KLINT L. MOWRER & FRED WEAVER, JR., APPELLANTS v. UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., APPELLEES
No. 19-5321
United States Court of Appeals, FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2020 Decided September 24, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:12-cv-01158)
Charles R. Stinson argued the cause for appellants. With him on the briefs was Paul D. Cullen, Jr.
Caroline D. Lopez, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Mark B. Stern, Attorney, Steven G. Bradbury, General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, Joy K. Park, Senior Trial Attorney, and Charles J. Fromm, Deputy Chief Counsel, Federal Motor Carrier Safety Administration.
Before: WILKINS and KATSAS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS.
Concurring opinion filed by Circuit Judge KATSAS.
Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge RANDOLPH.
I
A
Congress enacted FCRA to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). To those ends, FCRA comprehensively regulates consumer reporting agencies. Three of its obligations are directly relevant here. First, in preparing any consumer report, a consumer reporting agency must follow reasonable procedures to ensure that the report is as accurate as possible.
FCRA defines its key terms “consumer reporting agency” and “consumer report.” A “consumer reporting agency” is “any person which, for monetary fees … regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.”
FCRA authorizes the award of money damages to consumers injured by certain violations of the statute. It imposes liability for actual damages on “[a]ny person” who negligently violates FCRA.
B
Since 1998, Congress has required the Department of Transportation to collect information on the safety of commercial motor carriers and drivers. See
System (MCMIS), which it administers through the Federal Motor Carrier Safety Administration. See Privacy Act of 1974: System of Records, 65 Fed. Reg. 83,124, 83,124–25 (Dec. 29, 2000). The Administration obtains much of its information from state governments, which submit it as a condition of receiving federal grants.
The MCMIS contains a wide range of information on commercial drivers, including crash reports and records of roadside inspections. See 65 Fed. Reg. at 83,125. The Administration uses this information to guide the operation of its Motor Carrier Safety Assistance Program, see id., which involves grants to states and other political jurisdictions to improve motor-carrier safety, see
In 2005, Congress directed the Administration to make certain “reports contained in the [MCMIS]” available to pre-employment screeners for the motor-carrier industry. Safe, Accountable, Flexible, Efficient (SAFE) Transportation Act, Pub. L. No. 109-59, sec. 4117(a), § 31150(a), 119 Stat. 1144, 1728 (2005) (codified at
The SAFE Transportation Act requires the Administration to satisfy four conditions before releasing MCMIS records to prospective employers. First, the Administration must ensure that any information is released “in accordance with [FCRA] and all other applicable Federal law.”
To comply with the last requirement, the Administration created a system called DataQs, which allows drivers to challenge information in their PSP reports. Pre-Employment Screening Program, 77 Fed. Reg. 42,548, 42,551 (July 19, 2012). DataQs forwards challenges to the state that submitted the contested information, and the state then decides whether to modify or remove it. Id.
C
Klint Mowrer and Fred Weaver are commercial truck drivers who received citations for violating state vehicle-safety laws. Mowrer received a citation because his “rear drag link” had too much “play by hand pressure,” and Weaver received a citation for failing to obey a “direction to be weighed.” J.A. 213, 215. State officials reported these citations to the Administration for inclusion in the MCMIS. After state courts dismissed misdemeanor charges arising from the citations, the drivers asked the Administration to remove them from the MCMIS. The Administration forwarded the requests to the relevant state agencies, which declined to remove the citations. The drivers later authorized the release of their PSP reports to
prospective employers. They now allege harm from the inclusion of their citations in those reports.
Mowrer sued the Administration in 2012. Joined by three other drivers and a trade association, he raised claims under FCRA, the Administrative Procedure Act, and the Privacy Act. Weaver filed a similar action in our court, which we transferred to the district court. Weaver v. FMCSA, 744 F.3d 142, 148 (D.C. Cir. 2014). In 2014, the drivers filed a consolidated complaint, which raised FCRA and APA claims but no Privacy Act claim. The drivers sought both damages under FCRA and prospective relief under the APA.
In 2015, the Administration moved to dismiss the complaint. The district court denied the motion. As relevant here, it held that FCRA waives federal sovereign immunity from damages for FCRA violations. Owner-Operator Indep. Drivers Ass’n v. Foxx, Nos. 12-1158, 14-548, 2015 WL 13651262, at *4 n.3 (D.D.C. Mar. 10, 2015).
In 2016, the district court dismissed the complaint for lack of standing. Owner-Operator Indep. Drivers Ass’n v. DOT, 211 F. Supp. 3d 252, 261–62 (D.D.C. 2016). We affirmed in part and reversed in part. 879 F.3d 339 (D.C. Cir. 2018). First, we held that Mowrer and Weaver had Article III standing to seek damages based on the Administration’s release of their safety records to prospective employers. Id. at 345. Next, we held that the drivers and their co-plaintiffs lacked standing to seek injunctive relief, as the MCMIS no longer contained any disputed information. Id. at 346–47. We thus remanded for further proceedings
In May 2018, the drivers moved to amend their complaint to seek injunctive relief and to resurrect the Privacy Act claims that they previously had asserted individually. The district
court denied the motion on the ground that our prior decision had foreclosed injunctive relief, but it invited the drivers to add Privacy Act claims in a separate motion. Owner-Operator Indep. Drivers Ass’n v. DOT, 316 F. Supp. 3d 201, 206 (D.D.C. 2018). The drivers again moved to add those claims in July 2018. But after receiving briefing on the issue, the court denied that motion as well. It reasoned that the drivers had unduly delayed in seeking to revive their Privacy Act claims and, in the alternative, that the drivers had waived the claims by omitting them from their consolidated complaint. Mowrer v. DOT, 326 F.R.D. 350, 353 (D.D.C. 2018). The operative complaint thus seeks relief only under FCRA.
