPPA,

and that following its own law would likely result in

imposition of the fine. Given that approximately 95,000

records are disseminated from over 270 sites across the

state each month, the harm that Oklahoma would suffer

without an injunction is great. The United States pre-

sented no evidence to rebut the testimony of Bill Bruce,

and the Court finds that Oklahoma is entitled to an

injunction on this basis.

The sole remaining elements are whether the injunc-

tion would substantially injure the United States, and

whether the public interest would be furthered by the

imposition of an injunction. Tri-State Generation and Trans-

mission Ass’n, Inc. v. Shoshore River Power, Inc., 805 F.2d

351, 355 (10th Cir. 1986) (citing Lundgrin v. Claytor, 619

App. 31

F.2d 61, 63 (10th Cir. 1980)). In responding to the Applica-

tion, Defendant does not contradict the State’s assertions

that the United States will not be injured by the imposi-

tion of any injunction. It contends, however, that Okla-

homa fails to establish that the public interest will be

furthered by imposition of an injunction. Defendant

argues that in light of the testimony presented to Con-

gress that murderers and other criminals use motor vehi-

cle records to locate victims, that the public interest will

be negatively impacted by imposition of an injunction.

The Court finds, however, that the public interest in the

sovereignty of the State and in access to records under

Oklahoma statute will be served by imposition of an

injunction.

CONCLUSION

For the reasons stated herein, the Court finds that the

DPPA violates the Tenth Amendment of the United States

Constitution, as it exceeds the scope of Congress’ author-

ity. Accordingly, Plaintiff’s request for permanent injunc-

tive relief is hereby GRANTED.

It is so ordered this 17th day of September, 1997.

/s/ David L. Russell

DAVID L. RUSSELL

CHIEF UNITED STATES DISTRICT JUDGE

App. 32

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, ex rel.,

THE OKLAHOMA DEPARTMENT

OF PUBLIC SAFETY,

Plaintiff, CIV-97-1423-R

)

¥. ) (Filed

THE UNITED STATES OF ) Sep. 17, 1997)

AMERICA,

)

Defendant.

JUDGMENT

Judgment is hereby entered in favor of Plaintiff.

It is so ordered this 17th day of September, 1997.

/s/ David L. Russell

DAVID L. RUSSELL

CHIEF UNITED STATES

DISTRICT JUDGE

ENTERED ON JUDGMENT

DOCKET ON 9-17-97

EEE ——E——

App. 33

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF OKLAHOMA, ex rel

Oklahoma Department of

Public Safety, No. 97-6389

Plaintiff-Appellee, (D.C. No.

‘ CIV-97-1423-R)

(W.D. Okla.)

UNITED STATES OF AMERICA,

Defendant-Appellant.

ee eee eee ee

ORDER ON PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

(Filed Feb. 2, 1999)

Before ANDERSON, HALLOWAY, and BALDOCK, Cir-

cuit Judges.

Before the court is Plaintiff State of Oklahoma’s Peti-

tion for Rehearing and Suggestion for Rehearing En Banc.

Also before the court is the Unopposed Motion of Amici

Curiae, The States of Alabama And Wyoming, And Better

Government Bureau, Inc., For Leave To File A Memoran-

dum In Support Of Petition For Rehearing And Sugges-

tion For Rehearing En Banc.

Upon due consideration, the Motion of Amici Curiae,

the States of Alabama and Wyoming, and Better Govern-

ment Bureau is ALLOWED. Upon further consideration

of Plaintiff’s Petition and the Memorandum of Amici

App. 34

Curiae, Plaintiff State of Oklahoma’s Petition for Rehear-

ing is DENIED.

In accordance with Fed. R. App. P. 35(b), the clerk

transmitted Plaintiff’s Suggestion for Rehearing En Banc

to all the judges of the court in regular active service. No

member of the panél and no judge in regular active

service having requested a poll on the suggestion for

rehearing en banc, Plaintiff’s suggestion for rehearing en

banc is DENIED.

SO ORDERED.

Entered for the Court,

Bobby R. Baldock

Circuit Judge

EEE —E—

App. 35

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

U.S. COURT OF APPEALS

No. 98-6261

D.C. Docket No. CV-97-D-1396-N

BILL PRYOR, Attorney General

for the State of Alabama,

STATE OF ALABAMA,

Plaintiffs-Appellants,

versus

JANET RENO, Attorney General

of the United States, UNITED

STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Alabama

(Filed April 6, 1999)

Before TJOFLAT, Circuit Judge, GODBOLD and HILL,

Senior Circuit Judges.

