No. 99-61
In the Supreme Court of the United States
JANET RENO, ATTORNEY GENERAL OF THE
UNITED STATES, AND THE UNITED STATES OF AMERICA, PETITIONERS
v.
BILL PRYOR, ATTORNEY GENERAL FOR THE STATE OF ALABAMA, AND THE STATE OF
ALABAMA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Driver's Privacy Protection Act of 1994, 18 U.S.C. 2721-2725
(1994 & Supp. III 1997), violates constitutional principles of federalism.
In the Supreme Court of the United States
No. 99-61
JANET RENO, ATTORNEY GENERAL OF THE
UNITED STATES, AND THE UNITED STATES OF AMERICA, PETITIONERS
v.
BILL PRYOR, ATTORNEY GENERAL FOR THE STATE OF ALABAMA, AND THE STATE OF
ALABAMA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the Attorney General of the United States
and the United States of America, respectfully petitions for a writ of certiorari
to review the judgment of the United States Court of Appeals for the Eleventh
Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-16a) is reported at
171 F.3d 1281. The opinion of the district court (App., infra, 17a-51a)
is reported at 998 F. Supp. 1317.
JURISDICTION
The judgment of the court of appeals was entered on April 6, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. The Commerce Clause of the United States Constitution, Article I, Section
8, Clause 3, provides: "The Congress shall have Power * * * To regulate
Commerce * * * among the several States."
2. The Tenth Amendment to the United States Constitution provides: "The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the
people."
3. The Driver's Privacy Protection Act of 1994, 18 U.S.C. 2721-2725 (1994
& Supp. III 1997), is reprinted in an appendix to this petition (App.,
infra, 52a-58a).
STATEMENT
1. This case involves a constitutional challenge brought by the State of
Alabama to the Driver's Privacy Protection Act of 1994 (DPPA or Act), 18
U.S.C. 2721-2725 (1994 & Supp. III 1997), which restricts disclosure
of personal information from state motor vehicle records.1 An individual
who seeks a driver's license from his State's department of motor vehicles
(DMV) is generally required to give the state DMV a range of personal information,
including his name, address, telephone number, and in some cases medical
information that may bear on the driver's ability to operate a motor vehicle.
In some States, the motor vehicle department also requires a driver to provide
his social security number (SSN) and takes a photograph of the driver. State
DMVs, in turn, often sell this personal information to other individuals
and businesses.2 Although DMVs generally charge only a small fee for each
particular sale of information, aggregate revenues are substantial. For
example, New York's motor vehicle department earned $17 million in one year
from individuals and businesses that used the State's computers to examine
driver's license records. See 1994 WL 212813 (Feb. 3, 1994) (statement of
Janlori Goldman, American Civil Liberties Union). The Wisconsin Department
of Transportation receives about $8 million each year from its sale of motor
vehicle information. See Travis v. Reno, 163 F.3d 1000, 1002 (7th Cir. 1998),
petition for cert. pending, No. 98-1818.
The personal information sold by DMVs is also used extensively to support
the marketing efforts of corporations and database compilers. See 1994 WL
212836 (Feb. 3, 1994) (statement of Richard A. Barton, Direct Marketing
Association) ("The names and addresses of vehicle owners, in combination
with information about the vehicles they own, are absolutely essential to
the marketing efforts of the nation's automotive industry."). This
information "is combined with information from other sources and used
to create lists for selective marketing use by businesses, charities, and
political candidates." Ibid. See also 1994 WL 212834 (Feb. 3, 1994)
(statement of Dr. Mary J. Culnan, Georgetown University) (describing use
of DMV information by direct marketers).
The highly publicized 1989 murder of actress Rebecca Schaeffer brought to
light the potential threat to privacy and safety posed by this commerce
in motor vehicle record information. Schaeffer had taken pains to ensure
that her address and phone number were not publicly listed. Despite those
precautions, a stalker was able to obtain her home address through her state
motor vehicle records. See 140 Cong. Rec. H2522 (daily ed. Apr. 20, 1994)
(statement of Rep. Moran). Evidence gathered by Congress revealed that the
incident involving Rebecca Schaeffer was similar to many other crimes in
which stalkers, robbers, and assailants had used state motor vehicle records
to locate, threaten, and harm victims.3
Moreover, Congress received evidence indicating that a national solution
was warranted to address the problem of potentially dangerous disclosures
of personal information in motor vehicle records. Marshall Rickert, Motor
Vehicle Administrator for the State of Maryland, who testified in support
of the legislation on behalf of the American Association of Motor Vehicle
Administrators, emphasized that technological advances had dramatically
increased the accessibility of state motor vehicle records, but that "many
state laws have not kept pace with technological advancements, and permit
virtually unlimited public access to driver and motor vehicle records."
1994 WL 212696 (Feb. 4, 1994). Accordingly, he urged that "uniform
national standards are needed." Ibid. In addition, among the incidents
brought to Congress's attention were ones in which stalkers had followed
their victims across state lines. See 1994 WL 212822 (Feb. 3, 1994) (statement
of David Beatty).
2. Based on evidence about threats to individuals' privacy and safety from
misuse of personal information in state motor vehicle records, Congress
enacted the DPPA to restrict the disclosure of personal information in such
records without the consent of the individual to whom the information pertains.
The DPPA prohibits any state DMV, or officer or employee thereof, from "knowingly
disclos[ing] or otherwise mak[ing] available to any person or entity personal
information about any individual obtained by the department in connection
with a motor vehicle record." 18 U.S.C. 2721(a).4 The DPPA defines
"personal information" as any information "that identifies
an individual, including an individual's photograph, social security number,
driver identification number, name, address (but not the 5-digit zip code),
telephone number, and medical or disability information," but not including
"information on vehicular accidents, driving violations, and driver's
status." 18 U.S.C. 2725(3).
The DPPA bars only nonconsensual disclosures. Thus, DMVs may release personal
information for any use, if they provide individuals with an opportunity
to opt out from disclosure when they receive or renew their licenses. See
18 U.S.C. 2721(b)(11). In addition, a DMV may release personal information
about an individual to a requester if the DMV obtains consent to the disclosure
from the individual to whom the information pertains. See 18 U.S.C. 2721(d).
A DMV also may disclose information about an individual if the requester
has that individual's written consent. 18 U.S.C. 2721(b)(13).
The DPPA explicitly disclaims any restriction on the use of motor vehicle
information by "any government agency," including a court, and
also "any private person or entity acting on behalf of a Federal, State,
or local agency in carrying out its functions." 18 U.S.C. 2721(b)(1).
It also expressly permits DMVs to disclose personal information for any
state-authorized purpose "relat[ing] to the operation of a motor vehicle
or public safety." 18 U.S.C. 2721(b)(14).
The DPPA does not preclude States from disclosing personal information for
other uses in which Congress found an important public interest. Thus, States
may disclose personal information in their motor vehicle records for use
in connection with car safety or theft, driver safety, and other motor-vehicle
related matters, 18 U.S.C. 2721(b)(2); by a business to verify the accuracy
of personal information submitted to that business, and further to prevent
fraud or to pursue legal remedies if the information the individual submitted
to the business is revealed to have been inaccurate, 18 U.S.C. 2721(b)(3);
in connection with court, agency, or self-regulatory body proceedings, 18
U.S.C. 2721(b)(4); for research purposes, if the personal information is
not further disclosed or used to contact the individuals, 18 U.S.C. 2721(b)(5);
by insurers in connection with claims investigations, anti-fraud activities,
rating, or underwriting, 18 U.S.C. 2721(b)(6); to notify owners of towed
or impounded vehicles, 18 U.S.C. 2721(b)(7); by licensed private investigative
agencies or security services for permitted purposes, 18 U.S.C. 2721(b)(8);
by employers to verify information relating to a holder of a commercial
driver's license, 18 U.S.C. 2721(b)(9) (1994 & Supp. III 1997); for
use in connection with private tollways, 18 U.S.C. 2721(b)(10); and in certain
circumstances for bulk distribution for surveys, marketing, or solicitation,
if individuals are provided an opportunity, "in a clear and conspicuous
manner," to prohibit such use of information pertaining to them, 18
U.S.C. 2721(b) (12)(A).