The drivers allege that the Administration violated FCRA in three ways: by not following reasonable procedures to ensure that their PSP reports were as accurate as possible, by failing to investigate the accuracy of their PSP reports upon request, and by refusing to add a statement of dispute to their PSP reports. The drivers seek actual or statutory damages.
The district court dismissed the complaint on the ground that the Administration, in releasing MCMIS records as required by the SAFE Transportation Act, is not a “consumer reporting agency” under FCRA. Mowrer v. DOT, No. 12-1158, 2019 WL 4418747, at *6 (D.D.C. Sept. 16, 2019).
On appeal, the drivers challenge both the dismissal of their FCRA claim and the denial of their July 2018 motion to amend. We have appellate jurisdiction under
II
Before reaching the merits, we consider whether Congress has waived the federal government’s sovereign immunity from damages claims under FCRA.
A waiver of sovereign immunity “must be unequivocally expressed in statutory text.” FAA v. Cooper, 566 U.S. 284, 290 (2012) (cleaned up). Any ambiguities must be “construed in favor of immunity,” and ambiguity exists if there is a “plausible interpretation of the statute that would not authorize money damages against the Government.” Id. at 290–91. At the same time, waiving sovereign immunity does not require “magic words.” Id. at 291. We instead require only that the waiver “be clearly discernable from the statutory text in light of traditional interpretive tools.” Id.
FCRA meets this standard. It provides that “[a]ny person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer” for either “actual damages” or statutory “damages” within specified dollar ranges.
Together, these provisions speak clearly enough to waive federal sovereign immunity. FCRA defines “person” to include “any ... government”—a term that, as used in a federal statute, surely includes the federal government. FCRA makes the definition generally applicable to subchapter III, which
includes its private causes of action. Through those causes of action, FCRA imposes monetary liability on “any person” who willfully or negligently violates its terms. And it distinguishes between liability that runs against “any” person and liability that runs only against “natural” persons, reflecting a calibrated approach to the question of which persons should bear which liabilities. For these reasons, the Seventh Circuit correctly held that FCRA waives federal sovereign immunity. Bormes v. United States, 759 F.3d 793 (7th Cir. 2014).
The Fourth and Ninth Circuits have reached the opposite conclusion, Robinson v. U.S. Dep’t of Educ., 917 F.3d 799 (4th Cir. 2019); Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir. 2018), but their reasoning is unpersuasive.
These courts noted that FCRA contains a second, more specific waiver of sovereign immunity. Robinson, 917 F.3d at 803–04; Daniel, 891 F.3d at 771–72. Section 626 of FCRA requires consumer reporting agencies to disclose certain information to the Federal Bureau of Investigation,
The Fourth Circuit reasoned that if FCRA’s definition of “person” applied to its primary causes of action, then a serious constitutional question would arise. Robinson, 917 F.3d at 805.
For if those causes of action run against “any ... government,” they would cover state governments even though Congress cannot abrogate state sovereign immunity under the Commerce Clause. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996). But even if FCRA unconstitutionally imposes damages liability on state governments, there is no constitutional bar to Congress waiving the sovereign immunity of the federal government. Moreover, although ambiguous statutes do not abrogate state sovereign immunity—just as they do not waive federal sovereign immunity—that does not license courts to disregard the clear terms of unambiguous statutes. Thus, when Congress subjected any “public agency” to damages liability under the Age Discrimination in Employment Act, and separately defined “public agency” to include states, it managed to extend ADEA liability to the states—even though the extension proved unconstitutional. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73–74 (2000). So too here, when Congress subjected any “person” to damages liability under FCRA, and separately defined “person” to include “any ... government,” it acted with sufficient clarity to reach federal and state governments.
FCRA also subjects covered persons to punitive damages,
routinely investigates itself, which is the primary mission of various Inspectors General. As for the federal government imposing criminal liability on itself, or subjecting itself to investigation by the states, we may assume that contextual considerations would prevent application of the “person” definition as written. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014) (defined term “may take on distinct characters from association with distinct statutory objects”). But no such contextual considerations apply with respect to sovereign immunity, where the only interpretive constraint is that Congress waive it unambiguously. Finally, there is no arguable basis for limiting FCRA’s definition of “person” to substantive but not enforcement provisions; the definition by its terms is “applicable for the purposes of this subchapter”—i.e., subchapter III, which contains the entire statute.
Finally, the Ninth Circuit reasoned that FCRA’s statutory history counsels against reading its broad definition of “person” to effect a sovereign-immunity waiver. See Daniel, 891 F.3d at 774–76. As originally enacted in 1970, FCRA contained its current definition of “person,” but imposed liability only on “[a]ny consumer reporting agency or user of information” who negligently or willfully violated the Act. Pub. L. No. 91-508, tit. VI, §§ 616–617, 84 Stat. 1127, 1134 (1970). So, the argument goes, the definition of “person” in the 1970 statute cannot have waived sovereign immunity. We fail to see the relevance of that conclusion, for Congress later broadened FCRA’s damages actions to run against any “person,” Consumer Credit Reporting Reform Act of 1996,
Pub. L. No. 104-208, § 2412, 110 Stat. 3009-426, 3009-446, which is the text that we must construe and apply here.1
For these reasons, we hold that FCRA waives federal sovereign immunity from its damages claims.
To qualify as a “consumer reporting agency” regulated by FCRA, a person must regularly engage “in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.”
note to prospective employers that the drivers disputed the accuracy of the citations at issue,
In our view, the government is not a “consumer reporting agency” in its administration of the MCMIS and the PSP. For the sake of argument, we may assume that driver-safety records are “consumer reports” within the meaning of FCRA. But while the SAFE Transportation Act requires the Administration to make such records available to prospective employers, the Administration neither assembles nor evaluates the records for that purpose. To the contrary, it assembles and evaluates driver-safety records in the MCMIS, see 65 Fed. Reg. at 83,124–25, and does so to “support safety regulatory and enforcement activities” required by Title 49, see
The canon against surplusage reinforces our conclusion. The SAFE Transportation Act requires the Administration to satisfy four requirements before releasing MCMIS records to pre-employment screeners, and these requirements incorporate or parallel ones that FCRA already imposes on consumer reporting agencies. First, the Administration must “ensure that any information that is released” to prospective employers “will be in accordance with [FCRA] and all other applicable Federal law.”
position implies—the pointless incorporation into the SAFE Transportation Act of one FCRA requirement after another.