HILL, Senior Circuit Judge:

Plaintiffs, Bill Pryor, Attorney General for the State of

Alabama, and the State of Alabama (referred to collec-

tively as Alabama or “the State”), sought a declaratory

judgment that the Driver’s Privacy Protection Act of

App. 36

1994, 18 U.S.C. §§ 2721-25, is unconstitutional under both

the Tenth and Eleventh Amendments to the United States

Constitution, and an injunction prohibiting the defen-

dants Janet Reno and the United States from enforcing

the Act in whole or in part. The district court entered

summary judgment for the United States, from which

Alabama appeals.

The Driver’s Privacy and Protection Act of 1994

(“DPPA” or “the Act”), 18 U.S.C. §§ 2721, et seq., regu-

lates the sale, dissemination and use by the State and

private individuals of personal information! contained in

the State’s motor vehicle records.2 The Act prohibits “a

State department of motor vehicles, and any officer,

employee, or contractor, thereof, [from] knowingly dis-

clos[ing] or otherwise mak[ing] available to any person or

entity personal information about any individual

1 Section 2725(3) of the act defines personal information as:

information that identifies an individual, including

an individual’s photograph, social security number,

driver identification number, name, address (but not

the five-digit zip code), telephone number, and

medical or disability information, but does not

include information on vehicular accident, driving

violations, and driver’s status.

2 Section 2725(1) of the Act defines a “motor vehicle

record” as:

any record that pertains to a motor vehicle operator's

permit, motor vehicle title, motor vehicle registration,

or identification card issued by a department of

motor vehicles.

App. 37

obtained by the department in connection with a motor

vehicle record.” 18 U.S.C. § 2721(a). It makes it unlawful

for a State department of motor vehicles [DMV], and any

officer, employee, or contractor thereof, to knowingly

disclose or otherwise make available personal DMV

information for any purpose other than a “permissible

use.” 18 U.S.C. § 2721(b). State departments of motor

vehicles with a “policy or practice of substantial noncom-

pliance” with the Act’s provisions are subject to a civil

penalty of up to $5,000 a day for each day of substantial

noncompliance, to be imposed by the United States Attor-

ney General. 18 U.S.C. § 2723(b). Persons who knowingly

violate the Act are subject to criminal fines. 18 U.S.C.

§ 2723(a).

Reversing course, the Act then allows disclosure of

personal information in abundant circumstances. 18

U.S.C. § 2721(b). For example, the Act requires that such

information be disclosed for use in matters of motor

vehicle or driver safety and theft, motor vehicle emis-

sions, motor vehicle product alterations, recalls, or advi-

sories, performance monitoring of motor vehicles and

dealers by motor vehicle manufacturers, and removal of

non-owner records from the original owner records of

motor vehicle manufacturers to carry out the purposes of

titles I and IV of the Anti Car Theft Act of 1992, the

Automobile Information Disclosure Act, the Clean Air

Act, and chapters 301, 305, and 321-331 of title 49. 18

U.S.C. § 2721(b) (citations omitted). It further provides

that personal information may be disclosed for use by any

government agency in carrying out its functions, id.

§ 2721(b)(1); in connection with car or driver safety, theft

and other motor-vehicle related matters, id. § 2721(b)(2);

— iii iii

App. 38

for use in the normal course of business by a legitimate

business in certain instances, id. 2721(b)(3); for use in

connection with any civil, criminal, administrative or

arbitral proceedings in any Federal, State, or local court

or agency or before any self-regulatory body, id.

§ 2721(b)(4); for use jn research activities, and for use in

producing statistical reports, so long as the personal

information is not published, redisclosed, or used to con-

tact individuals, id. § 2721(b)(5); for use by ai insurer or

insurance support organization, or by a self-insured

entity, or its agents, employees, or contractors, in connec-

tion with claims investigation activities, anti-fraud activ-

ities, rating or underwriting, id. § 2721(b)(6); for use in

providing notice to owners of towed or impounded vehi-

cles, id. § 2721(b)(7); for use by a licensed private investi-

gative agency or licensed security service for any purpose

permitted under the Act, id. § 2721(b)(8); for use by an

employer or its agent or insurer to obtain or verify

required information relating to a holder of a commercial

driver’s license, id. § 27221(b)(9); and for use in connec-

tion with the operation of private toll transportation facil-

ities, id. § 2721(b)(10).

