Meyers v. Oneida Tribe of Indians of Wis.

Citation836 F.3d 818
Decision Date08 September 2016
Docket NumberNo. 15–3127,15–3127
Parties Jeremy Meyers, individually, and on behalf of all others similarly situated, Plaintiff–Appellant, v. Oneida Tribe of Indians of Wisconsin, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Thomas A. Zimmerman, Jr., Attorney, Zimmerman Law Offices, P.C., Chicago, IL, for PlaintiffAppellant.

Thomas M. Pyper, Attorney, Husch Blackwell, LLP, Madison, WI, for DefendantAppellee.

Before Manion and Rovner, Circuit Judges, and Blakey, District Judge.*

Rovner

, Circuit Judge.

In response to the burgeoning problem of identity theft, when Congress enacted the Fair and Accurate Credit Transaction Act (FACTA) in 2003, it included within the Act a provision to reduce the amount of potentially misappropriateable information produced in credit and debit card receipts. The Act prohibits merchants from printing on the receipt the credit card expiration date and more than the last five digits of the credit or debit card number. The plaintiff in this case, Jeremy Meyers, used his credit card to make purchases at two stores owned by the defendant, the Oneida Tribe of Indians of Wisconsin, and received an electronically-printed receipt at each store that included more than the last five digits of his credit card as well as the card's expiration date. Meyers brought a putative class action in the eastern District of Wisconsin for violations of FACTA, but the district court determined that the defendant, an Indian Tribe, was immune from suit under the Act. Meyers appeals and we affirm.

I.

The facts in this case are simple and not in dispute. Between February 6 and 17, 2015, Meyers used his credit card to make purchases at the Oneida Travel Center and two Oneida One Stop retail locations in and around Green Bay, Wisconsin. All three stores are owned and operated by a federally-recognized Indian tribe, the Oneida Tribe of Indians of Wisconsin. At each store he received electronically printed receipts that included more than the last five digits of his credit card as well as the card's expiration date. He alleges that the Tribe issued these receipts in violation of FACTA.

FACTA, an amendment to the Fair Credit Reporting Act, states that,

[n]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.

15 U.S.C. § 1681c(g)(1)

. FACTA defines a person as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” 15 U.S.C. § 1681a(b).

Meyers sued the Oneida Tribe for these alleged violations of FACTA and brought a putative class action on behalf of all credit and debit card holders who, after June 3, 2008, received from the Oneida Tribe, an electronically printed receipt that displayed more than the last five digits of the person's credit or debit card or displayed the card's expiration date. The district court judge stayed a decision on certification of the class. (R. 7).1

The Oneida Tribe moved to dismiss Meyers' claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

. The Tribe argued that Meyers' claims were barred under the doctrine of tribal sovereign immunity and that Meyers had not suffered an “injury in fact” granting him standing under Article III of the Constitution.

The district court correctly noted, as we discuss below, that the question of sovereign immunity is not jurisdictional. Nevertheless, the court properly treated the Tribe's motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

as a motion to dismiss for failure to state a claim for which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). See

Miller v. Herman, 600 F.3d 726, 732–33 (7th Cir. 2010) ; citing Peckmann v. Thompson , 966 F.2d 295, 297 (7th Cir. 1992) (when appropriate, a court may treat a motion filed under Rule 12(b)(1) as if it were a Rule 12(b)(6) motion). The district court subsequently concluded that the Tribe was immune from suit and granted the motion to dismiss. This appeal followed.

II.
A.

We begin with the threshold matter of jurisdiction. Just recently, the Supreme Court issued its decision in Spokeo

which considered whether a plaintiff had adequately alleged injury in fact so as to acquire standing under Article III of the Constitution. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). The plaintiff in that case alleged injury pursuant to a different part of the Fair Credit Reporting Act than the one at issue in this case—one that set forth requirements concerning the accurate creation and use of consumer reports. The Supreme Court explained that in order to satisfy the “case or controversy” requirement of Article III of the Constitution, the injury must be both particularized and concrete and thus a plaintiff cannot satisfy these demands by alleging a bare procedural violation. Id. at 1550. It went on to explain:

Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.
Id. at 1549

.