In contrast, our interpretation gives meaningful effect to the four FCRA-related conditions in the SAFE Transportation Act. Specifically, they oblige the Administration to act “in accordance with” FCRA provisions regarding the release of information and to follow three other requirements tracking those of FCRA. On this understanding, the Administration’s release of the drivers’ safety records may well have violated the SAFE Transportation Act, though not FCRA itself. Any such violation of the SAFE Transportation Act may, in an appropriate case, be redressable through the APA. But here, we have already held that the drivers lack standing to seek prospective relief under the APA, as the disputed records have already been removed from the MCMIS. See Owner-Operator Indep. Drivers, 879 F.3d at 346–47. And a violation of section 31150 could not itself support the money damages sought by the drivers, for the SAFE Transportation Act contains no arguable waiver of sovereign immunity.
For these reasons, we hold that the government did not become a “consumer reporting agency” under FCRA through its administration of the MCMIS database and the PSP disclosure program. We thus affirm the dismissal of the drivers’ damages claims under FCRA.
IV
The remaining issue is whether the district court permissibly denied the drivers’ July 2018 motion to amend their complaint to add Privacy Act claims. Federal Rule of Civil Procedure 15(a)(2) provides that a district court “should freely” allow amendment “when justice so requires.” But the decision whether to permit amendment is “vested in the sound discretion of the trial court,” Doe v. McMillan, 566 F.2d 713,
720 (D.C. Cir. 1977), which can deny leave to amend based on either “undue delay” by the moving party or “undue prejudice” to the other side, Foman v. Davis, 371 U.S. 178, 182 (1962).
In this case, the district court permissibly denied leave to amend. We have consistently held that undue delay is a valid ground for denying leave to amend, see, e.g., Elkins v. District of Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012); Doe, 566 F.2d at 720, especially when the plaintiff offers “no good reason” for the delay, Trudel v. SunTrust Bank, 924 F.3d. 1281, 1288 (D.C. Cir. 2019). Here, the drivers offer no explanation why they raised Privacy Act claims in their opening complaints,
We recognize that the district court, in denying the first motion to amend, remarked that the drivers could later add a Privacy Act claim. Owner-Operator Indep. Drivers, 316 F. Supp. 3d at 206. The drivers argue that this remark bound the court going forward. But a court may “modify or rescind its orders at any point prior to final judgment in a civil case.” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016). Here, the district court changed course long before final judgment, then
reasonably explained its revised position. Changing course in this way did not violate any law of the case.
V
The district court properly dismissed the drivers’ complaint and permissibly denied their July 2018 motion for leave to amend.
Affirmed.
KLINT L. MOWRER & FRED WEAVER, JR., APPELLANTS v. UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., APPELLEES
No. 19-5321
United States Court of Appeals, FOR THE DISTRICT OF COLUMBIA CIRCUIT
KATSAS, Circuit Judge, concurring: The Court’s opinion in this case proceeds in conventional fashion by deciding, first, that the Fair Credit Reporting Act waives the federal government’s sovereign immunity from claims for money damages and, second, that the FCRA claims asserted against the government here lack merit. Judge Randolph criticizes us for deciding the sovereign-immunity question unnecessarily. I write separately to explain my view that because the sovereign-immunity question goes to our jurisdiction, we must decide it before reaching the merits.
I
In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Supreme Court famously and emphatically confirmed that a federal court, before it resolves the merits of a case, must first conclude that it has jurisdiction to do so. Id. at 93–102. This requirement, which rests on a “long and venerable line of our cases,” arises from “‘the nature and limits of the judicial power’” and is “‘inflexible and without exception.’” Id. at 94–95 (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). Because jurisdiction is the “power to declare the law,” a court without jurisdiction “cannot proceed at all in any cause.” Id. at 94 (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). A court with only possible or hypothetical jurisdiction “produces nothing more than a hypothetical judgment—which comes to the same thing as an advisory opinion.” Id. at 101.
The Supreme Court held in FDIC v. Meyer, 510 U.S. 471 (1994), that “[s]overeign immunity is jurisdictional in nature.” Id. at 475. The Court thought it “axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Id. (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). Likewise, “the terms of the United States’ consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Id. (cleaned up) (quoting United States v. Sherwood, 312
U.S. 584, 586 (1941)). “Therefore,” before reaching the merits of a suit for damages against the federal
After Meyer, our court has four times held that we must find a waiver of sovereign immunity before reaching the merits of claims against the federal government. In Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006), we cited Steel Co. for the proposition that we “must” begin with the “issue of jurisdiction,” we described federal sovereign immunity as “jurisdictional” for that purpose, and we reached the merits only after resolving the disputed immunity question. Id. at 1214–16. In Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), we ranked as “‘jurisdictional’” the question “whether the United States has waived its sovereign immunity,” and we reached the merits only after “[h]aving concluded that there is jurisdiction.” Id. at 185–87 (quoting Meyer, 510 U.S. at 475). In Perry Capital LLC v. Mnuchin, 864 F.3d 591 (D.C. Cir. 2017), we held that Steel Co.’s “obligation to assure ourselves we have jurisdiction” at the outset “extends to sovereign immunity because it is ‘jurisdictional in nature.’” Id. at 619 (quoting Meyer, 510 U.S. at 475). In Sierra Club v. Wheeler, 956 F.3d 612 (D.C. Cir. 2020), we held that “[b]ecause sovereign immunity is ‘jurisdictional in nature,’ we must assure ourselves that the Sierra Club’s claims fall within a valid waiver of sovereign immunity before allowing the suit to proceed.” Id. at 616 (quoting Meyer, 510 U.S. at 475). We have also treated federal sovereign immunity as jurisdictional in other respects. We have raised the issue sua sponte. See Perry Capital, 864 F.3d at 619; Trudeau, 456 F.3d at 185; Rochon, 438 F.3d at 1215–16. And we have held that an agency’s appearance in court does not waive its sovereign
immunity because “officers of the United States possess no power … to confer jurisdiction on a court in the absence of some express provision of Congress.” Dep’t of Army v. FLRA, 56 F.3d 273, 275 (D.C. Cir. 1995) (quoting United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 660 (1947)).