The DPPA also regulates private individuals’ sale or

disclosure of the above information. The Act prohibits

authorized recipients of personal DMV information from

reselling or redisclosing personal information for a use

which the State could not have disclosed it in the first

place. 18 U.S.C. § 2721(c); 18 U.S.C. § 2722(a). The Act

requires that individuals reselling or redisclosing per-

sonal information for a permissible use keep records for

five years stating to whom they have resold or redis-

closed the information and the purpose of any such

App. 39

release, and must make these records available to the

state department of motor vehicles upon request. 18

U.S.C. § 2721(c). The Act also bars any person from

knowingly obtaining personal DMV information for any

unauthorized use, 18 U.S.C. § 2722(a), and from obtaining

personal information “by false representation,” 18 U.S.C.

§ 2722(b). Individuals who knowingly violate these provi-

sions are subject to criminal fines, 18 U.S.C. § 2723(a), and

private rights of action by the person to whom the per-

sonal information pertains. 18 U.S.C. § 2724.

In addition to the exceptions noted above, the Act

allows States to establish waiver procedures to handle

requests for disclosures that do not fall within these

exceptions. 18 U.S.C. § 2721(d). The DPPA allows States

to release personal information for any use not included

in the Act’s list of permissible uses, if the motor vehicle

department provides individuals an opportunity to pro-

hibit such disclosure. 18 U.S.C. § 2721(b)(11). Also,

departments of motor vehicles are permitted to release

personal information for “bulk distribution” for surveys,

marketing or solicitations if individuals have an oppor-

tunity to prohibit such disclosures. 18 U.S.C.

§ 2721(b)(12).

Alabama contends that Congress exceeded its author-

ity under the Tenth and Eleventh Amendments when it

enacted the DPPA. The State contends that the DPPA is an

unconstitutional federal directive requiring it to adminis-

ter a federal program in violation of the Tenth Amend-

ment. The State further contends that the penalties

imposed by the Act for noncompliance violate the Elev-

enth Amendment. The United States counters that the Act

is a constitutional exercise of Congress’ power under the

App. 40

Commerce Clause of the United States Constitution to

regulate and control the dissemination of personal infor-

mation in state DMV records in order to protect the

privacy and safety of individuals. On cross-motions for

summary judgment,} the district court held that the Act is

a valid exercise of Congress’ authority to regulate inter-

state commerce, and that it violates neither the Tenth nor

the Eleventh Amendment. Alabama appeals from the

entry of this judgment.

Il.

Alabama asserts that the DPPA violates the Tenth

Amendment in two ways. First, Alabama contends that

the Commerce Clause does not authorize Congress to

invade the Tenth Amendment by regulating the States’

dissemination of motor vehicle information. Second, Ala-

bama contends that the Tenth Amendment prohibits Con-

gress from requiring it to administer a federal program.

1. Congress’ Authority to Enact the DPPA

Alabama argues that Congress exceeded its authority

in regulating the States’ release of motor vehicle informa-

tion because the dissemination of this information is nei-

ther commerce, nor an activity substantially affecting

commerce. Although it is abundantly clear that traffick-

ing in data bases is an activity that substantially affects

3 The United States’ motion was for dismissal which the

district court construed as a motion for summary judgment

pursuant to Rule 12(b), Fed.R.Civ.P.

App. 41

interstate commerce these days, we are, nonetheless,

sympathetic to this argument. Congress drew its author-

ity to regulate this activity from its nexus to interstate

commerce, and then proceeded to exempt from the reach

of the Act virtually all its interstate connections.

It is clear that Congress sought by this Act to protect

the public from “stalkers” who might use motor vehicle

information to locate their victims.* In trying to protect

legitimate governmental and business uses of such infor-

mation, however, Congress riddled the Act with more

holes than Swiss cheese. Through these holes escaped

most of the interstate commerce activity covered by the

Act. Thus, Congress claims its authority to regulate the

States’ dissemination of personal DMV information lies in

its power to regulate the commercial aspect of this infor-

mation which it then proceeded to exclude from the Act.