The DPPA also regulates, as a matter of federal law, the resale and redisclosure
of personal information obtained from state DMVs, 18 U.S.C. 2721(c) (1994
& Supp. III 1997), and prohibits any person from knowingly obtaining
or disclosing any record for a use not permitted by the DPPA, 18 U.S.C.
2722(a), or providing false information to a state agency to circumvent
the DPPA's restrictions on disclosure, 18 U.S.C. 2722(b).
The DPPA sets forth penalties and civil remedies for knowing violations
of the Act. Any "person" (defined to exclude any State or state
agency) who knowingly violates the DPPA may be subject to a criminal fine.
18 U.S.C. 2723(a), 2725(2). A state agency that maintains "a policy
or practice of substantial noncompliance" with the DPPA may be subject
to a civil penalty imposed by the Attorney General of not more than $5000
per day for each day of substantial noncompliance. 18 U.S.C. 2723(b). Any
person who knowingly obtains, discloses, or uses information from a state
motor vehicle record for a use not permitted by the DPPA may also be subject
to liability in a civil action brought by the person to whom the information
pertains. 18 U.S.C. 2724(a). The States, however, have no obligation themselves
to regulate the private use of information obtained under the Act or to
pursue legal remedies against any requester who obtains or uses information
in violation of the Act.
3. Alabama law provides that "[e]very citizen has a right to inspect
and make a copy of any public writing of this state, except as otherwise
expressly provided by statute." Ala. Code § 36-12-40 (1975). Respondents,
an officer and an agency of the State of Alabama, filed suit in federal
district court, alleging that the DPPA is not a valid exercise of Congress's
Commerce Clause powers, and that the statute violates the Tenth Amendment.
Respondents sought to enjoin enforcement of the Act.
The district court granted summary judgment for the federal government.
App., infra, 17a-51a. The court held first that the DPPA is a valid exercise
of Congress's power to regulate commerce. Id. at 32a-34a. It rejected the
State's contention that the Commerce Clause inquiry should turn on whether
Alabama made a profit on its sales of motor vehicle information. The court
explained that evidence before Congress showed that, "once released,
personal DMV information is often used in direct marketing campaigns or
resold by database-compiling companies to other companies for use in direct-marketing
campaigns," id. at 33a, and that direct marketing is a national industry,
ibid. Thus, the court observed, Congress had a rational basis for concluding
that the disclosure of such information "substantially impacts the
national trade of DMV records." Id. at 33a-34a.
The court also rejected (App., infra, 40a) respondents' claim that the DPPA
contravenes the Tenth Amendment, as construed by this Court in New York
v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521
U.S. 898 (1997). Rather, the court concluded, the DPPA is analogous to the
statute found constitutional in South Carolina v. Baker, 485 U.S. 505 (1988),
which upheld a federal statute that effectively required the States to issue
registered bonds, rather than bearer bonds. App., infra, 40a-41a. The court
noted that the DPPA, "like the statue at issue in South Carolina v.
Baker, is one which directly regulates the states, rather than requires
the states to administer or enforce a federal regulation. This distinguishes
the DPPA from the provisions at issue in New York and Printz--both of which
the Court found required States to regulate certain activity according to
the instruction of Congress." App., infra, 42a.
4. The court of appeals reversed. App., infra, 1a-16a. Although the court
questioned (id. at 6a-7a) whether the DPPA falls within Congress's commerce
powers, it did not resolve that issue. Rather, it held that the Act violates
the Tenth Amendment. Id. at 7a-16a.
The court acknowledged that "the DPPA does not compel Alabama to enact
legislation as in New York; nor does it conscript state officers to help
the federal government search for potential violations of federal law as
in Printz." App., infra, 9a. The court nonetheless found it significant
that the DPPA "does establish a detailed set of rules under which Alabama's
disclosure or refusal to disclose to third parties the personal information
in its motor vehicle records shall be done as the federal establishment
wishes it to be done." Ibid. Further, the court reasoned, "[s]tate
officers are directed to administer and enforce those rules. * * * In complying
with the Act, state officers must review requests for information to determine
whether the request is for a permissible use." Id. at 10a. And because
the Act "contains no explicit instructions regarding the extent to
which the state officer must investigate and confirm the accuracy of the
claims made by individuals requesting the information[, in] reviewing requests
and interpreting the rules, state officers will be acting as federal agents
making federal policy." Ibid.
The court also acknowledged that, under Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985), and South Carolina v. Baker, supra,
"Congress may require the States to comply with federal regulation
of an activity affecting interstate commerce when the States choose to engage
in that activity." App., infra, 11a. The court held, however, that
the DPPA cannot be upheld under those decisions because the Act is not a
law of "general applicability" like the statutes upheld in Garcia
and Baker; rather, the DPPA is "targeted exclusively at States."
Ibid. "Only States collect driver's license and motor vehicle information.
This is an exercise of sovereignty," and therefore, the court concluded,
shielded by the Tenth Amendment from Congress's power to regulate. Id. at
15a.
REASONS FOR GRANTING THE PETITION
The question presented in this petition is the same as the question presented
in Reno v. Condon, cert. granted, No. 98-1464 (May 17, 1999). Accordingly,
the petition in this case should be held pending the Court's decision in
Condon.
CONCLUSION
The petition for a writ of certiorari should be held pending the decision
in Reno v. Condon, cert. granted, No. 98-1464 (May 17, 1999), and then disposed
of as appropriate in light of the decision in that case.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JULY 1999
1 The DPPA was enacted as part of an omnibus crime control law, the Violent
Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Tit.
XXX, § 300002, 108 Stat. 2099. The Subcommittee on Civil and Constitutional
Rights of the House Judiciary Committee held hearings on the DPPA on February
3 and 4, 1994. Those hearings were never printed, and we are informed by
the Clerk of the Judiciary Committee that the Committee no longer has documents
or transcripts relating to the DPPA hearings. The principal prepared submissions
to the Subcommittee are available on WESTLAW. See Protecting Driver Privacy:
Hearings on H.R. 3365 Before the Subcomm. on Civil and Constitutional Rights
of the House Comm. on the Judiciary, 103d Cong., 2d Sess., available at
1994 WL 212813, 212822, 212833, 212834, 212835, 212836, 212696, 212698,
212701, 212712, 212720 (Feb. 3-4, 1994).
2 Representative Moran, a sponsor of the DPPA, observed: "Currently,
in 34 States across the country anyone can walk into a DMV office with your
tag number, pay a small fee, and get your name, address, phone number and
other personal information-no questions asked." 140 Cong. Rec. H2522
(daily ed. Apr. 20, 1994); see also 139 Cong. Rec. 29,466 (1993) (statement
of Sen. Boxer); id. at 29,468 (statement of Sen. Warner); id. at 29,469
(statement of Sen. Robb); 1994 WL 212834 (Feb. 3, 1994) (statement of Dr.