This analysis accords with the treatment of state sovereign immunity. Federal and state sovereign immunity derive from the same source—the centuries-old view that no sovereign may “be sued without its consent,” which was “universal in the States when the Constitution was drafted and ratified.” Alden v. Maine, 527 U.S. 706, 715–16 (1999). Before ratification, states enjoyed this immunity as “fully sovereign nations,” Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1493–95 (2019)—as the United States does today. States still largely enjoy the same immunity, insofar as sovereign immunity “limits the grant of judicial authority in Art. III.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Likewise, the Eleventh Amendment, which sought “to restore the original constitutional design” regarding sovereign immunity, Alden, 527 U.S. at 722,
Our treatment of foreign sovereign immunity is also instructive. The Foreign Sovereign Immunities Act grants foreign sovereigns immunity “from the jurisdiction of the courts of the United States and of the States,”
Nigeria, 461 U.S. 480, 493–94 (1983); Process & Ind. Dev. Ltd. v. Fed. Repub. of Nigeria, 962 F.3d 576, 584 (D.C. Cir. 2020).
II
Against all this, Judge Randolph invokes In re Sealed Case No. 99-3091, 192 F.3d 995 (D.C. Cir. 1999) (per curiam). There, we held that because federal sovereign immunity “can be waived,” it is a “less than pure jurisdictional question,” which “need not be decided before [the] merits.” Id. at 1000–01 (cleaned up). The primary authority we cited was United States ex rel. Long v. SCS Business & Technical Institute, Inc., 173 F.3d 890 (D.C. Cir. 1999), which we read to hold that Eleventh Amendment immunity “need not be decided before the merits.” 192 F.3d at 1000.
How to handle this clear conflict among our precedents? We have held that “when a decision of one panel is inconsistent with the decision of a prior panel, the norm is that the later decision, being in violation of that fixed law, cannot prevail.” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). Moreover, if an earlier circuit precedent prevails over later inconsistent circuit precedents, then so too must an earlier Supreme Court precedent. Thompson v. Dallas City Attorney’s Office, 913 F.3d 464, 467–68 (5th Cir. 2019). And Sealed Case conflicts with prior Supreme Court precedent: whereas Meyer held that federal sovereign immunity is a “jurisdictional” issue that we “must first decide” before reaching the merits, 510 U.S. at 475, Sealed Case held that federal sovereign immunity is only “quasi-jurisdictional” and so “we are not required to decide [it] before the merits,” 192 F.3d at 1000–01. Later panels of this Court were thus correct to follow Meyer over Sealed Case, and we should do the same.
Moreover, later Supreme Court decisions have “eviscerated” the reasoning of Sealed Case, which separately makes it no longer binding. See Dellums v. NRC, 863 F.2d 968, 978 n.11 (D.C. Cir. 1988). Sealed Case held that federal sovereign immunity is a “less than pure jurisdictional question”—and thus not subject to Steel Co.—because Congress can waive it. 192 F.3d at 1000. But in that respect, federal sovereign immunity is like two other waivable but jurisdictional questions: Eleventh Amendment immunity, which Sealed Case discussed, and personal jurisdiction, see Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J., concurring) (“the hybrid nature of the jurisdictional bar erected by the Eleventh Amendment ... bears substantial similarity to personal jurisdiction requirements, since it can be waived”); Baude & Sachs, The Misunderstood Eleventh Amendment, 169 U. Penn. L. Rev. 609, 625 (2021); Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1574–79 (2002). After we decided Sealed Case, the Supreme Court made clear that Eleventh Amendment immunity is a threshold jurisdictional issue for purposes of Steel Co., see Vt. Agency, 529 U.S. at 778–80, even though states can waive it. Likewise, the Court has held that personal jurisdiction, though waivable, ranks as jurisdictional under Steel Co. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583–84 (1999). Later, the Court confirmed the corollary proposition that a federal court “may not rule on the merits of a case without first determining that it has” both “subject-matter” and “personal jurisdiction.” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007). After these intervening decisions, it is no longer possible to maintain that courts may skip over federal sovereign immunity simply because Congress can waive it.2
III
More broadly, Judge Randolph contends that Steel Co. imposes no sequencing rule for any question of statutory as opposed to constitutional jurisdiction. Post at 1–4. But Steel Co. says the opposite, as does most of our precedent.
A
As a conceptual matter, it makes little sense, in distinguishing between jurisdiction and the merits, to differentiate constitutional and statutory jurisdiction.
Nor did Steel Co. draw that distinction. Although the jurisdictional question presented there involved the case-or-controversy requirement of
Finally, in summing up its holding, Steel Co. referenced both statutory and constitutional jurisdiction: “The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.” 523 U.S. at 101.
