Nisi v. Brown

• Decision Date: 22 February 2019
• Docket Number: No. 18 C 4861,18 C 4861
• Citation: 369 F.Supp.3d 848
• Parties: Mary NISI, Plaintiff, v. Dorothy BROWN, in her official capacity as Clerk of the Circuit Court of Cook County, Illinois, Defendant.
• Court: U.S. District Court — Northern District of Illinois

369 F.Supp.3d 848

Mary NISI, Plaintiff,

v.Dorothy BROWN, in her official capacity as Clerk of the Circuit Court of Cook County, Illinois, Defendant.

No. 18 C 4861

United States District Court, N.D. Illinois, Eastern Division.

Signed February 22, 2019

Roger Zamparo, Jr., Zamparo Law Group, P.C., Hoffman Estates, IL, Steven J. Uhrich, Uhrich Law, P.C., Chicago, IL, for Plaintiff.

Megan Kelly McGrath, Sisavanh Baccam Baker, Jessica Megan Scheller, Cook County State's Attorney Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

Plaintiff Mary Nisi filed this putative class action lawsuit alleging that Defendant Dorothy Brown, in her official capacity as Clerk of the Circuit Court of Cook County ("the Clerk"), violated the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721, et seq. , by improperly disclosing personal information derived from motor vehicle records. The Clerk subsequently filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting among other things that Nisi's claim is barred by the Eleventh Amendment. The Court grants the motion, albeit on a somewhat different ground.

BACKGROUND

In March 2005, Mary Nisi received a speeding ticket which was sent to the Clerk for processing. Compl. Ex. 1. The ticket included identifying information such as Nisi's gender, date of birth, home address, and driver's license number. According to the complaint, the Clerk allows members of the public to access that personal information (and the personal information of all others who receive traffic citations in Cook County) through electronic computer terminals located at all Cook County courthouses. Nisi filed suit in 2018,¹ alleging that such conduct violates the DPPA. The complaint seeks both injunctive and monetary relief.

The DPPA prohibits state departments of motor vehicles ("DMVs") and their employees from disclosing or making available to a third-party personal information contained in an individual's motor vehicle record. 18 U.S.C. § 2721. It also makes it "unlawful for any person knowingly to obtain or disclose" that personal information. § 2722(a) (emphasis added). The statute explicitly defines a "person" as "an individual, organization or entity" but not "a State or agency thereof." § 2725(2). State DMVs with policies of noncompliance are subject to civil penalties imposed by the U.S. Attorney General, § 2723(b), while "persons" in violation of the statute may be sued civilly. § 2724(a). Nisi maintains that the Clerk is a "person" who has violated the statute and filed suit under § 2724(a). The Clerk moved to dismiss the complaint, arguing that it is barred by the Eleventh Amendment and fails to state a claim under Rule 12(b)(6). For the reasons discussed below, the Court agrees that Nisi's claim against the Clerk, acting in her official capacity, must be dismissed—not because it is barred by the Eleventh Amendment (a question the Court does not reach) but because the DPPA does not provide a private right of action against the Clerk in her official capacity.

DISCUSSION

The Clerk's lead argument is that, as a state official sued in her official capacity, she is immune from Nisi's DPPA action because the Eleventh Amendment prohibits federal courts from exercising jurisdiction over suits brought by individual litigants against a state. U.S. Const. amend. XI ; Hans v. Louisiana , 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Presumably, the Clerk leads with this defense, and invokes Rule 12(b)(1) in making it, because it is often characterized as "jurisdictional." The Seventh Circuit, however, has explained that an Eleventh Amendment defense "is unusual in that it does not strictly involve subject matter jurisdiction." See Indiana Protection and Advocacy Servs. v. Indiana Family and Social Servs. Admin. ("IPAS "), 603 F.3d 365, 370 (7th Cir. 2010). Moreover, the Supreme Court has instructed that, before addressing an Eleventh Amendment defense, federal courts should consider the question of "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. United States ex rel. Stevens, 529 U.S. 765, 779, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (emphasis in original). The statutory question should precede the constitutional question, the Court explained, both because it is "logically antecedent" and because resolving the statutory question—does the statute provide a private right of action against the state—carries with it no risk of "expanding the Court's power beyond the limits that the jurisdictional restriction has imposed." The overlap between the statutory and constitutional inquiries makes it unnecessary, in most cases anyway, to address the constitutional defense at all, much less first. In jumping first to her Eleventh Amendment affirmative defense, then, the Clerk pretermitted the required threshold inquiry as to whether the DPPA authorizes official-capacity claims against state officials like the Clerk. The Court, however, must attend first to the statutory question. Power v. Summers , 226 F.3d 815, 818 (7th Cir. 2000) ("the district court should have dismissed the official-capacity claims before addressing the Eleventh Amendment defense, the sequence ordained by VermontAgency ....").