Mary J. Culnan, Georgetown University); 1994 WL 212813 (Feb. 3, 1994) (statement
of Janlori Goldman, American Civil Liberties Union).
3 See, e.g., 1994 WL 212698 (Feb. 4, 1994) (statement of Rep. Moran); 1994
WL 212822 (Feb. 3, 1994) (statement of David Beatty, National Victim Center);
1994 WL 212833 (Feb. 3, 1994) (statement of Donald L. Cahill, Fraternal
Order of Police); 139 Cong. Rec. 29,469 (1993) (statement of Sen. Robb);
id. at 29,470 (statement of Sen. Harkin).
4 A "motor vehicle record" is defined as "any record that
pertains to a motor vehicle operator's permit, motor vehicle title, motor
vehicle registration, or identification card issued by a department of motor
vehicles." 18 U.S.C. 2725(1).
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 98-6261
D.C. Docket No. CV-98-D-1396-N
BILL PRYOR, ATTORNEY GENERAL FOR THE STATE
OF ALABAMA, STATE OF ALABAMA,
PLAINTIFFS-APPELLANTS
versus
JANET RENO, ATTORNEY GENERAL OF THE
UNITED STATES,
UNITED STATES OF AMERICA,
DEFENDANTS-APPELLEES
Appeal from the United States District Court
for the Middle District of Alabama
[Filed: April 6, 1999]
Before: TJOFLAT, Circuit Judge, and GODBOLD and HILL, Senior Circuit Judges.
HILL, Senior Circuit Judge:
Plaintiffs, Bill Pryor, Attorney General for the State of Alabama, and the
State of Alabama (referred to collectively as Alabama or "the State"),
sought a declaratory judgment that the Driver's Privacy Protection Act of
1994, 18 U.S.C. §§ 2721-25, is unconstitutional under both the
Tenth and Eleventh Amendments to the United States Constitution, and an
injunction prohibiting the defendants Janet Reno and the United States from
enforcing the Act in whole or in part. The district court entered summary
judgment for the United States, from which Alabama appeals.
I.
The Driver's Privacy and Protection Act of 1994 ("DPPA" or "the
Act"), 18 U.S.C. §§ 2721, et seq., regulates the sale, dissemination
and use by the State and private individuals of personal information1 contained
in the State's motor vehicle records.2 The Act prohibits "a State department
of motor vehicles, and any officer, employee, or contractor, thereof, [from]
knowingly disclos[ing] or otherwise mak[ing] available to any person or
entity personal information about any individual obtained by the department
in connection with a motor vehicle record." 18 U.S.C. § 2721(a).
It makes it unlawful for a State department of motor vehicles [DMV], and
any officer, employee, or contractor thereof, to knowingly disclose or otherwise
make available personal DMV information for any purpose other than a "permissible
use." 18 U.S.C. § 2721(b). State departments of motor vehicles
with a "policy or practice of substantial noncompliance" with
the Act's provisions are subject to a civil penalty of up to $5,000 a day
for each day of substantial noncompliance, to be imposed by the United States
Attorney General. 18 U.S.C. § 2723(b). Persons who knowingly violate
the Act are subject to criminal fines. 18 U.S.C. § 2723(a).
Reversing course, the Act then allows disclosure of personal information
in abundant circumstances. 18 U.S.C. § 2721(b). For example, the Act
requires that such information be disclosed for use in matters of motor
vehicle or driver safety and theft, motor vehicle emissions, motor vehicle
product alterations, recalls, or advisories, performance monitoring of motor
vehicles and dealers by motor vehicle manufacturers, and removal of non-owner
records from the original owner records of motor vehicle manufacturers to
carry out the purposes of titles I and IV of the Anti Car Theft Act of 1992,
the Automobile Information Disclosure Act, the Clean Air Act, and chapters
301, 305, and 321-331 of title 49. 18 U.S.C. § 2721(b) (citations omitted).
It further provides that personal information may be disclosed for use by
any government agency in carrying out its functions, id. § 2721(b)(1);
in connection with car or driver safety, theft and other motor-vehicle related
matters, id. § 2721(b)(2); for use in the normal course of business
by a legitimate business in certain instances, id. 2721(b)(3); for use in
connection with any civil, criminal, administrative or arbitral proceedings
in any Federal, State, or local court or agency or before any self-regulatory
body, id. § 2721(b)(4); for use in research activities, and for use
in producing statistical reports, so long as the personal information is
not published, redisclosed, or used to contact individuals, id. § 2721(b)(5);
for use by an insurer or insurance support organization, or by a self-insured
entity, or its agents, employees, or contractors, in connection with claims
investigation activities, anti-fraud activities, rating or underwriting,
id. § 2721(b)(6); for use in providing notice to owners of towed or
impounded vehicles, id. § 2721(b)(7); for use by a licensed private
investigative agency or licensed security service for any purpose permitted
under the Act, id. § 2721(b)(8); for use by an employer or its agent
or insurer to obtain or verify required information relating to a holder
of a commercial driver's license, id. § 27221(b)(9); and for use in
connection with the operation of private toll transportation facilities,
id. § 2721(b)(10).
The DPPA also regulates private individuals' sale or disclosure of the above
information. The Act prohibits authorized recipients of personal DMV information
from reselling or redisclosing personal information for a use which the
State could not have disclosed it in the first place. 18 U.S.C. § 2721(c);
18 U.S.C. § 2722(a). The Act requires that individuals reselling or
redisclosing personal information for a permissible use keep records for
five years stating to whom they have resold or redisclosed the information
and the purpose of any such release, and must make these records available
to the state department of motor vehicles upon request. 18 U.S.C. §
2721(c). The Act also bars any person from knowingly obtaining personal
DMV information for any unauthorized use, 18 U.S.C. § 2722(a), and
from obtaining personal information "by false representation,"
18 U.S.C. § 2722(b). Individuals who knowingly violate these provisions
are subject to criminal fines, 18 U.S.C. § 2723(a), and private rights
of action by the person to whom the personal information pertains. 18 U.S.C.
§ 2724.
In addition to the exceptions noted above, the Act allows States to establish
waiver procedures to handle requests for disclosures that do not fall within
these exceptions. 18 U.S.C. § 2721(d). The DPPA allows States to release
personal information for any use not included in the Act's list of permissible
uses, if the motor vehicle department provides individuals an opportunity
to prohibit such disclosure. 18 U.S.C. § 2721(b)(11). Also, departments
of motor vehicles are permitted to release personal information for "bulk
distribution" for surveys, marketing or solicitations if individuals
have an opportunity to prohibit such disclosures. 18 U.S.C. § 2721(b)(12).
Alabama contends that Congress exceeded its authority under the Tenth and
Eleventh Amendments when it enacted the DPPA. The State contends that the
DPPA is an unconstitutional federal directive requiring it to administer
a federal program in violation of the Tenth Amendment. The State further
contends that the penalties imposed by the Act for noncompliance violate
the Eleventh Amendment. The United States counters that the Act is a constitutional
exercise of Congress' power under the Commerce Clause of the United States
Constitution to regulate and control the dissemination of personal information
in state DMV records in order to protect the privacy and safety of individuals.
On cross-motions for summary judgment,3 the district court held that the
Act is a valid exercise of Congress' authority to regulate interstate commerce,
and that it violates neither the Tenth nor the Eleventh Amendment. Alabama
appeals from the entry of this judgment.