This Court repeatedly has held that, under Steel Co., we “must” decide questions of statutory jurisdiction before the merits. In re Sealed Case, 449 F.3d 118, 121 (D.C. Cir. 2006). We have done so in cases involving statutory jurisdiction over a sentencing appeal, id.; statutory jurisdiction under the Tucker Act, Rochon, 438 F.3d at 1214 (“We begin, as we must, with the issue of jurisdiction.”); statutory jurisdiction under the Hobbs Act, Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1264 (D.C. Cir. 2004) (“Before addressing the merits … we must consider two jurisdictional issues.”); habeas jurisdiction under
B
Again, we confront conflicting precedents. In the decisions discussed above, we held that we must decide questions of statutory jurisdiction before the merits. On the other hand, Kramer v. Gates, 481 F.3d 788 (D.C. Cir. 2007), held that the “absolute priority” rule of Steel Co. governs only “issues related to
To harmonize these competing case lines, I would again return to Meyer, which specifically held that federal courts “must first decide” federal sovereign immunity before reaching the merits. 510 U.S. at 475. Whatever rule might govern statutory-jurisdiction questions besides those bearing on federal sovereign immunity, no circuit decision could abrogate the Supreme Court’s specific holding on that point. Moreover, earlier circuit decisions control over later ones, and at least six pre-Kramer decisions squarely require federal courts to resolve questions of statutory jurisdiction before the merits. Finally, as explained below, subsequent Supreme Court decisions have eviscerated Kramer.
Kramer relied on the second footnote of Steel Co., which stated that sometimes “a merits question can be given priority over a statutory standing question.” 523 U.S. at 97 n.2. Kramer equated the phrase “statutory standing” with “statutory jurisdiction,” then made the sweeping conclusion that courts may decide the merits before any question of statutory jurisdiction. 481 F.3d at 791. But after Kramer was decided, the Supreme Court clarified that the term “statutory standing” means the traditional zone-of-interests requirement, which asks “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014) (citing Steel Co., 523 U.S. at 97 n.2). Lexmark further noted that the term “statutory standing” is misleading, “since the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.” Id. at 128 n.4 (cleaned up). So in concluding that a court may decide the “merits” question “whether any plaintiff has a cause of action under the statute” at issue before deciding the so-called “statutory standing” question “whether this plaintiff has a cause of action,” Steel Co., 523 U.S. at 97 n.2, the Supreme Court was simply allowing one merits question to be decided before another.4
After Lexmark, there is
Sinochem further undercuts Kramer. That case reiterated the holding of Ruhrgas that federal courts may decide questions of personal jurisdiction before questions of subject- matter jurisdiction. 549 U.S. at 430–31. In Ruhrgas, the only disputed question of subject-matter jurisdiction was one involving “the complete diversity required by
IV
Finally, Judge Randolph opines on the history of sovereign immunity. In his view, because the existence of immunity was an open question at the Founding, and because the Supreme Court decided merits questions before sovereign-immunity questions through the twentieth century, we should not read Meyer to curtail that longstanding discretion. Post at 6–11. But even putting aside that Meyer says what it says, Judge Randolph gets the history wrong. Far from inventing a novel rule, Meyer applied an understanding of sovereign immunity that predates the Founding.
A
“[T]he doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified.” Alden, 527 U.S. at 715–16. In the Founders’ view, it derived from both the common law and the law of nations. Franchise Tax Bd., 139 S. Ct. at 1493. Under the common law, “no suit or action [could] be brought against the king, even in civil matters, because no court [could] have jurisdiction over him.” 1 W. Blackstone, Commentaries *235; see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 437–46 (1793) (Iredell, J., dissenting) (collecting English authorities); 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1898) (the king “cannot be compelled to answer in his own court”). And under the law of nations, the sovereign was “exempt[] ... from all [foreign] jurisdiction.” 4 E. de Vattel, The Law of Nations 486 (J. Chitty ed. 1835).7
During the ratification debates, leading Federalists were adamant that the Constitution did not abrogate this settled background rule. Alexander Hamilton wrote in The Federalist that it “is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” The Federalist No. 81. James Madison affirmed in the Virginia ratifying convention that it was “not in the power of individuals to call any state into court.” 3 Debates on the Federal Constitution 533 (J. Elliot ed., 2d ed. 1854). And John Marshall, speaking soon after Madison, concurred that it was “not rational to suppose that the sovereign power should be dragged before a court.” Id. at 555. Leading Anti-Federalists agreed that sovereigns were not properly “subject[] . . . to answer in a court of law, to the suit of an individual.” See, e.g., Brutus No. 13 (Feb. 21, 1788), in 4 The Founders’ Constitution 238 (P. Kurland & R. Lerner eds. 1987).
The reaction to Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), reflected this consensus. When four Justices read
B
The Framers also regarded sovereign immunity as jurisdictional. Then as now, a justiciable case required adverse “parties to come into court, who can be reached by its process, and bound by its power.” 10 Annals of Cong. 606 (1800) (remarks of then-Representative John Marshall); see also Borden v. Fitch, 15 Johns. 121, 141 (N.Y. Sup. Ct. 1818) (“To give any binding effect to a judgment, it is essential that the Court should have jurisdiction of the person.”). Immunity enabled a defendant sovereign to frustrate this requirement—Madison and Marshall asserted that no party could “call” or “drag[]” a sovereign into court. 3 Debates, supra, at 533, 555. Blackstone described sovereign immunity as a bar to “jurisdiction,” which “implies superiority of power.” 1 Blackstone, supra, at *235. And Hamilton acknowledged that a sovereign could be sued “with[] its consent.” The Federalist No. 81. From the beginning, sovereign immunity thus concerned the power to hale a particular party into court, or what we now call personal jurisdiction. See PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2264 (2021) (Gorsuch, J., dissenting) (“Structural [sovereign] immunity sounds in personal jurisdiction ….”); Nelson, supra, at 1565–66 & n.23; Baude & Sachs, supra, at 625.