DPPA's Private Right of Action

The Court concludes that the DPPA does not provide a private right of action against state officials acting in their official capacities. Section 2724 of the DPPA provides an express private right of action against any "person" who knowingly discloses personal information from a motor vehicle record for an unauthorized purpose. Under the statute, "person" means "an individual, organization or entity, but does not include a State or agency thereof." 18 U.S.C. § 2725(2). This carve out raises the question of whether the Clerk, a state official acting in her official capacity, constitutes the "State" for purposes of DPPA liability.

Invoking both the plain text of § 2725(2) and the familiar interpretive canon of expressio unius est exclusio alterius , one might infer that by providing an express liability carve out for states and their agencies, Congress did not intend to create an implicit liability exemption for state officials acting in their official capacities. See, e.g. , Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A. , 530 U.S. 1, 6-7, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) ("Where a statute ... names the parties granted [the] right to invoke its provisions, ... such parties only may act.") (citing 2A N. SINGER , SUTHERLAND ON STATUTORY CONSTRUCTION § 47.23, p. 217 (5th ed.1992)) (internal quotation marks omitted).² But that inference would run afoul of the well-established principle that a state official in her official capacity "is the state." Fritz v. Evers , 907 F.3d 531, 533 (7th Cir. 2018) (emphasis in original). "Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Michigan Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). See also, e.g. , Hafer v. Melo , 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ("Suits against state officials in their official capacity ... should be treated as suits against the State."); Hawaii v. Gordon , 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) (per curiam) ("The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.").

In Will , the Supreme Court addressed the relationship between the sovereign immunity conferred on states by the Eleventh Amendment and the private right of action for deprivations of "rights, privileges, or immunities secured by the Constitution and laws" of the United States provided against a "person" acting under color of state law in 42 U.S.C. § 1983. Although confirming that the scope of § 1983 and the Eleventh Amendment are distinct issues, the Court concluded that the reach of § 1983's private right of action against state actors was not intended to abrogate the Eleventh Amendment sovereign immunity of states or other well-established immunities or defenses under the common law. The Court accordingly held that, consistent with longstanding principle, "neither a State nor its officials acting in their official capacities are "persons" under § 1983. Will, 491 U.S. at 71, 109 S.Ct. 2304.

There seems little reason to believe that in enacting the DPPA Congress was any more interested in abrogating well established principles of sovereign immunity than it was when it adopted § 1983 more than 100 years earlier.³ To the contrary, Congress made explicit in the DPPA what the Supreme Court had to infer with respect to its intentions regarding the reach of § 1983 ; the latter contains no express carve out for state actors, while the DPPA does. And in exempting expressly what § 1983 exempts implicitly, it is reasonable to conclude, in the absence of an explicit contradiction, that Congress was aware of, and intended to incorporate, the longstanding limitation on private suits against states to enforce federal civil rights that the Court had recognized in § 1983. See, e.g., Lamar, Archer & Cofrin, LLP v. Appling , ––– U.S. ––––, 138 S.Ct. 1752, 1762, 201 L.Ed.2d 102 (2018) ("When Congress used the materially same language ... it presumptively was aware of the longstanding judicial interpretation of the phrase and intended for it to retain its established meaning."); Bragdon v. Abbott, 524 U.S. 624, 645, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) ("When administrative and judicial interpretations have settled the meaning of an existing statutory...