Case Information
*1 Before M ANION R OVNER Circuit Judges, B LAKEY District Judge .
R OVNER Circuit Judge
. response burgeoning problem identity theft, when enacted Fair Accurate Credit Transaction Act (FACTA) Honorable John Robert Blakey, Northern District Illinois, sitting designation.
cluded within the Act provision reduce the amount of potentially misappropriateable information produced in credit and debit card receipts. The Act prohibits merchants from printing the receipt the credit card expiration date and more than the last five digits of the credit debit card number. plaintiff in this case, Jeremy Meyers, used his credit card make purchases two stores owned by defendant, Oneida Tribe Indians Wisconsin, and received an electronically printed receipt each store included more than last five digits his credit card as well as card’s expiration date. Meyers brought putative class action eastern District Wisconsin violations FACTA, but determined defend ant, an Tribe, immune suit under Act. Meyers appeals and affirm.
I. facts are simple and dispute. Be tween February used his credit card make purchases Oneida Travel Center two Oneida One Stop retail locations around Green Bay, Wisconsin. All three stores owned operated federally recognized tribe, Oneida Tribe Indi ans Wisconsin. At each store he received electronically printed receipts included more than last five digits his credit card well as card’s expiration date. He al leges issued these receipts violation FACTA.
FACTA, amendment Fair Credit Reporting Act, states that,
[n]o person accepts credit cards or debit cards for the transaction of business shall print more than the last digits of the card number or the expiration date upon any receipt provid ed cardholder the point of the sale or transaction. U.S.C. § 1681c(g)(1). FACTA defines person as “any
dividual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or entity.” U.S.C. § 1681a(b).
Meyers sued Oneida Tribe these alleged violations FACTA brought putative class action on behalf all credit debit card holders who, after June re ceived Oneida Tribe, an electronically printed re ceipt displayed more than last five digits per son’s credit debit card or displayed card’s expiration date. The district court judge stayed decision certifica tion class. (R. 7).
The Oneida Tribe moved dismiss Meyers’ claim lack subject matter jurisdiction under Federal Rule Civil Procedure 12(b)(1). argued Meyers’ claims were barred under doctrine tribal had suffered “injury fact” grant ing him standing under Article III Constitution. district correctly noted, discuss below, jurisdictional. Nevertheless, properly treated Tribe’s motion to dismiss for lack subject matter jurisdiction under Fed ‐ eral Rule Civil Procedure 12(b)(1) as a motion dismiss failure state a claim which relief can be granted under Federal Rule Civil Procedure 12(b)(6). Miller Herman, F.3d 732–33 (7th Cir. 2010); citing Peckmann Thompson 1992) (when appro priate, a may treat a motion filed under Rule 12(b)(1) as if were a Rule 12(b)(6) motion). The subse quently concluded immune suit and granted motion dismiss. This appeal followed.
II.
A. We begin threshold matter jurisdiction. Just recently, Supreme Court issued its decision in Spokeo which considered whether a plaintiff had adequately alleged injury in fact so acquire standing under Article III Constitution. Spokeo, Inc. Robins S. Ct. plaintiff in alleged injury pursuant a different part Fair Credit Reporting Act than issue in case—one set forth requirements concerning ac curate creation use consumer reports. explained order satisfy “case contro versy” requirement Article III Constitution, jury must both particularized concrete thus a plaintiff cannot satisfy these demands alleging a bare procedural violation. went explain:
Congress’ role identifying elevating tangible harms does mean plaintiff automatically satisfies injury fact re quirement whenever statute grants person *5 5 3127 a statutory right purports authorize that person sue vindicate that right. Article III standing requires a concrete injury even context a statutory violation. 1549. district court, defendants raised a claim sub
ject matter jurisdiction, noted then pending Spokeo case (R. 14, p.15 16), but has abandoned issue on ap peal instead focuses only on issue im munity decided by court. Neither party briefed issues subject matter jurisdiction raised Spokeo , nor did either party submit supplemental authority regarding Spokeo . certainly true a court may not de cide merits a case without subject matter jurisdiction even if parties have themselves raised it. Steel Co. v. Citizens a Better Env ʹ t U.S. 83, (1998), Cook County 1999). This form “’hypothetical jurisdiction’ enables court resolve contested questions law when its jurisdiction doubt” was squarely rejected Supreme Court Steel Co., U.S. Shortly thereafter, however, made clear its ruling Steel Co. did mean federal must consider subject matter jurisdiction over all threshold matters. Ruhrgas AG Marathon Oil Co. U.S. 584–85 To contrary, “a federal leeway choose among threshold grounds denying audience merits.” Sinochem Int ʹ l Co. Malay sia Int ʹ l Shipping Corp. U.S. (2007), citing Ruhr gas 584–85. issue Article III constitutional standing after
Spokeo which decided after all briefing ar No. 15 3127 gument had concluded in this case, has been presented this court. We could remand this the district court determine whether Meyers has standing light of Spokeo (or request additional briefing this court). That would an ‐ swer threshold question whether plaintiff is properly before this court for purposes subject matter ju risdiction. However, another threshold issue is easily an swered—that whether plaintiff can obtain relief defendant through this suit. We conclude de fendant has and therefore it cannot. Supreme has instructed court “may find concerns judicial economy restraint overriding” therefore decide threshold issues before subject matter jurisdiction. See Ruhrgas 586. makes lit tle sense this court waste resources (and time remand, parties briefing) asking determine one threshold issue when another so easily readily resolved here.