This understanding fills the United States Reports. In United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834), Chief Justice Marshall remarked that a court “cannot exercise jurisdiction over” a suit against the United States unless it falls “within the authority of some act of [C]ongress.” Id. at 444. And in later cases, the Court regularly described the government’s consent to be sued as a prerequisite to jurisdiction. See, e.g., United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 514 (1940) (“Consent alone gives jurisdiction to adjudge against a sovereign. Absent that consent, the attempted exercise of judicial power is void.”); Haycraft v. United States, 89 U.S. 81, 92 (1874) (“To our minds the question is one of jurisdiction. A sovereign cannot be sued in his own courts except with his consent.”); United States v. McLemore, 45 U.S. (4 How.) 286, 288 (1846) (“There was no jurisdiction of this case in the Circuit Court, as the government is not liable to be sued, except with its own consent.”).
Meyer reasoned from this foundation. As Steel Co. recounted, a “long and venerable line of our cases” had held that courts must confirm their own jurisdiction before resolving the merits of a case. 523 U.S. at 94–95. And in Meyer itself,
C
Judge Randolph identifies some early cases that decided the merits before sovereign immunity. Post at 10–11. But his nineteenth-century cases involved ejectment actions brought against federal officials. United States v. Lee, 106 U.S. (16 Otto) 196, 196–97 (1882) (“the United States was not a party”); Grisar v. McDowell, 73 U.S. (6 Wall.) 363, 369–70 (1868); Brown v. Huger, 62 U.S. (21 How.) 305, 308–09 (1858);
Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 509 (1839). As the Court later explained, these cases stand only for the proposition that federal officials may be “sued individually as trespassers.” Belknap v. Schild, 161 U.S. 10, 19 (1896). Moreover, only one of the cases even mentioned sovereign immunity, and it did so without considering whether the immunity was jurisdictional, much less whether anything turned on that question. See Lee, 106 U.S. (16 Otto) at 204–23. Judge Randolph does identify two twentieth-century cases where the Supreme Court resolved the merits while reserving a question of sovereign immunity. United States v. Mitchell, 445 U.S. 535, 546 & n.7 (1980); Rabinowitz v. Kennedy, 376 U.S. 605, 607 (1964). But neither decision offered any reasoning for doing so. On the question of sequencing, these two decisions thus qualify as “drive-by jurisdictional rulings” entitled to “no precedential effect.” Steel Co., 523 U.S. at 91. Likewise, they establish no practice long or settled enough to have interpretive significance. And their utter silence on the sequencing question certainly does not trump the Supreme Court’s later, reasoned holding on that very point in Meyer.9
V
Finally, a word about prudence. Judge Randolph thinks that because the merits questions in this case are straightforward, it would be sensible to skip over the circuit-splitting question whether FCRA waives federal sovereign immunity. Post at 1. But the anterior sequencing question—whether we must decide the sovereign-immunity question first—is itself more complex than the sovereign-immunity question, as my back-and-forth with Judge Randolph makes clear. Moreover, as shown above, the sequencing question implicates two distinct conflicts within our own precedent, as well as deep inter-circuit confusion over whether sovereign immunity is jurisdictional. So regardless of whether I am right about Steel Co. and Meyer, the Court sensibly avoids that question by resolving sovereign immunity first. For while reasonable jurists may debate whether we must decide sovereign immunity first, all agree that we may do so.
RANDOLPH, Senior Circuit Judge, concurring in part and concurring in the judgment,
My colleagues conclude first that the governing statute waives the sovereign immunity of the Federal Motor Carrier Safety Administration. Then they tell us that the statute waiving sovereign immunity does not apply to this federal agency—and so the plaintiffs lose.
One may wonder how it can be that a statute waives the sovereign immunity of a federal agency when the statute does not even apply to the agency? This is a puzzle about which I express no opinion. As I see it, the court should not have exercised its discretion to decide the question of sovereign immunity first. There is a circuit split on whether this federal agency has immunity and, given the panel’s conclusion that the plaintiffs have no cause of action—with which I agree—I think it was improper to take a position on that question.
I.
The major premise of Judge Katsas’s concurring opinion is that a federal court must always satisfy itself that it has statutory jurisdiction before it may reach the merits. The rest of his concurring opinion is devoted to demonstrating that sovereign immunity is a matter of jurisdiction.
As I see it, his premise is wrong and so the rest of his concurring opinion does not matter. Even if sovereign immunity is jurisdictional (it is not), Supreme Court decisions and 2 decisions of this court hold in the clearest possible terms that there is no rigid rule requiring a federal court to decide statutory jurisdiction (as distinguished from
Consider National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453 (1974). The Court first decided that the plaintiffs did not have a cause of action. Only then did the Court explain: “Since we hold that no right of action exists, questions of [statutory] standing and jurisdiction became immaterial.” 414 U.S. at 465 n.13 (italics added). The Court thus made clear that a merits question can be decided before a statutory jurisdiction question. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 96-97 & n. 2 (1998), while holding that “a merits question cannot be given priority over an
In dissent, Justice Stevens relied on National Railroad and argued—as does Judge Katsas in his concurring opinion here—that it was not logical to treat statutory questions of jurisdiction differently than
Judge Katsas draws an analogy to the Supreme Court’s “treatment of state sovereign immunity.” Ante, at 3. But the analogy refutes his position. A few years after Steel Co. the Court acknowledged with approval that it had “routinely addressed before the question whether the Eleventh Amendment forbids a particular statutory cause of action to be asserted against States, the question whether the statute itself permits the cause of action it creates to be asserted against States (which it can do only by clearly expressing such an intent).” Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 779 (2000). It is worth noting that Justice Scalia, the author of the Court’s Steel Co. opinion, also wrote the Court’s opinion in Vermont Agency.
assume hypothetical statutory jurisdiction even if we cannot assume
These decisions are flatly contrary to Judge Katsas’s argument. Despite his attempt to soften their impact, no panel has overruled Kramer or Sherrod, nor could it. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).
II.