II.
Alabama asserts that the DPPA violates the Tenth Amendment in two ways.
First, Alabama contends that the Commerce Clause does not authorize Congress
to invade the Tenth Amendment by regulating the States' dissemination of
motor vehicle information. Second, Alabama contends that the Tenth Amendment
prohibits Congress from requiring it to administer a federal program.
A. Congress' Authority to Enact the DPPA
Alabama argues that Congress exceeded its authority in regulating the States'
release of motor vehicle information because the dissemination of this information
is neither commerce, nor an activity substantially affecting commerce. Although
it is abundantly clear that trafficking in data bases is an activity that
substantially affects interstate commerce these days, we are, nonetheless,
sympathetic to this argument. Congress drew its authority to regulate this
activity from its nexus to interstate commerce, and then proceeded to exempt
from the reach of the Act virtually all its interstate connections.
It is clear that Congress sought by this Act to protect the public from
"stalkers" who might use motor vehicle information to locate their
victims.4 In trying to protect legitimate governmental and business uses
of such information, however, Congress riddled the Act with more holes than
Swiss cheese. Through these holes escaped most of the interstate commerce
activity covered by the Act. Thus, Congress claims its authority to regulate
the States' dissemination of personal DMV information lies in its power
to regulate the commercial aspect of this information which it then proceeded
to exclude from the Act.
We shall not resolve this troublesome issue, however, because we are persuaded
that even if there is a sufficient connection between this legislation and
interstate commerce to authorize Congress to enact the DPPA, the Act violates
the Tenth Amendment.
B. The DPPA and the Tenth Amendment
The Supreme Court has recently made clear that the federal government may
not command the States to administer or enforce a federal regulatory program.
Printz v. United States, 521 U.S. 98, 117 S. Ct. 2365, 2384 (1997); New
York v. United States, 505 U.S. 144, 176-77, 112 S. Ct. 2408 (1992). In
New York, the Supreme Court addressed the constitutionality of the Low-Level
Radioactive Waste Policy Act which required States to choose between accepting
ownership of radioactive waste generated within their borders and regulating
this waste according to instructions from Congress. 505 U.S. at 152. The
Court found that this provision "commandeers the legislative processes
of the States by directly compelling them to enact and enforce a federal
regulatory program," in violation of the Tenth Amendment. Id. at 176.
In Printz, the Court extended the holding of New York to recognize that
the Tenth Amendment protects state officers, as well as States, from federal
commandeering. In Printz, the Court held unconstitutional provisions of
the Brady Handgun Violence Prevention Act which imposed interim requirements
on State chief law enforcement officers ("CLEOs") to conduct background
checks on prospective handgun purchasers and to perform related tasks. 117
S. Ct. at 2368. The Act required CLEOs to:
make a reasonable effort to ascertain within 5 business days whether receipt
or possession [of a firearm by a particular purchaser] would be in violation
of the law, including research in whatever state and local record keeping
systems are available.
Id. at 2369 (quoting 18 U.S.C. § 922(s)(2)). The Court characterized
this provision as one directing or forcing state law enforcement officers
to participate in the administration of a federally enacted regulatory scheme.
Id. at 2369, 2376. The Court held the requirement violated the Tenth Amendment
because:
[t]he Federal Government may neither issue directives requiring the States
to address particular problems, nor command the States' officers, or those
of their political subdivisions, to administer or enforce a federal regulatory
program. It matters not whether policymaking is involved, and no case-by-case
weighing of burdens or benefits is necessary; such commands are fundamentally
incompatible with our constitutional system of dual sovereignty.
Id. at 2384.
Although New York and Printz make clear that federal law may not direct
state officials to administer or enforce a federal regulatory scheme, they
are less helpful in identifying the attributes of such a law. We recognize
that the DPPA does not compel Alabama to enact legislation as in New York;
nor does it conscript state officers to help the federal government search
for potential violations of federal law as in Printz.
Nevertheless, the DPPA does establish a detailed set of rules under which
Alabama's disclosure or refusal to disclose to third parties the personal
information in its motor vehicle records shall be done as the federal establishment
wishes it to be done. The Act requires that department of motor vehicle
officers disclose personal information contained in its motor vehicle records
for use in connection with matters of motor vehicle or driver safety and
theft and to carry out various federal statutes.5 It further provides that
personal information may be disclosed in fourteen other circumstances. It
seeks to regulate the circumstances under which private individuals may
obtain this information and to prevent the disclosure at all in certain
instances. No one disputes that Congress, through the DPPA, has enacted
a federal regulatory program to control the dissemination and cloaking of
the States' motor vehicle information.
Furthermore, the Act is neither self-administering nor self-enforcing. State
officers are directed to administer and enforce these rules. They must insure
that protected information is disclosed only for the designated purposes
specified by the federal rules. In complying with the Act, state officers
must review requests for information to determine whether the request is
for a permissible use. The Act contains no explicit instructions regarding
the extent to which the state officer must investigate and confirm the accuracy
of the claims made by individuals requesting the information. In reviewing
requests and interpreting the rules, state officers will be acting as federal
agents making federal policy. See Printz, 117 S. Ct. at 2380-81.
Thus, we conclude the DPPA is a federal regulatory program which Congress
has directed state officers to administer. Congress may not enlist state
officers in this way. Printz, 117 S. Ct. at 2380. As the Court stated in
New York:
States are not mere political subdivisions of the United States. State governments
are neither regional offices nor administrative agencies of the Federal
Government. The positions occupied by state officials appear nowhere on
the Federal Government's most detailed organizational chart.
505 U.S. at 188.
The United States argues that it is permissible for Congress to command
state officers to assist in the implementation of federal law so long as
Congress itself devises a clear legislative program that regulates the States
directly rather than requiring them to regulate third parties. The DPPA,
it is said, is constitutional because it directly regulates state activities
and neither directs the States or their officials to regulate their citizens,
nor to construct any regulatory regime.
We disagree. To be sure, Congress may require the States to comply with
federal regulation of an activity affecting interstate commerce when the
States choose to engage in that activity.6 Thus, the States as employers
must comply with the federal minimum wage law. Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985). See also South Carolina v. Baker,
485 U.S. 505, 511-15 (1988) (States may be required to issue bonds in registered
form as are private corporations); United Transp. Union v. Long Island R.
Co., 455 U.S. 678 (1982) (labor laws apply to state-owned railroads); Fry
v. United States, 421 U.S. 542 (1975) (States are bound by generally applicable
wage and price controls).
But all of these cases are examples of when a particularly strong federal
interest permits Congress to bring state governments within the orbit of
generally applicable federal regulation. Garcia, 469 U.S. at 554 ("San
Antonio faces nothing more than the same minimum-wage and overtime obligations
that hundreds of thousands of other employers, public as well as private,
have to meet"). In Printz and New York, the Supreme Court distinguished
such laws of general applicability from laws targeted exclusively at States.
117 S. Ct. at 2383; 505 U.S. at 160. Although the Tenth Amendment does not
automatically permit the former and proscribe the latter, in the cases cited
above the issue was whether the incidental application to the States of
federal laws of general applicability excessively interfered with the functioning
of state governments. The federal laws at issue were upheld because the
federal interest was strong enough to permit Congress to bring state governments
within the orbit of generally applicable federal regulation.