We shall not resolve this troublesome issue, however,

because we are persuaded that even if there is a sufficient

connection between this legislation and interstate com-

merce to authorize Congress to enact the DPPA, the Act

violates the Tenth Amendment.

4 During floor debate on the Senate version of the Act,

Senators invoked the example of Rebecca Shaeffer, an actress

from California, who was murdered by an obsessed fan who

obtained her address from the department of motor vehicles

through a private investigator. See 139 Cong.Rec. $15,766,

Comments of Senator Harkin. See also (Feb. 4, 1994) (statement

of Rep. Moran); 139 Cong.Rec. S15, 762 (Nov. 16, 1993)

(statement of Sen. Boxer); 139 Cong.Rec. S15, 765 (Nov. 16, 1993)

(statement of Sen. Robb); 139 Cong. Rec. S15, 765 (statement of

Sen. Biden).

App. 42

2. The DPPA and the Tenth Amendment

The Supreme Court has recently made clear that the

federal government may not command the States to

administer or enforce a federal regulatory program.

Printz v. United States, 521 U.S. 98, 117 S. Ct. 2365, 2384

(1997); New York v. United States, 505 U.S. 144, 176-77, 112

S. Ct. 2408 (1992). In New York, the Supreme Court

addressed the constitutionality of the Low-Level Radioac-

tive Waste Policy Act which required States to choose

between accepting ownership of radioactive waste gener-

ated within their borders and regulating this waste

according to instructions from Congress. 505 U.S. at 152.

The Court found that this provision “commandeers the

legislative processes of the States by directly compelling

them to enact and enforce a federal regulatory program,”

in violation of the Tenth Amendment. /d. at 176. In Printz,

the Court extended the holding of New York to recognize

that the Tenth Amendment protects state officers, as well

as States, from federal commandeering. In Printz, the

Court held unconstitutional provisions of the Brady

Handgun Violence Prevention Act which imposed interim

requirements on State chief law enforcement officers

(“CLEOs”) to conduct background checks on prospective

handgun purchasers and to perform related tasks. 117 S.

Ct. at 2368. The Act required CLEOs to:

make a reasonable effort to ascertain within 5

business days whether receipt or possession [of

a firearm by a particular purchaser] would be in

violation of the law, including research in what-

ever state and local record keeping systems are

available.

App. 43

Id. at 2369 (quoting 18 U.S.C. § 922(s)(2)). The Court

characterized this provision as one directing or forcing

state law enforcement officers to participate in the admin-

istration of a federally enacted regulatory scheme. Id. at

2369, 2376. The Court held the requirement violated the

Tenth Amendment because:

[t]he Federal Government may neither issue

directives requiring the States to address partic-

ular problems, nor command the States’ officers,

or those of their political subdivisions, to

administer or enforce a federal regulatory pro-

gram. It matters not whether policymaking is

involved, and no case-by-case weighing of bur-

dens or benefits is necessary; such commands

are fundamentally incompatible with our consti-

tutional system of dual sovereignty.

Id. at 2384.

Although New York and Printz make clear that federal

law may not direct state officials to administer or enforce

a federal regulatory scheme, they are less helpful in iden-

tifying the attributes of such a law. We recognize that the

DPPA does not compel Alabama to enact legislation as in

New York; nor does it conscript state officers to help the

federal government search for potential violations of fed-

eral law as in Printz.

Nevertheless, the DPPA does establish a detailed set

of rules under which Alabama’s disclosure or refusal to

disclose to third parties the personal information in its

motor vehicle records shall be done as the federal estab-

lishment wishes it to be done. The Act requires that

department of motor vehicle officers disclose personal

information contained in its motor vehicle records for use

App. 44

in connection with matters of motor vehicle or driver

safety and theft and to carry out various federal statutes.°

It further provides that personal information may be dis-

closed in fourteen other circumstances. It seeks to regu-

late the circumstances under which private individuals

may obtain this information and to prevent the disclosure

at all in certain instances. No one disputes that Congress,

through the DPPA, has enacted a federal regulatory pro-

gram to control the dissemination and cloaking of the

States’ motor vehicle information.