This brings me to the final nail in my colleague’s concurring opinion. As we have held and as the Supreme Court itself has recognized, Steel Co.’s priority-of-decision rule is limited to
Judge Katsas’s argument that we must decide sovereign immunity before reaching the merits can be correct if and only if sovereign immunity is a matter of
After the Supreme Court decided Steel Co., our court
B.
Judge Katsas suggests that his position is rooted in the Constitution. Article III, section 2 states that the “judicial Power shall extend” to certain “Cases” and “Controversies.” It follows that “whether there is a case or controversy” is a “threshold matter.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 92, 94 (1998). Yet beyond these “large, round, indefinite terms,” John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 2005 (2011), Article III dictates no rigid decisional sequence.
As to federal sovereign immunity, the Constitution says nothing. Still less is there any hint about where it should fall in the courts’ order of operations. That is hardly surprising, for at the founding, “the federal government’s immunity from suit was a question — not a settled constitutional fact.” Vicki C. Jackson, Suing the
C.
The Supreme Court first recognized federal sovereign immunity in 1821, when Chief Justice Marshall called it “[t]he universally received opinion[.]” Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 411 (1821). As then-Judge Scalia quipped: “I cannot avoid noting . . . the profound envy that my colleague Judge Ginsburg and I have of Justice Marshall’s ability to decide such an important issue in four words[.]” Antonin Scalia, Historical Anomalies in Administrative Law, Y.B.: Sup. Ct. Hist. Soc’y 1985, 103, 105 (1985).
If the Constitution forbids courts from bypassing federal sovereign immunity, that “understanding” should “fill[] the United States Reports.” Ante, at 15. But the opposite is true. From the nineteenth century onward, the Court often used its discretion to reach the merits ahead — or instead — of sovereign-immunity questions.
Take Wilcox v. Jackson, 38 U.S. 498 (1839). There, the Court ruled on the merits for a federal officer, without even mentioning sovereign immunity. See also, e.g., Brown v. Huger, 62 U.S. 305 (1858) (same); Grisar v. McDowell, 73 U.S. 363 (1867) (same). And in Lee v. United States, 106 U.S. 196, 199 (1882), the Court “consider[ed] first” the merits, before saying a word about the immunity question. Tellingly, while Lee drew a spirited dissent, not one Justice suggested that the majority’s sequencing choice offended the Constitution.
Of course, early courts also used their discretion to dismiss cases on sovereign-immunity grounds, without reaching the merits. And they often couched such dismissals in jurisdictional terms. E.g., United States v. McLemore, 45 U.S. 286, 288 (1846). Still, no one suggested that Article III mandated that sequence — a point illustrated in U.S. ex rel. Goldberg v. Meyer, 37 App. D.C. 282 (1911), aff’d sub nom, U.S. ex rel. Goldberg v. Daniels, 231 U.S. 218 (1913). In Goldberg, our court ruled on the merits for the Secretary of the Navy, holding that a federal statute did not compel him to deliver a decommissioned cruiser to a would-be buyer. Goldberg, 37 App. D.C. at 288–89. Writing for the Court, Justice Holmes affirmed on the alternative ground of federal sovereign immunity. See Daniels, 231 U.S. at 222. But he called this rationale “earlier in point of logic” — not constitutional priority — and he found “no sufficient reason for throwing doubt” on our merits-first approach. Id. at 221 (emphasis added). The upshot was clear. Decisional sequencing was a matter of discretion.
And that view held throughout the twentieth century. Consider Kennedy v. Rabinowitz, 318 F.2d 181 (D.C. Cir. 1963), aff’d, 376 U.S. 605 (1964) — a mirror image of Goldberg. In Rabinowitz, lawyers representing Cuba sued the Secretary of State, seeking a declaratory judgment that they were exempt from registering as foreign agents. Calling sovereign immunity a “threshold question,” our court ordered the case “dismissed . . . as an unconsented suit against the United States.” Kennedy, 318 F.2d at 182–83. But the Supreme Court saw things differently. In its view, the Foreign Agents Registration Act “plainly and unquestionably require[d] petitioners to register.” Kennedy, 376 U.S. at 607. The Court thus affirmed on the merits, finding no “occasion to consider” sovereign immunity. Id. See also, e.g., Califano v. Boles, 443 U.S. 282, 296–97 (1979) (“Because of
Did Meyer really discard all this precedent? Judge Katsas thinks so, observing — quite rightly — that none of these cases addressed the sequencing question head-on. Ante, at 17. But that is exactly the point. If two-hundred years elapsed before anyone supposed that the Constitution forbids courts to bypass federal sovereign immunity, that is a good sign that Sovereign Immunity First! is “bad wine of recent vintage.” Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in judgment)).
* * *
I acknowledge my colleague’s prerogative to disagree with the precedents of the Supreme Court and of our court. Yet it
seems to me incumbent on my colleague to describe how he would replace the many precedents he disregards, precedents that make “theoretical sense” and “enormous practical sense.” Supra n.3.
ADDENDUM
First Circuit:
Montijo-Reyes v. United States, 436 F.3d 19, 23 (1st Cir. 2006) (“We do not need to decide” the sovereign-immunity issue. “Instead, we decide the case on the independent ground that there is an insufficient causal link between the alleged failure to comply . . . and the alleged harm.”).
Scheidegg v. Dep’t of Air Force, 915 F.2d 1558 (Table), 1990 WL 151390, at *2 (1st Cir. Sept. 28, 1990) (per curiam joined by Breyer, J.) (“We bypass [federal sovereign immunity] because we can readily affirm the dismissal . . . on the merits.”).
Latinos Unidos de Chelsea en Accion (Lucha) v. Sec’y of Hous. & Urb. Dev., 799 F.2d 774, 793 & n.27 (1st Cir. 1986) (because “there is no private right of action,” it is “unnecessary for us to consider whether sovereign immunity stands as a bar to plaintiffs’ suit”).