The Court has made clear, however, that where, as here, the "whole
object of the law [is] to direct the functioning of the state executive,
and hence to compromise the structural framework of dual sovereignty, such
a 'balancing' analysis is inappropriate." 117 S. Ct. at 2383. See also
New York, 505 U.S. at 160 (radioactive waste statute unconstitutional because
the "[take title] provision is inconsistent with the federal structure
of our Government established by the Constitution"). Instead of bringing
the States within the scope of an otherwise generally applicable law, Congress
passed the DPPA specifically to regulate the States' control of the States'
own property-the motor vehicle records. "It is the very principle of
separate state sovereignty that such a law offends, and no comparative assessment
of the various interests can overcome that fundamental defect." Printz,
117 S. Ct. at 2383.7
It is not state power that the principle of state sovereignty protects.
When States are forced to administer federal programs, a fundamental attribute
of State sovereignty is threatened: democratic accountability. It is this
basic principle upon which the Supreme Court rested its holdings in New
York and Printz:
By forcing state governments to absorb the financial burden of implementing
a federal regulatory program, Members of Congress can take credit for "solving"
problems without having to ask their constituents to pay for the solutions
with higher federal taxes. And even when the States are not forced to absorb
the costs of implementing a federal program, they are still put in the position
of taking the blame for its burdensomeness and for its defects. . . . Under
the present law, for example, it will be the CLEO and not some federal official
who stands between the gun purchaser and immediate possession of his gun.
And it will likely be the CLEO, not some federal official, who will be blamed
for any error (even one in the designated federal database) that causes
a purchaser to be mistakenly rejected.
117 S. Ct. 2365. The Court also observed in New York:
But where the Federal Government directs the States to regulate, it may
be state officials who will be the brunt of public disapproval, while the
federal officials who devised the regulatory program may remain insulated
from the electoral ramifications of their decision. Accountability is thus
diminished when, due to federal coercion, elected state officials cannot
regulate in accordance with the views of the local electorate in matters
not pre-empted by federal regulation.
505 U.S. at 169 (citations omitted). Thus, when Congress requires the States
to administer a federal program, democratic accountability is diminished
and for this reason the Tenth Amendment is offended.
This Act cannot be saved by the argument that it simply regulates a realm
of national economic activity-the buying and selling of personal information-whether
or not the economic actors happen to be State or citizens.8 The DPPA is
not a law of general applicability.9 Only States collect driver's license
and motor vehicle information. This is an exercise of sovereignty. See Peel
v. Florida Dept. of Transp., 600 F.2d 1070, 1083 (5th Cir. 1979) ("Overseeing
the transportation system of the state has traditionally been one of the
functions of state government, and thus appears to be within the activities
protected by the tenth amendment"); United States v. Best, 573 F.2d
1095, 1103 (9th Cir. 1978) ("[T]here is little question that the licensing
of drivers constitutes 'an integral portion of those governmental services
which the States and their political subdivisions have traditionally afforded
their citizens'").
Thus, we conclude that the DPPA is a federal program which Congress has
commanded the States to administer. As such, it offends the Tenth Amendment.10
Accord Condon v. Reno, 155 F.3d 453 (4th Cir. 1998). But see Travis v. Reno,
163 F.3d 1000 (7th Cir. 1998); Oklahoma v. United States, 161 F.3d 1266
(10th Cir. 1998).
III.
The judgment of the district court is hereby REVERSED, and the case is REMANDED.
The district court shall grant Alabama's motion for an injunction against
the enforcement of the DPPA.
1 Section 2725(3) of the Act defines personal
information as:
information that identifies an individual, including an individual's photograph,
social security number, driver identification number, name, address (but
not the five-digit zip code), telephone number, and medical or disability
information, but does not include information on vehicular accident, driving
violations, and driver's status.
2 Section 2725(1) of the Act defines a "motor vehicle record"
as:
any record that pertains to a motor vehicle operator's permit, motor vehicle
title, motor vehicle registration, or identification card issued by a department
of motor vehicles.
3 The United States' motion was for dismissal which the district court construed
as a motion for summary judgment pursuant to Rule 12(b), Fed.R.Civ.P.
4 During floor debate on the Senate version of the Act, Senators invoked
the example of Rebecca Shaeffer, an actress from California, who was murdered
by an obsessed fan who obtained her address from the department of motor
vehicles through a private investigator. See 139 Cong. Rec. S15,766, Comments
of Senator Harkin. See also (Feb. 4, 1994) (statement of Rep. Moran): 139
Cong. Rec. S15,762 (Nov. 16, 1993) (statement of Sen. Boxer); 139 Cong.
Rec. S15,765 (Nov. 16, 1993) (statement of Sen. Robb); 139 Cong. Rec. S15,765
(statement of Sen. Biden).
5 This requirement nullifies the United States' argument that the Act does
not command the States to do anything because the States may simply opt
out of this legislation by deciding to close their DMV records completely.
6 In fact, Congress may totally occupy a field of regulation of interstate
commerce but permit continued state regulation of the activity so long as
a State meets certain preconditions. The DPPA does not, however, preempt
the field of licensing drivers. Nor does it impose preconditions to the
States' continued regulation of a totally preempted field. It seeks only
to direct the States in that regulation.
7 The United States suggests that the DPPA is generally applicable when
considered in the context of other federal laws which regulate the dissemination
of personal information, such as the Video Privacy Protection Act, 18 U.S.C.
§ 2710 (restricting disclosure of personal information contained in
video rental records) and the Cable Communications Policy Act, 47 U.S.C.
§ 551 (restricting disclosure of personal information about cable subscribers).
Even if a statute could be considered generally applicable because it is
part of some sort of scheme of regulation, Congress has thus far regulated
the disclosure of personal information by holders of databases only in a
piecemeal fashion. There is no generally applicable Congressional regulation
of the disclosure of such information even if all such laws are considered
part of such a scheme. Thus, there is no generally applicable Congressional
regulation of this activity of which the DPPA is a part.
8 A similar argument was made in Printz that the burden on officers of the
state would be permissible if a similar burden were also imposed on private
parties with access to relevant data. The Court rejected this argument by
noting:
The Brady Act does not merely require CLEOs to report information in their
private possession. It requires them to provide information that belongs
to the State and is available to them only in their official capacity; and
to conduct investigations in their official capacity, by examining databases
and records that only state officials have access to. In other words, the
suggestion that extension of this statute to private citizens would eliminate
the constitutional problem posits the impossible.
117 S. Ct. at 2383.
9 Although the Act restricts the way in which private parties who obtain
personal information from a motor vehicle department may resell or redisclose
such information, the Act's applicability to private parties is incidental
to its foremost purpose: regulating the way in which state disseminate information
collected by their motor vehicle divisions.
10 We find no merit in the United States' contention that the Act is a valid
exercise of Congress' power to enforce the Fourteenth Amendment. U.S. Const.
amend. XIV, §§ 1, 5. Whether Congress properly exercised its power
under Section 5 in enacting the DPPA depends upon whether the Act enforces
some right guaranteed by the Fourteenth Amendment. According to the United
States, we have held that there is a "right to confidentiality"
in the sort of personal information protected by the DPPA. We disagree.
For example, in one of the cases cited by the United States, James v. City
of Douglas, 941 F.2d 1539, 1544 (11th Cir. 1991), we acknowledged a constitutional
right to privacy only for intimate personal information given to a state
official in confidence. Because information contained in motor vehicle records
is not this sort of information, an individual does not have a reasonable
expectation that the information is confidential. Thus, there is no constitutional
right to privacy in motor vehicle record information which the DPPA enforces.