Furthermore, the Act is neither self-administering

nor self-enforcing. State officers are directed to administer

and enforce these rules. They must insure that protected

information is disclosed only for the designated purposes

specified by the federal rules. In complying with the Act,

state officers must review requests for information to

determine whether the request is for a permissible use.

The Act contains no explicit instructions regarding the

extent to which the state officer must investigate and

confirm the accuracy of the claims made by individuals

requesting the information. In reviewing requests and

interpreting the rules, state officers will be acting as

federal agents making federal policy. See Printz, 117 S. Ct.

at 2380-81.

Thus, we conclude the DPPA is a federal regulatory

program which Congress has directed state officers to

administer. Congress may not enlist state officers in this

5 This requirement nullifies the United States’ argument

that the Act does not command the States to do anything

because the States may simply opt out of this legislation by

deciding to close their DMV records completely.

App. 45

way. Printz, 117 S. Ct. at 2380. As the Court stated in New

York:

States are not mere political subdivisions of

the United States. State governments are neither

regional offices nor administrative agencies of

the Federal Government. The positions occupied

by state officials appear nowhere on the Federal

Government's most detailed organizational

chart.

505 U.S. at 188.

The United States argues that it is permissible for

Congress to command state officers to assist in the imple-

mentation of federal law so long as Congress itself

devises a clear legislative program that regulates the

States directly rather than requiring them to regulate

third parties. The DPPA, it is said, is constitutional

because it directly regulates state activities and neither

directs the States or their officials to regulate their citi-

zens, nor to construct any regulatory regime.

We disagree. To be sure, Congress may require the

States to comply with federal regulation of an activity

affecting interstate commerce when the States choose to

must comply with the federal minimum wage law. Garcia

v. San Antonio Metropolitan Transit Authority, 469 U.S. 528

6 In fact, Congress may totally occupy a field of regulation

of interstate commerce but permit continued state regulation of

the activity so long as a State meets certain preconditions. The

DPPA does not, however, preempt the field of licensing drivers.

Nor does it impose preconditions to the States’ continued

regulation of a totally preempted field. It seeks only to direct the

States in that regulation.

App. 46

(1985). See also South Carolina v. Baker, 485 U.S. 505, 511-15

(1988) (States may be required to issue bonds in regis-

tered form as are private corporations); United Transp.

Union v. Long Island R. Co., 455 U.S. 678 (1982) (labor laws

apply to state-owned railroads); Fry v. United States, 421

U.S. 542 (1975) (States are bound by generally applicable

wage and price controls).

But all of these cases are examples of when a partic-

ularly strong federal interest permits Congress to bring

state governments within the orbit of generally applicable

federal regulation. Garcia, 469 U.S. at 554 (“San Antonio

faces nothing more than the same minimum-wage and

overtime obligations that hundreds of thousands of other

employers, public as well as private, have to meet”). In

Printz and New York, the Supreme Court distinguished

such laws of general applicability from laws targeted

exclusively at States. 117 S. Ct. at 2383; 505 U.S. at 160.

Although the Tenth Amendment does not automatically

permit the former and proscribe the latter, in the cases

cited above the issue was whether the incidental applica-

tion to the States of federal laws of general applicability

excessively interfered with the functioning of state gov-

ernments. The federal laws at issue were upheld because

the federal interest was strong enough to permit Con-

gress to bring state governments within the orbit of gen-

erally applicable federal regulation.

The Court has made clear, however, that where, as

here, the “whole object of the law [is] to direct the func-

tioning of the state executive, and hence to compromise

the structural framework of dual sovereignty, such a ‘bal-

ancing’ analysis is inappropriate.” 117 S. Ct. at 2383. See

also New York, 505 U.S. at 160 (radioactive waste statute

App. 47

unconstitutional because the “[take title] provision is

inconsistent with the federal structure of our Government

established by the Constitution”). Instead of bringing the

States within the scope of an otherwise generally applica-

ble law, Congress passed the DPPA specifically to regu-

late the States’ control of the States’ own property — the

motor vehicle records. “It is the very principle of separate

state sovereignty that such a law offends, and no compar-

ative assessment of the various interests can overcome

that fundamental defect.” Printz, 117 S.Ct. at 2383.7

It is not state power that the principle of state sover-

eignty protects. When States are forced to administer

federal programs, a fundamental attribute of State sover-

eignty is threatened: democratic accountability. It is this

basic principle upon which the Supreme Court rested its

holdings in New York and Printz:

7 The United States suggests that the DPPA is generally

applicable when considered in the context of other federal laws

which regulate the dissemination of personal information, such

as the Video Privacy Protection Act, 18 U.S.C. § 2710 (restricting

disclosure of personal information contained in video rental

records) and the Cable Communications Policy Act, 47 U.S.C.