Second Circuit:
Smith v. Lehman, 689 F.2d 342, 345 (2d Cir. 1982) (“This difficult sovereign immunity question need not be decided, however, because Smith’s constitutional claims cannot succeed on the merits.”).
Third Circuit:
Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 157 (3d Cir. 2021) (“[A]lthough we have not explicitly addressed whether the United States has waived sovereign immunity as to unjust enrichment claims, we need not resolve that issue here because Conboy and Gilsenan cited no record evidence creating a factual dispute material to their unjust enrichment claim against the SBA.”).
U.S. ex rel. IRS v. Norton, 717 F.2d 767, 774 (3d Cir. 1983) (“[W]e find it unnecessary . . . to decide whether sovereign immunity bars the imposition of a criminal contempt sanction against the IRS” because “the IRS did not have fair warning that its retention of funds was a per se violation of the automatic stay.”).
Fourth Circuit:
Turner v. United States, 736 F.3d 274, 280 n.2 (4th Cir. 2013) (“[W]e need not consider [sovereign immunity] because we find that the [Coast Guard] did not violate the relevant standard of care . . ..”).
Laber v. Harvey, 438 F.3d 404, 423 & n.19 (4th Cir. 2006) (en banc) (“Title VII does
Al Fayed v. United States, 210 F.3d 421, 423–25 (4th Cir. 2000) (“[T]he district court did not abuse its discretion” in declining “the issuance of a subpoena for highly classified government
documents[.]” So “we need not reach the Government’s [sovereign-immunity] argument[.]”).
Littell v. Morton, 445 F.2d 1207, 1210 (4th Cir. 1971) (“We consider first if the [statute] is applicable, because if it is not, manifestly, we need not consider the question of sovereign immunity.”).
Fifth Circuit:
Eberle v. Gonzales, 240 F. App’x 622, 629 n.3 (5th Cir. 2007) (“Because we conclude that Eberle either failed to exhaust his administrative remedies or failed to establish a prima facie case of retaliation, we need not reach Defendants’ alternative argument that the government has not waived sovereign immunity . . ..”).
Sixth Circuit:
Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443 F.3d 469, 477 (6th Cir. 2006) (“[U]nder any circumstances in which the State (or the United States) declines to raise sovereign immunity as a threshold defense, we conclude that the federal courts have discretion to address the sovereign-immunity defense and the merits in whichever order they prefer.”).
Local 3-689, Oil, Chem. & Atomic Int’l Union v. Martin Marietta Energy Sys., Inc., 77 F.3d 131, 138 n.11 (6th Cir. 1996) (“[A]s it has already been decided that the requisite statutes do not imply private rights of action, this court need not reach whether the Energy Act waives sovereign immunity.”).
Seventh Circuit:
United States v. All Assets & Equip. of W. Side Bldg. Corp., 188 F.3d 440, 443 n.1 (7th Cir. 1999) (“Because the government did not directly appeal this issue, we need not reach this thorny question of sovereign immunity.”).
Merrill Tenant Council v. U.S. Dep’t of Hous. & Urb. Dev., 638 F.2d 1086, 1091 n.7 (7th Cir. 1981) (“Because a penalty clause is void in a contractual cause of action in Illinois, we do not reach the issue of whether the waiver of sovereign immunity extends to a penalty.”).
Eighth Circuit:
Zarcon, Inc. v. NLRB, 578 F.3d 892, 896 & n.3 (8th Cir. 2009) (“[W]e reject Zarcon’s argument that the OPEN Government Act should apply to this case[,]” so “it is unnecessary for us to address the NLRB’s additional [sovereign-immunity] argument . . ..”).
Hartman v. Lyng, 884 F.2d 1103, 1107 n.3 (8th Cir. 1989) (“[W]e need not, and therefore do not, rule on the sovereign immunity issue, given our conclusion that the district court did not err in declining to award damages.”).
United Handicapped Fed’n v. Andre, 622 F.2d 342, 348 n.6 (8th Cir. 1980) (“We find that plaintiffs were not prevailing parties against federal defendants. Under the circumstances, we need not pass on the question of sovereign immunity.”).
Ninth Circuit:
Olsen v. U.S. ex rel. Fed. Crop Ins. Corp., 334 F. App’x 834, 835 n.1 (9th Cir. 2009) (“In light of our determination that the district court properly vacated the awards, we need not address whether the government waived its sovereign immunity.”).
Foti v. McHugh, 247 F. App’x 899, 901 (9th Cir. 2007) (“Because the government’s
Castaneda v. U.S. Dep’t of Agric., 807 F.2d 1478, 1479 n.3 (9th Cir. 1987) (“Because we affirm the dismissal of Castaneda’s action on the merits, we need not resolve the dispute between the parties as to whether the doctrine of sovereign immunity bars his action against the USDA.”).
Lehner v. United States, 685 F.2d 1187, 1190 (9th Cir. 1982) (“declin[ing] to decide” sovereign-immunity question where plaintiff “failed to allege facts which, if proven, would entitle her to relief”).
Tenth Circuit:
Watson v. United States, 485 F.3d 1100, 1111 n.9 (10th Cir. 2007) (Gorsuch, J.) (“Because we affirm the district court’s holding that the government was not negligent in its care of Mr. Lewis, we need not pass on . . . sovereign immunity[.]”).
Eleventh Circuit:
In re Gateway Radiology Consultants, P.A., 983 F.3d 1239, 1255 n.7 (11th Cir. 2020) (“Because we hold for the [U.S. Small Business Administration] on the merits, we need not and do not reach the sovereign immunity issue.”).
Federal Circuit:
Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348, 1358 (Fed. Cir. 2001); cf. Energy Nw. v. United States, 641 F.3d 1300, 1311 n.6 (Fed. Cir. 2011) (explaining that Bluebonnet “rejected [the plaintiffs’] claim for inadequate proof” and “did not take up the sovereign immunity question”).