We do not reach the Eleventh Amendment issue involving the constitutionality
of the fines provided for by the DPPA because we hold the Act unconstitutional
under the Tenth Amendment.
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
Civil Action No. 97-D-1396-N
BILL PRYOR, ATTORNEY GENERAL
FOR THE STATE OF ALABAMA,
AND THE STATE OF ALABAMA, PLAINTIFFS
v.
JANET RENO, ATTORNEY GENERAL OF THE
UNITED STATES, AND THE UNITED STATES OF AMERICA, DEFENDANTS
[Filed: Mar. 13, 1998]
MEMORANDUM OPINION AND ORDER
On September 18, 1997, Plaintiffs Bill Pryor, Attorney General for the State
of Alabama, and the State of Alabama (referred to collectively as "Plaintiffs,"
"Alabama" and "the State") filed this action, seeking
(1) a declaratory judgment that the Driver's Privacy Protection Act of 1994,
18 U.S.C. §§ 2721-25, is unconstitutional under the Tenth and
Eleventh Amendments to the United States Constitution, and (2) a preliminary
and permanent injunction prohibiting Defendants Janet Reno and the United
States (referred to collectively as "Defendants" and "the
United States") from enforcing the Act in whole or in part.1 Plaintiffs
filed a Motion for Summary Judgment on December 22, 1997. Defendants filed
a Motion to Dismiss on January 5, 1998, which, pursuant to Fed. R. Civ.
P. 12(b), the court construes as a Motion for Summary Judgment, as well.2
After careful consideration of the arguments of counsel, the relevant law
and the record as a whole, the court finds that Plaintiffs' Motion for Summary
Judgment is due to be denied, and Defendants' Motion for Summary Judgment
is due to be granted. Accordingly, Plaintiffs' Motion for Preliminary Injunction
is due to be denied as moot. This Memorandum Opinion and Order disposes
of all matters before the court.3
BACKGROUND
The Driver's Privacy and Protection Act of 1994 ("DPPA" or "the
Act"), 18 U.S.C. §§ 2721, et seq., regulates the sale, dissemination
and use by the State and private individuals of personal information contained
in State motor vehicle records.4 The Act prohibits "a State department
of motor vehicles, and any officer, employee, or contractor, thereof, [from]
knowingly disclos[ing] or otherwise mak[ing] available to any person or
entity personal information about any individual obtained by the department
in connection with a motor vehicle record." 18 U.S.C. § 2721(a).
It makes it unlawful for a State department of motor vehicles, and any officer,
employee, or contractor thereof, to knowingly disclose or otherwise make
available personal DMV information for any purpose other than a "permissible
use." 18 U.S.C. § 2721(b).5 State departments of motor vehicles
with a "policy or practice of substantial noncompliance" with
the Act's provisions are subject to a civil penalty of up to $5,000 a day
for each day of substantial noncompliance, to be imposed by the United States
Attorney General. 18 U.S.C. § 2723(b). Persons who knowingly violate
the Act are subject to criminal fines. 18 U.S.C. § 2723(a).
The DPPA also regulates private individuals' sale or disclosure of the above
information. The Act prohibits authorized recipients of personal DMV information
from reselling or redisclosing personal information for a use for which
the state could not have disclosed it in the first place. 18 U.S.C. §
2721(c); 18 U.S.C. § 2722(a). The Act requires that individuals reselling
or redisclosing personal information for a permissible use keep records
for five years stating to whom they have resold or redisclosed the information
and the purpose of any such release, and must make these records available
to the state department of motor vehicles upon request. 18 U.S.C. §
2721(c). Furthermore, the Act bars any person from knowingly obtaining personal
DMV information for any unauthorized use, 18 U.S.C. § 2722(a), and
from obtaining personal information "by false representation,"
18 U.S.C. § 2722(b). Individuals who knowingly violate these provisions
are subject to criminal fines, 18 U.S.C. § 2723(a), and private rights
of action by the person to whom the personal information pertains. 18 U.S.C.
§ 2724.
The Act does permit disclosure or use of personal DMV information in several
contexts, 18 U.S.C. § 2721(b)(1)-(14), and allows states to establish
waiver procedures to handle requests for disclosures that do not fall within
these exceptions. 18 U.S.C. § 2721(d). The DPPA allows states to release
personal information for any use not included in the Act's list of permissible
uses, if the motor vehicle department provides individuals an opportunity
to prohibit such disclosure. 18 U.S.C. § 2721(b)(11). Also, departments
of motor vehicles are permitted to release personal information for "bulk
distribution" for surveys, marketing or solicitations if individuals
have an opportunity to prohibit such disclosures. 18 U.S.C. § 2721(b)(12).
According to Defendants, Congress's purpose in enacting the DPPA was two-fold.
First, Congress enacted the DPPA as a means of regulating the sale of personal
DMV records for use in direct marketing, as numerous states sell or give
personal information to data-base compilers, who use it in compiling targeted
mailing lists sold or rented to direct marketers and individual companies
to target customers nationwide. (Defs.' Mem. in Supp. Mot. to Dis. and in
Opp. to Pls.' Mot. for Summ. J. ("Defs.' Mem. in Supp.") at 3-4.)
As Defendants note, in considering the Act, Congress heard testimony on
the way in which motor vehicle information is used in direct marketing.
See 1994 WL 212834, Statement of Mary J. Culnan.
As Defendants assert, Congress also sought to regulate the disclosure and
dissemination of personal DMV records in order to protect the privacy and
safety of individuals. (Defs.' Mem. in Supp. at 4-5.) For example, as Defendants
note, during testimony on the DPPA, Congress learned that, nationwide, criminals
have used motor vehicle records to locate victims and commit crimes, as
private citizens' addresses and phone numbers are easily accessible through
such records. (Defs.' Mem. in Supp. at 4-5.)6 During floor debate on the
Senate version of the Act, Senators invoked the example of Rebecca Shaeffer,
an actress from California, who was murdered by an obsessed fan who obtained
her address from the department of motor vehicles through a private investigator.
See 139 Cong. Rec. S15766, Comments of Senator Harkin.
Alabama contends that, in enacting the DPPA, Congress has exceeded its authority
under the Tenth and Eleventh Amendments. Specifically, the State contends
that the DPPA is an unconstitutional federal directive requiring the State
of Alabama, through its state executive officers and legislature, to administer
a federal program, which infringes on the State's sovereign right to legislate
and regulate its citizens, in violation of the Tenth Amendment. The State
further contends that the penalties imposed by the Act for noncompliance
violate the Eleventh Amendment. Defendants challenge Plaintiffs' standing
to bring this suit, and assert that the DPPA passes constitutional muster.
SUMMARY JUDGMENT STANDARD
On a motion for summary judgment, the court is to construe the evidence
and factual inferences arising therefrom in the light most favorable to
the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). Summary judgment can be entered on a claim only if it is shown "that
there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
As the Supreme Court has explained the summary judgment standard:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of proof
at trial. In such a situation, there can be no genuine issue as to any material
fact, since a complete failure of proof concerning an essential element
of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The trial court's
function at this juncture is not "to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)
(citations omitted). A dispute about a material fact is genuine if the evidence
is such that a reasonable jury could return a verdict for the nonmoving
party. Anderson, 477 U.S. at 248; see also Barfield v. Brierton, 883 F.2d
923, 933 (11th Cir. 1989).