§ 551 (restricting disclosure of personal information about cable

subscribers). Even if a statute could be considered generally

applicable because it is part of some sort of scheme of

regulation, Congress has thus far regulated the disclosure of

personal information by holders of databases only in a

piecemeal fashion. There is no generally applicable

Congressional regulation of the disclosure of such information

even if all such laws are considered part of such a scheme. Thus,

there is no generally applicable Congressional regulation of this

activity of which the DPPA is a part.

App. 48

By forcing state governments to absorb the

financial burden of implementing a federal reg-

ulatory program, Members of Congress can take

credit for “solving” problems without having to

ask their constituents to pay for the solutions

with higher federal taxes. And even when the

States are not forced to absorb the costs of

implementing a federal program, they are still

put in the position of taking the blame for its

burdensomeness and for its defects. . . . Under

the present law, for example, it will be the CLEO

and not some federal official who stands

between the gun purchaser and immediate pos-

session of his gun. And it will likely be the

CLEO, not some federal official, who will be

blamed for any error (even one in the desig-

nated federal database) that causes a purchaser

to be mistakenly rejected.

117 S.Ct. 2365. The Court also observed in New York:

But where the Federal Government directs the

States to regulate, it may be state officials who

will be the brunt of public disapproval, while

the federal officials who devised the regulatory

program may remain insulated from the elec-

toral ramifications of their decision. Accoun-

tability is thus diminished when, due to federal

coercion, elected state officials cannot regulate

in accordance with the views of the local electo-

rate in matters not pre-empted by federal regu-

lation.

505 U.S. at 169 (citations omitted). Thus, when Congress

requires the States to administer a federal program, dem-

ocratic accountability is diminished and for this reason

the Tenth Amendment is offended.

a eee ae ee AS

App. 49

This Act cannot be saved by the argument that it

simply regulates a realm of national economic activity —

the buying and selling of personal information ~ whether

or not the economic actors happen to be State or citizens.®

The DPPA is not a law of general applicability.’ Only

States collect driver’s license and motor vehicle informa-

tion. This is an exercise of sovereignty. See Peel v. Florida

Dept. of Transp., 600 F.2d 1070, 1083 (Sth Cir. 1979) (“Over-

seeing the transportation system of the state has tradi-

tionally been one of the functions of state government,

and thus appears to be within the activities protected by

the tenth amendment”); United States v. Best, 573 F.2d

1095, 1103 (9th Cir. 1978) (“[T}here is little question that

8 A similar argument was made in Printz that the burden on

officers of the state would be permissible if a similar burden

were also imposed on private parties with access to relevant

data. The Court rejected this argument by noting:

The Brady Act does not merely require CLEOs to

report information in their private possession. It

requires them to provide information that belongs to

the State and is available to them only in their official

capacity; and to conduct investigations in their

official capacity, by examining databases and records

that only state officials have access-to. In other words,

the suggestion that extension of this statute to private

citizens would eliminate the constitutional problem

posits the impossible.

117 S.Ct. at 2383.

9 Although the Act restricts the way in which private

parties who obtain personal information from a motor vehicle

department may resell or redisclose such information, the Act's

applicability to private parties is incidental to its foremost

purpose: regulating the way in which state disseminate

information collected by their motor vehicle divisions.

App. 50

the licensing of drivers constitutes ‘an integral portion of

those governmental services which the States and their

political subdivisions have traditionally afforded their

citizens’ ”).

Thus, we conclude that the DPPA is a federal pro-

gram which Congress has commanded the States to

administer. As such, it offends the Tenth Amendment.!°

Accord Condon v. Reno, 155 F.3d 453 (4th Cir. 1998). But see

Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998); Oklahoma v.

United States, 161 F.3d 1266 (10th Cir. 1998).

10 We find no merit in the United States’ contention that the

Act is a valid exercise of Congress’ power to enforce the

Fourteenth Amendment. U.S. Const. amend. XIV, §§ 1, 5.