There wrinkle this conclusion: this circuit has clearly held jurisdictional one. See, e.g., Smoke Shop, LLC v. United States F.3d 779, 782, n.1 (7th Cir. 2014); Blagojevich v. Gates 370, 2008), Parrott *7 7 No. 15 ‐ 3127 536 F.3d 629, 634–35 (7th Cir. 2008). [3] “What sovereign im ‐ munity means is relief against de ‐ pends a statute; is not competence of render a binding judgment, but propriety of terpreting a given statute allow particular relief.” Parrott , 536 F.3d at 634–35, citing Cook County , 167 F.3d at 389. Sov ereign immunity, therefore, is a waivable defense. Sung Park v. Indiana Univ. Sch. of Dentistry , 692 F.3d 828, 830 (7th Cir. 2012). addition being a defense, however, sovereign immunity, like qualified immunity, also bears character istics “immunity from trial attendant burdens litigation.” Abelesz v. Magyar Nemzeti Bank , 692 F.3d 661, 667 (7th Cir. 2012); Herx v. Diocese Fort Wayne ‐ S. Bend, Inc. , 772 F.3d 1085, 1089 (7th Cir. 2014) (Sovereign immunity is part a class “of cases [that] involve claims immunity travails a trial not just from adverse judgment.”); see also Ashcroft v. Iqbal 556 662, 672 (2009) (qualified immunity “is both a defense liability a lim ited entitlement stand trial or face burdens litigation.”). This why “an order rejecting foreign gov ernment’s claim also meets crite ria collateral ‐ order appeal.” Herx 772 F.3d Thus, no matter whether give label “jurisdictional” or not, nevertheless “threshold *8 8 15 3127 ground[] for denying audience a case on merits.” Ruhrgas , 526 U.S. at 585. [4] short, at same time we exercise our right
“choose among threshold grounds for denying audience a on merits,” , we emphasize two issues while do ing so. First, question sovereign immunity not on merits so we do not run afoul Supreme Court’s prohibitions Steel Company. See Steel Co. , 523 U.S. at 93–94. “[J]urisdiction vital only if court proposes issue a judgment merits.” Sinochem Int ʹ l U.S. at cit ing Intec USA, LLC Engle F.3d 2006).