In the district court, the defendants raised a claim of subject matter jurisdiction, and noted the then-pending Spokeo

case (R. 14, p.15–16), but it has abandoned that issue on appeal and instead focuses only on the issue of sovereign immunity as decided by the district court. Neither party briefed the issues of subject matter jurisdiction raised in Spokeo, nor did either party submit supplemental authority regarding Spokeo. It is certainly true that a court may not decide the merits of a case without subject matter jurisdiction even if the parties have not themselves raised it. See

Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), United States v. Cook County , 167 F.3d 381, 387 (7th Cir. 1999). This form of ‘hypothetical jurisdiction’ that enables a court to resolve contested questions of law when its jurisdiction is in doubt” was squarely rejected by the Supreme Court in Steel Co., 523 U.S. at 101, 118 S.Ct. 1003. Shortly thereafter, however, the Supreme Court made clear that its ruling in Steel Co. did not mean that a federal court must consider subject matter jurisdiction over all other threshold matters. Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 584–85, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). To the contrary, “a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007), citing Ruhrgas , 526 U.S. at 584–85, 119 S.Ct. 1563.

The issue of Article III constitutional standing after Spokeo

, which was decided after all of the briefing and argument had concluded in this case, has not been presented to this court.2 We could remand this case to the district court to determine whether Meyers has standing in light of Spokeo

(or request additional briefing in this court). That would answer the threshold question of whether the plaintiff is properly before this court for purposes of subject matter jurisdiction. However, another threshold issue is easily answered—that is whether the plaintiff can obtain relief from the defendant through this suit. We conclude that the defendant has sovereign immunity and therefore it cannot. The Supreme Court has instructed that a court “may find that concerns of judicial economy and restraint are overriding” and therefore decide other threshold issues before subject matter jurisdiction. See

Ruhrgas , 526 U.S. at 586, 119 S.Ct. 1563. It makes little sense for this court to waste the resources of the district court (and the time for remand, and the parties in briefing) asking it to determine one threshold issue when another is so easily and readily resolved here.

There is one wrinkle to this conclusion: this circuit has clearly held that the question of sovereign immunity is not a jurisdictional one. See, e.g., Smoke Shop, LLC v. United States , 761 F.3d 779, 782, n.1 (7th Cir. 2014)

; Blagojevich v. Gates , 519 F.3d 370, 371 (7th Cir. 2008), Parrott v. United States , 536 F.3d 629, 634–35 (7th Cir. 2008).3 “What sovereign immunity means is that relief against the United States depends on a statute; the question is not the competence of the court to render a binding judgment, but the propriety of interpreting a given statute to allow particular relief.” Parrott , 536 F.3d at 634–35, citing Cook County , 167 F.3d at 389. Sovereign immunity, therefore, is a waivable defense. Sung Park v. Indiana Univ. Sch. of Dentistry , 692 F.3d 828, 830 (7th Cir. 2012). In addition to being a defense, however, sovereign immunity, like qualified immunity, also bears the characteristics of “immunity from trial and the attendant burdens of litigation.” Abelesz v. Magyar Nemzeti Bank , 692 F.3d 661, 667 (7th Cir. 2012) ; Herx v. Diocese of Fort Wayne–S. Bend, Inc. , 772 F.3d 1085, 1089 (7th Cir. 2014) (Sovereign immunity is part of a class “of cases [that] involve claims of immunity from the travails of a trial and not just from an adverse judgment.”); see also

Ashcroft v. Iqbal , 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (qualified immunity “is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.”). This is why “an order rejecting a foreign government's claim of sovereign immunity also meets the criteria for collateral-order appeal.” Herx , 772 F.3d at 1089. Thus, no matter...

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