The party seeking summary judgment has the initial burden of informing the
court of the basis for the motion and of establishing, based on relevant
"portions of 'the pleadings, depositions, answers to interrogatories,
and admissions in the file, together with affidavits, if any,'" that
there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. Once
this initial demonstration under Rule 56(c) is made, the burden of production,
not persuasion, shifts to the nonmoving party. The nonmoving party must
"go beyond the pleadings and by [his] own affidavits, or by the 'depositions,
answers to interrogatories, and admissions on file,' designate 'specific
facts showing that there is a genuine issue for trial.'" Celotex, 477
U.S. at 324; see also Fed. R. Civ. P. 56(e).
In meeting this burden the nonmoving party "must do more than simply
show that there is a metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
That party must demonstrate that there is a "genuine issue for trial."
Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 587. An action is void of
a material issue for trial "[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party."
Matsushita, 475 U.S. at 587; see also Anderson, 477 U.S. at 249.
DISCUSSION
I. STANDING
Article III of the Constitution restricts the jurisdiction of the federal
courts only to those disputes in which there is an actual "case"
or "controversy." See Raines v. Byrd, 117 S. Ct. 2312, 2317 (1997).
An essential element of the case-or-controversy requirement is that Plaintiffs
have standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). "In essence the question of standing is whether the litigant
is entitled to have the court decide the merits of the dispute or of particular
issues." Allen v. Wright, 468 U.S. 737, 750-51 (1984).
To have standing, the plaintiff must allege personal injury fairly traceable
to the defendant's allegedly unlawful conduct and likely to be redressed
by the requested relief. Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982). The
alleged injury must be "distinct and palpable," and not "abstract,"
"conjectural," or "hypothetical." Allen, 468 U.S. at
751 (citations omitted).
In a case such as this, where the court is asked to determine the constitutionality
of legislation, the court's standing inquiry is especially rigorous. Raines,
117 S. Ct. at 2317. Thus, before considering the merits of the case, and
before considering Plaintiff's request to issue a preliminary injunction,
the court must determine whether Plaintiffs have met their burden of establishing
that their claimed injury is personal, particularized, concrete, and otherwise
judicially cognizable. Raines, 117 S. Ct. at 2317. Plaintiffs must at least
establish that they have suffered an injury in fact- namely an "invasion
of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical." Lujan,
504 U.S. at 560.
Plaintiffs assert two grounds on which the court may find it has standing
to bring the instant action. First, Plaintiffs contend that the State has
standing to protect the "continued enforceablility of its own statutes."
(Pls.' Br. in Supp. of Mot. for Summ. J. at 5.) Specifically, Plaintiffs
contend that the DPPA conflicts with the State's present disclosure laws,
namely Alabama Code §§ 32-6-14, 32-7-4 and 36-12-40.
Alabama Code § 36-12-40, the "Open Records Act," states,
in relevant part:
Every citizen has a right to inspect and take a copy of any public writing
of this state, except as otherwise expressly provided by statute.
Ala. Code § 36-12-40 (1975). Plaintiffs contend that "[f]or Alabama
Department of Motor Vehicle officials to comply with the DPPA, they must
violate the letter and spirit of the Alabama 'Open Records Act' which requires
public writings be made available to the public." (Pls.' Br. in Supp.
of Mot. for Summ. J. at 5.)
Defendants contend that the DPPA does not, in fact, conflict with the Open
Records Act, as Alabama courts have repeatedly recognized that the provision
does not demand disclosures that will "result in undue harm or embarrassment
to an individual or where the public interest will clearly be adversely
affected, when weighed against the public policy considerations suggesting
disclosure." (Defs.' Mem. in Supp. at 11) (quoting Chambers v. Birmingham
News Co., 552 So.2d 854, 856 (Ala. 1989).) Plaintiffs contend, and the court
finds, that no Alabama court has deemed the information contained in the
DMV records to be an exception to the Open Records Act. Accordingly, the
court finds that Plaintiffs have established standing on this basis. See
Oklahoma v. United States, No. 97-1423, at 4 (W.D. Okl. Sept. 17, 1997)
(finding that Plaintiff established standing based on the DPPA's conflict
with the Oklahoma Open Records Act).
In addition and in the alternative, the court finds that the State has shown
that the DPPA imposes "substantial costs" on the State minimally
sufficient to establish its standing to bring suit. Plaintiffs contend that
"[f]ollowing the DPPA's restrictive disclosure guidelines requires
development of a new regulatory scheme and the training of DMV staff in
its effect and operation," resulting in the State incurring "substantial,
tangible costs." (Pls.' Brief in Supp of Pls.' Resp. to Order to Show
Cause and Defs.' Mot. to Dismiss at 3.) In support of this contention, Plaintiffs
offer the Affidavit of L.N. Hagan, the Director of the Alabama Department
of Public Safety, stating, in relevant part:
2. The DPPA would impose substantial cost and labor on the Department of
Public Safety if compliance with the Act is required.
* * * *
6. The implementation of DPPA would require the expense of training personnel
about what information may be released, to whom and for what purpose. We
would also need to retain personnel about the opt-out provisions for license
renewals and new licenses.
7. Since the DPPA carries both criminal and civil penalties for personnel
who release information on drivers licenses, training would have to be thorough
and detailed. My staff estimates the cost of training to be $16,520.
8. There is no question, if DPPA is fully implemented by the State of Alabama,
the Act will impose substantial expense and labor on the officers and employees
of the Department of Public Safety.
(Pls.' Amend. Compl., Ex. A., Hagan Aff. ("Hagan Aff.").)
Based on this Affidavit, the court finds that the State has shown that it
will suffer the incursion of costs minimally sufficient to establish standing
to bring this suit. See Condon v. Reno, 972 F.Supp. 977, 981 n. 12 (D.S.C.
1997) (finding that evidence contained in the "unrebutted affidavit"
of a Department of Motor Vehicles official that implementation of the DPPA
would "impose substantial costs and effort on the part of the Department
in order for it to achieve compliance" meets the requirements for standing).
Accordingly, the court finds that the State has standing to bring the instant
suit.
II. Tenth Amendment
The Tenth Amendment provides: "The Powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people." U.S. Const. amend. X.
In this way, "the constitution divides authority between federal and
state governments for the protection of individuals," and ensures that
our system of federalism is maintained. New York v. United States, 505 U.S.
144, 181 (1992). Alabama contends that the DPPA violates the Tenth Amendment
on two grounds. First, Alabama asserts that Congress exceeded its powers
by passing the DPPA pursuant to the Commerce Clause. Second, the State argues
that the DPPA imposes an unconstitutional obligation upon the State of Alabama
to regulate the disclosure of personal DMV records.
In determining whether Congress violated the Tenth Amendment in enacting
the DPPA, the court notes well that Congressional Acts are to be afforded
great deference and are entitled to a strong presumption of constitutional
validity. See Flemming v. Nestor, 363 U.S. 603, 617 (1960). "Judging
the constitutionality of an Act of Congress is properly considered 'the
gravest and most delicate duty that this Court is called upon to perform.'"
Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 319 (quoting
Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (internal quotations omitted)).
Hence, an Act of Congress will be invalidated only "for the most compelling
constitutional reasons." Mistretta v. United States, 488 U.S. 361,
384 (1984).
A. Congress's Authority to Pass the DPPA
Where Congress validly exercises authority delegated to it under the Constitution,
Congress does not violate the Tenth Amendment. Cheffer v. Reno, 55 F.3d
1517, 1519 (11th Cir. 1995) (citing United States v. Lopez, 459 F.2d 949,
951 (5th Cir.), cert. denied, 409 U.S. 878 (1972)).7 Defendants assert that
the DPPA was valid exercise of Congress's authority, under the Commerce
Clause, to regulate activities that affect interstate commerce. (Defs.'