Whether Congress properly exercised its power under Section 5

in enacting the DPPA depends upon whether the Act enforces

some right guaranteed by the Fourteenth Amendment.

According to the United States, we have held that there is a

“right to confidentiality” in the sort of personal information

protected by the DPPA. We disagree. For example, in one of the

cases cited by the United States, James v. City of Douglas, 941 F.2d

1539, 1544 (11th Cir. 1991), we acknowledged a constitutional

right to privacy only for intimate personal information given to a

state official in confidence. Because information contained in

motor vehicle records is not this sort of information, an

individual does not have a reasonable expectation that the

information is confidential. Thus, there is no constitutional right

to privacy in motor vehicle record information which the DPPA

enforces.

We do not reach the Eleventh Amendment issue involving

the constitutionality of the fines provided for by the DPPA

because we hold the Act unconstitutional under the Tenth

Amendment.

App. 51

III.

The judgment of the district court is hereby

REVERSED, and the case is REMANDED. The district

court shall grant Alabama’s motion for an injunction

against the enforcement of the DPPA.

App. 52

Title 18 U.S.C. Sec. 2721 provides:

Sec. 2721. Prohibition on release and use of certain per-

sonal information from State motor vehicle records

(a) In General. - Except as provided in subsection (b), a

State department of. motor vehicles, and any officer,

employee, or contractor, thereof, shall not knowingly dis-

close or otherwise make available to any person or entity

personal information about any individual obtained by

the department in connection with a motor vehicle

record.

(b) Permissible Uses. - Personal information referred to

in subsection (a) shall be disclosed for use in connection

with matters of motor vehicle or driver safety and theft,

motor vehicle emissions, motor vehicle product alter-

ations, recalls, or advisories, performance monitoring of

motor vehicles and dealers by motor vehicle manufac-

turers, and removal of non-owner records from the origi-

nal owner records of motor vehicle manufacturers to

carry out the purposes of titles I and IV of the Anti Car

Theft Act of 1992, the Automobile Information Disclosure

Act (15 U.S.C. 1231 et seq.), the Clean Air Act (42 U.S.C.

7401 et seq.), and chapters 301, 305, and 321-331 of title

49, and may be disclosed as follows:

(1) For use by any government agency, including any

court or law enforcement agency, in carrying out its func-

tions, or any private person or entity acting on behalf of a

Federal, State, or local agency in carrying out its func-

tions.

(2) For use in connection with matters of motor vehicle

or driver safety and theft; motor vehicle emissions; motor

settee

App. 53

vehicle product alterations, recalls, or advisories; perfor-

mance monitoring of motor vehicles, motor vehicle parts

and dealers; motor vehicle market research activities,

including survey research; and removal of non-owner

records from the original owner records of motor vehicle

manufacturers.

(3) For use in the normal course of business by a legiti-

mate business or its agents, employees, or contractors,

but only -

(A) to verify the accuracy of personal information sub-

mitted by the individual to the business or its

agents, employees, or contractors; and

(B) if such information as so submitted is not correct or

is no longer correct, to obtain the correct informa-

tion, but only for the purposes of preventing fraud

by, pursuing legal remedies against, or recovering

on a debt or security interest against, the individual.

(4) For use in connection with any civil, criminal,

administrative, or arbitral proceeding in any Federal,

State, or local court or agency or before any self-regula-

tory body, including the service of process, investigation

in anticipation of litigation, and the execution or enforce-

ment of judgments and orders, or pursuant to an order of

a Federal, State, or local court.

(5) For use in research activities, and for use in produc-

ing statistical reports, so long as the personal information

is not published, redisclosed, or used to contact individ-

uals.

(6) For use by any insurer or insurance support organi-

zation, or by a self-insured entity, or its agents,

employees, or contractors, in connection with claims

iia

App. 54

investigation activities, antifraud activities, rating or

underwriting. ,

(7) For use in providing notice to the owners of towed

or impounded vehicles.

(8) For use by any licensed private investigative agency

or licensed security service for any purpose permitted

under this subsection.

(9) For use by an employer or its agent or insurer to

obtain or verify information relating to a holder of a

commercial driver’s license that is required under chap-

ter 313 of title 49.

(10) For use in connection with the operation of private

toll transportation facilities.