Second, our decision decide question rather than remand a determination stand ing under Spokeo meant declare jurisdictional one. “Customarily, a federal first resolves doubts about its jurisdiction over subject matter.” Ruhrgas U.S. 578. As Supreme noted, however, there are numerous circumstances which appropriately accords priority non merits threshold inquiry than subject matter jurisdiction, such pendent jurisdiction, forum non conveniens, abstention, others. Sinochem As pending, predicted would Court’s likely rul ing Sinochem, noting “there many reasons adjudicating—lack subject matter jurisdiction, lack per sonal jurisdiction, lack ripeness, abstention, forum non conveniens.” Intec USA (emphasis origi No. ‐
nal). And, fact, the Supreme Court adopted this court’s statement “jurisdiction vital only if the court proposes issue a judgment on the merits.” Sinochem Int ʹ l at 431, citing Intec, at In this case, the issued the Spokeo decision after this already briefed and argued. as whether injuries sustained FACTA cases such concrete enough satisfy standard Spokeo still unresolved. Compare Guarisma Microsoft Corp. –––F.Supp.3d –––, –––, WL 4017196, *3 (S.D. Fla. July 26, 2016) (“violation FACTA constitutes a concrete injury and itself”) and Wood J Choo USA, Inc. No. 15CV81487BLOOMVALLE, WL *6 (S.D. Fla. Aug. 11, 2016) (noting printing violating receipt is, itself, concrete injury) with Noble Nevada Checker CAB Corp. 215CV02322RCJVCF, WL *4 (D. Nev. Aug. 2016) (“Plaintiffs have no standing complain pu tative technical violations statute alleged here, because putative violations created no ‘concrete’ harm type sought prevented Congress, Plaintiffs have separately alleged any actual harm.”) A later might decide best address Article III standing issue first, but because federal leeway choose among threshold grounds denying audience on merits, our conclusion defendants have im munity resolves non ‐ merits threshold matter without fur ther burden courts parties, we choose route today.
B. evaluating Tribe’s claim immunity, begin uncontroversial, two century old concept *10 10 15 3127 Indian tribes have inherent sovereign authority. Michi gan v. Bay Mills Indian Comty. , 134 S. Ct. 2024, 2030 (2014). More could be said history and philosophy behind sovereignty described it Bay Mills , but upshot Indian tribes possess “common law suit traditionally enjoyed sovereign powers. … Thus unless until Congress acts, tribes retain their historic sovereign authority” Id . This true even tribe’s com mercial activities. Id. has instructed time again if Congress’ intent abrogate tribal immunity, it must
clearly unequivocally express purpose. See also , C & L Enters., Inc. v. Citizen Band Potawatomi Tribe Okla. U.S. 411, 418 (2001); United States v. Dion 476 U.S. 734, 738–39 (1986); Santa Clara Pueblo v. Martinez U.S. 49, list cases could continue length. Any ambi guity must interpreted favor immunity. Dolan Postal Serv. U.S. (2006); White Mountain Apache Bracker 143–44 (1980) (“Ambiguities federal law have been construed generously order comport with these traditional no tions sovereignty federal policy encourag ing tribal independence.”). We review legal whether Congress abrogated tribal de novo. Wisconsin Ho Chunk Nation 2008).
Congress did specifically list tribes FACTA’s definition “person.” U.S.C. § a(b). claims definition “person” which includes “any … government” broad enough include tribes. Perhaps if were writing blank slate, *11 11 15 3127 argument would have more teeth, but Congress demonstrated that knows full well how to abrogate tribal immunity. See, e.g. , Safe Water Drinking Act, 42 U.S.C. §§ 300j 9(i)(2)(A), 300f(10), 300f(12) (defining person to ‐ clude municipality and municipality to include an Indian tribe); [5] Resource Conservation and Recovery Act 1976, 42 U.S.C. §§ 6901, 6903(13)(A), 6903(15); [6] Fair Debt Collec tion Procedures Act, 28 U.S.C. §§ 3002(7), 3002(10) (defining “person” to include “a natural person (including an individ ual Indian) … an Indian tribe . ” [7] true that Congress need invoke “magic words” abrogate immunity. F.A.A. v. Cooper , 132 S. Ct. 1441, 1448 fact, both Blue Legs Osage Tribal Council courts had take indirect route determine Con gress meant abrogate finding term “person” respective statute covered municipalities, term “municipalities,” turn, defined cover “Indian tribes,” See Blue Legs 867 F.2d 1097; Osage Tribal Council 187 F.3d As one federal noted while surveying field, however, “there example in all history where found Congress intended abrogate tribal immunity without expressly mentioning Indian tribes some ‐ where in statute.” In re Greektown Holdings LLC, B.R. (E.D. Mich. 2015) (emphasis original).
There is, however, example a circuit abrogat ‐ ing tribal immunity without express mention tribes somewhere statute, attempts hitch himself this wagon. Krystal Energy Co. Navajo Nation 2004), cert. denied Krystal Energy Ninth Circuit found Con ‐ gress intended abrogate under Bank ‐ ruptcy Code despite fact no definition Bank ruptcy Code actually lists “Indian tribes” as either a foreign or domestic government. Id. at 1057. Bankruptcy Code issue specifically stated it abrogated im munity as a “governmental unit” which defined clude:
United States; State; Commonwealth; District; Territory; municipality; foreign state; depart ment, agency, or instrumentality United (but a States trustee while serving a trustee a under title), a State, a Commonwealth, a District, a Territory, municipality, or foreign state; or eign domestic government . U.S.C.A. § 101(27) (emphasis added). Id. 1057.