(11) For any other use in response to requests for indi-

vidual motor vehicle records if the motor vehicle depart-

ment has provided in a clear and conspicuous manner on

forms for issuance or renewal of operator’s permits,

titles, registrations, or identification cards, notice that

personal information collected by the department may be

disclosed to any business or person, and has provided in

a clear and conspicuous manner on such forms an oppor-

tunity to prohibit such disclosures.

(12) For bulk distribution for surveys, marketing or

solicitations if the motor vehicle department has imple-

mented methods and procedures to ensure that —

(A) individuals are provided an opportunity, in a clear

and conspicuous manner, to prohibit such uses; and

(B) the information will be used, rented, or sold solely

for bulk distribution for surveys, marketing, and

a...

iiiiiiciiiuiiaeeaeeiaill

App. 55

solicitations, and that surveys, marketing, and solic-

itations will not be directed at those individuals

who have requested in a timely fashion that they

not be directed at them.

(13) For use by any requester, if the requester demon-

strates it has obtained the written consent of the individ-

ual to whom the information pertains.

(14) For any other use specifically authorized under the

law of the State that holds the record, if such use is

related to the operation of a motor vehicle or public

safety.

personal information (except a recipient under subsection

(b)(11) or (12)) may resell or redisclose the information

only for a use permitted under subsection (b) (but not for

uses under subsection (b)(11) or or [sic] redisclose per-

sonal information for any purpose. An authorized recip-

ient under subsection (b)(12) may resell or redisclose

personal information pursuant to subsection (b)(12). Any

authorized recipient (except a recipient under subsection

(b)(11)) that resells or rediscloses personal information

covered by this chapter must keep for a period of 5 years

records identifying each person or entity that receives

information and the permitted purpose for which the

information will be used and must make such records

available to the motor vehicle department upon request.

(d) Waiver Procedures. — A State motor vehicle depart-

ment may establish and carry out procedures under

which the department or its agents, upon receiving a

request for personal information that does not fall within

one of the exceptions in subsection (b), may mail a copy

App. 56

of the request to the individual about whom the informa-

tion was requested, informing such individual of the

request, together with a statement to the effect that the

information will not be released unless the individual

waives such individual’s right to privacy under this sec-

tion.

Title 18 U.S.C. Sec. 2722 provides:

(a) Procurement for Unlawful Purpose. - It shall be

unlawful for any person knowingly to obtain or

disclose personal information, from a motor vehicle

record, for any use not permitted under section

2721(b) of this title.

(b) False Representation. - It shall be unlawful for any

person to make false representation to obtain any

personal information from an individual’s motor

vehicle record.

Title 18 U.S.C. Sec. 2723 provides:

(a) Criminal Fine. - A person who knowingly violates

this chapter shall be fined under this title.

(b) Violations by State Department of Motor Vehicles. -

Any State department of motor vehicles that has a

policy or practice of substantial noncompliance with

this chapter shall be subject to a civil penalty

imposed by the Attorney General of not more than

$5,000 a day for each day of substantial noncom-

pliance.

Title 18 U.S.C. Sec. 2724 provides:

(a) Cause of Action. - A person who knowingly obtains,

discloses or uses personal information, from a motor

vehicle record, for a purpose not permitted under this

chapter shall be liable to the individual to whom the

Seer

App. 57

information pertains, who may bring a civil action in a

United States district court.

(b)

(1)

(4)

Remedies. - The court may award -

actual damages, but not less than liquidated dam-

ages in the amount of $2,500;

punitive damages upon proof of willful or reckless

disregard of the law;

reasonable attorneys’ fees and other litigation costs

reasonably incurred; and

such other preliminary and equitable relief as the

court determines to be appropriate

Title 18 U.S.C. Sec. 2725 provides:

In this chapter -

(1)

“motor vehicle record” means any record that per-

tains to a motor vehicle operator’s permit, motor

vehicle title, motor vehicle registration, or identifica-

tion card issued by a department of motor vehicles;

“person” means an individual, organization or entity

agency thereof; and

“personal, but does not include a State or informa-

tion” means information that identifies an individ-

ual, including an individual’s photograph, social

security number, driver identification number, name,

address (but not the 5-digit zip code), telephone

number, and medical or disability information, but

does not include information on vehicular accidents,

driving violations, and driver’s status.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.