Ninth Circuit concluded category “Indian tribes” simply specific member group domestic gov ernments, which intended ab rogate.
Other federal courts to have considered disagree. These courts hold that because Indian tribes are not specifically named in the Bankruptcy Code, court would have to infer that Congress intended the phrase “oth ‐ er foreign domestic government” to encompass tribes that such inference inappropriate. For example, in In re Whitaker B.R. (B.A.P. 8th 2012), the Bank ‐ ruptcy Appellate Panel the Eighth Circuit rejected the Ninth Circuit’s conclusion that Congress can express its ‐ tent abrogate as to Indian tribes without specifically saying so. Instead, the Whitaker adhered the general principle statutes inter ‐ preted the benefit Indian tribes inferences like made Ninth Circuit were therefore impermis sible. Id. concluded, as result, enacting provi sion Bankruptcy Code, Congress did not unequivocal ly express its intent abrogate tribes. same vein, In re Greektown holdings, sitting review Bankruptcy Court Eastern District Michigan, rea soned follows:
This cannot say “perfect confi dence” phrase “other domestic gov ernment” unambiguously, clearly, unequivo cally unmistakably refers tribes. Bankruptcy Court’s conclusion does give appropriate deference Court’s recent admonition “[t]he special brand sovereignty tribes retain—both nature its extent—rests hands Congress.” Bay Mills, S. Ct. While may have utter “magic words,” Court precedent clearly dic ‐ tates it utter words beyond equivoca ‐ tion the slightest shred of doubt mean “In ‐ dian tribes.” Congress did not do so sections 106(a) 101(27) of the Bankruptcy Code thus the entitled to immuni ‐ ty from suit the underlying MUFTA pro ceeding.
In re Greektown Holdings, B.R. 700–01. bankruptcy Northern District of Iowa came to same conclusion, noting bankruptcy statute makes no specific mention of Indian tribes, thus insufficient to express unequivocal congressional abrogation of tribal immunity. re Nat ʹ l Cattle Cong. B.R. (Bankr. N.D. Iowa 2000).
Of course we not beholden to precedent any of these courts. Nor interpretation specific defini tion “domestic government” Bankruptcy Code di rectly on point purposes interpreting different defini tion FACTA. We need weigh on conflict tween these courts on how to interpret breadth term “other domestic governments” under Bankruptcy Code, because conclude simply has unequiv ocally abrogated the Tribes under the FACTA provision issue in this case.
Meyers makes much this court’s decision Bormes United States F.3d 2014), which we held that, enacting the Fair Credit Reporting Act, ab rogated the United States’ immunity. We reasoned Act declares any “person” who willfully or neg ligently fails comply Fair Credit Reporting Act is liable damages, then defines “person” “any indi vidual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, other entity.” Bormes F.3d citing U.S.C. §§ 1681n(a), 1681o(a), 1681a(b). Because there no debate United States government, we held, answer was plain. Bormes In Bormes con cluded that, “[b]y authorizing monetary relief against every kind government, United waived its sover eign immunity.” Id . (emphasis original). would like us interpret statement mean “every gov ernment” must also include tribes. As district court noted, however, if there was any implication about sovereigns, it was clearly dicta. fact, government conceded it “person” purposes Act so had no reason engage full analysis scope term “any government.” hit nail head when explained that: thing say “any government” means
“the States.” That entirely natural reading “any government.” But it’s another thing say “any government” means “Indian Tribes.” Against long held tradition trib al immunity … “any government” is equivocal in this regard. Moreover, it thing to read “the States” when Congress says “gov ernment.” But it would be quite another, given that ambiguities in statutes are to be resolved in favor tribal immunity, read “Indian tribes” when Congress says “government.” D. Ct. Order at (R. p.4) (emphasis in original).
Meyers argues that district dismissed his claim based on its erroneous conclusion that Indian tribes are not governments. He then dedicates many pages arguing that Indian Tribes are indeed governments. Meyers misses point. did not dismiss his claim because it concluded Indian tribes not governments. dis missed his claim because it could find clear, unequivo cal statement FACTA Congress meant abrogate sovereign immunity Tribes. Meyers has lost sight real question this sovereign immunity case— whether tribe can claim suit. answer must be “yes” unless told us no uncertain terms it “no.” Any ambiguity must be resolved favor immunity. Cooper S. Ct. 1448. Abrogation tribal may implied. Santa Clara Pueblo Martinez Of course wants us focus whether Oneida government so we might shoehorn it into FACTA’s statement defines liable parties include “any government.” See Bormes But when comes immunity, shoehorning precisely what cannot do. Congress’ words must fit like glove their unequivocality. Bay Mills S. Ct. 2031; C & L Enters. *17 17 No. 15 3127 532 U.S. 418. It must be said with “perfect confidence” Congress intended to abrogate and “imperfect confidence will not suffice.” Dellmuth v. Muth , 491 U.S. 223, 231 (1989), superseded by statute on other grounds as recognized v. Nordic Vill. Inc. , 503 U.S. 30, 45, n.14 Congress demonstrated it knows how unequivocally abrogate for Indi an Tribes. did not do so FACTA.
This leaves last loose end. argues Fair Credit Reporting Act is a statute general applicability thus is assumed apply tribes. Smart v. State Farm Ins. Co. 868 F.2d 929, 932 (7th Cir. 1989), supersed ed statute grounds Pub. L. 109–280, § 906(a)(2)(A), Stat. 780, (2006), recognized Bolssen Unum Life Ins. Co. Am. F. Supp. 2d 878, (E.D. Wis. 2009) (“when enacts statute general applicability, statute reaches everyone within federal ju risdiction specifically excluded, including Indians Tribes.”). As correctly pointed out, “the here whether Tribe is subject FCRA; whether Plaintiff can sue Tribe violating FCRA.” D. Ct. Order (R. p.6). “[W]hether tribe subject statute whether tribe may sued vio lating statute two entirely different questions.” Flori da Paraplegic, Ass ʹ n, Inc. Miccosukee Tribe Indians Flori da 1999) (emphasis origi nal); see also Kiowa Manufacturing Tech., Inc. (1998) (“There difference between right demand compliance state laws means available enforce them.”); re Nat ʹ l Cattle Cong. B.R. thus court’s grant Tribe’s motion dismiss AFFIRMED.
[1] Unless otherwise noted, references record court.
[2] another pending matter same plaintiff before this court, Mey ers alleged almost identical violation FACTA against different defendant. parties matter did brief issue standing after Court’s decision Spokeo, Inc. Robins S. Ct. Nicolet Restaurant, De Pere, LLC No. 2075, Appel late Record 11, 13. And parties have presented letters sup plemental authority informing recently decided cases which cite Spokeo . &
[3] Other courts disagree. See, e.g., Black v. Wigington F.3d 1259, (11th Cir. 2016); Patchak Jewell No. 5200, WL 3854056, *8 (D.C. Cir. July 15, 2016); Puckett Lexington Fayette Urban Cty. Gov ʹ t, WL *3 (6th Cir. Aug. 15, 2016); E.F.W. St. Stephen ʹ s High Sch. 2001)). entirely clear, however, whether disagreement each mat ter substance labels. note infra.
[4] Radha A. Pathak, Statutory Standing Tyranny Labels Okla. L. Rev.
[5] See Osage Tribal Council ex rel. Osage Indians U.S. Dep ʹ t La bor F.3d 81 (10th Cir. 1999) (“the language Safe Drinking Water Act contains clear explicit waiver tribal immun ity.”).
[6] See Blue Legs Bureau Affairs F.2d (8th Cir. 1989) (“It thus seems clear text history RCRA clearly indicates congressional intent abrogate Tribe’s immuni ty respect violations RCRA.”).
[7] Weddell F. Supp. 2d (D.S.D. 1998), aff ʹ d, 1999) (finding “the clear language supports con clusion waived tribes.”).
[8] implores us give extra weight Ninth Circuit’s holding because has more experience issues involving Tribes. This frivolous imploration. Courts Appeals hear cases on everything bankruptcy maritime law ERISA diversity suits about mat ters state law. job Appeals become expert on any area law before it. Ninth Circuit no more access legal research tribe than any court.