Mem. in Supp. at 17) (citing United States v. Lopez, 514 U.S. 549, 550 58-59
(1995).) The State, however, contends that Congress exceeded its Constitutional
authority in legislating the State's release of public records, as such
release is neither commerce nor an activity substantially affecting commerce.
(Pls.' Br. in Supp. of Pls.' Resp. to Order to Show Cause and Defs.' Mot.
to Dis. at 3.) The State further contends that Congress's attempt to regulate
said release through its link to interstate commerce is too attenuated to
pass muster under the Supreme Court's holding in United States v. Lopez,
514 U.S. 549, 550 (1995). (Pls.' Br. in Supp. of Mot. for Summ. J. at 7.)
Article I, Section 8, Clause 3 of the Constitution empowers Congress to
"regulate Commerce . . . among the several states." U.S. Const.
art. I, § 8, cl. 3. Pursuant to this power, Congress may: (1) regulate
channels of interstate commerce; (2) regulate instrumentalities of, or persons
or things in, interstate commerce; and (3) regulate intrastate activities
that substantially affect interstate commerce. Lopez, 514 U.S. at 558-59.
Thus, a statute need not regulate economic activity directly in order to
satisfy the requirements of the Commerce Clause. USA v. Olin, 107 F.3d 1506,
1509 (11th Cir. 1997) (citing Lopez, 514 U.S. at 558-59).
However, where Congress seeks to regulate activities arising out of or connected
to a commercial transaction, such activities, viewed in the aggregate, must
be found to "substantially affect[] interstate commerce." Lopez,
514 U.S. at 561. The statute "must bear more than a generic relationship
several steps removed from interstate commerce, and it must be a relationship
that is apparent, not creatively inferred." United States v. Wright,
117 F.3d 1265, 1270 (11th Cir. 1997) (quoting United States v. Kenney, 91
F.3d 884, 888 (7th Cir. 1996)), vacated in part on r'hring, 1998 WL 29636
(11th Cir. 1998). "Where economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained."
Lopez, 514 U.S. at 559.
The Eleventh Circuit has stated that Lopez does not require that Congress
make formal legislative findings connecting the regulated activity to interstate
commerce. Wright, 117 F.3d at 1269 (citing Olin, 107 F.3d at 1510). Rather,
so long as Congress has a "rational basis" for concluding that
a regulated activity sufficiently affects interstate commerce, its validity
under the Commerce Clause is sound. Id. (citing Lopez, 514 U.S. at 557).
Thus, the DPPA survives Commerce Clause scrutiny if the court finds that
Congress had a rational basis to conclude that the conduct regulated by
the DPPA "arises out of or is connected with a commercial transaction,
which, viewed in the aggregate, substantially affects interstate commerce,"
so long as that connection is not too attenuated. Wright, 117 F.3d at 1270
(quoting Lopez, 514 U.S. at 561).
Defendants contend that Congress's passage of the DPPA was a valid exercise
of its Commerce Clause powers, as Congress enacted the DPPA for the purpose
of regulating "the buying and selling, or disclosing and receiving,
of a commodity, personal information, in a national commercial market that
trades in it." (Defs.' Mem. in Supp. at 19.) Defendants urge that Congress
had a solid foundation for linking the DPPA to interstate commerce, as "States'
release of personal DMV information into the national market for personal
information clearly has a substantial effect on interstate commerce."
(Defs.' Mem. in Supp. at 35 n. 33.) In support of this contention, Defendants
cite testimony contained in the Congressional Record concerning the DPPA.
For instance, in considering the DPPA, Congress heard testimony regarding
the wide scope of nationwide trade in personal DMV information. (Defs.'
Mem. in Supp. at 19 (citing 139 Cong. Rec. S15,764 (statement of Sen. Boxer);
id. (statement of Sen. Warner); id. at S15,765 (statement of Sen. Robb);
140 Cong. Rec. H2,522 (Apr. 20, 1994) (statement of Rep. Moran); id. at
H2,526 (statement of Rep. Goss)). This trade, in which more than half of
the States are engaged, includes the sale of personal DMV records to businesses
who use it in direct marketing nationwide. Id.
Plaintiffs challenge Defendants' characterization of the disclosure of information
contained in the DMV records as "commerce." Specifically, Plaintiffs
argue that Alabama does not and never has trafficked in the commercial sale
of public motor vehicle records. Rather, the State charges only a "nominal
fee to cover administrative expenses related to the release of public writings."
(Amend. Compl. ¶ 15.) Thus, Plaintiffs argue, the federal government's
justification of the law as regulation of commercial activity in which states
are "market participants" is "inapposite." (Pls.' Br.
in Supp. of Mot. for Summ. J. at 7.) Any link between the State's public
disclosure laws and interstate commerce, Plaintiffs argue, is attenuated
at best. (Pls.' Resp. to Order to Show Cause and Defs.' Mot. to Dis. at
4.)
The court finds that Congress had a rational basis to conclude that States'
disclosure of personal DMV records has a substantial, apparent, effect on
interstate commerce sufficient to withstand scrutiny under the Tenth Amendment.
See Wright, 117 F.3d at 1270. Even viewing the record before the court in
a light most favorable to the State, it is nevertheless apparent that Congress,
in considering the DPPA, heard testimony revealing that, once released,
personal DMV information is often used in direct marketing campaigns or
resold by database-compiling companies to other companies for use in direct-
marketing campaigns. (See Statement of Dr. Mary J. Culnan, 1994 WL 14168083,
attached as Ex. 5 to Pls.' Mem. in Supp.) Furthermore, Congress learned
that direct marketing is a "national" industry, as list compilers
serve customers a "national audience" of customers. (See id.)
Thus, whether Alabama receives a profit from the disclosure of personal
DMV information, or otherwise "traffic[s] in the commercial sale"
of personal DMV information is irrelevant. Rather, Congress concluded that
the very fact that such information is disclosed substantially impacts the
national trade of DMV records. Hence, regulation of all States' disclosure
of personal DMV records is necessary for the regulation of the interstate
trade of such records. Accordingly, the court finds that Congress had an
apparent and rational basis for finding that the regulation of States' disclosure
of personal DMV records has a substantial effect on interstate trade. As
the court need not pile "inference upon inference" in order to
reach this conclusion, the Act falls within the scope of Congress's authority
pursuant to the Commerce Clause. See Lopez, 514 U.S. at 559, 566.8
B. The DPPA Does Not Compel the State to Regulate
Congress's power under the Commerce Clause to regulate activities substantially
affecting interstate commerce authorizes Congress to regulate state activities,
as well. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985)
(upholding federal statute requiring states to pay their employees according
to minimum wage and overtime standards). However, this authority is limited;
Congress may not compel states or state officers to regulate. Printz v.
United States, 117 S. Ct. 2365, 2384 (1997); New York v. United States,
505 U.S. 144, 175-76 (1992). In its Motion for Summary Judgment, Alabama
asserts that the DPPA exceeds Congress's authority to regulate the States,
as the statute is an unconstitutional federal directive requiring the State
of Alabama to administer a federal program.
In essence, the State argues, rather than regulate the commercial users
of the information contained in the DMV records, the DPPA commands the States
to regulate the users of the information. (Pls.' Br. in Supp. of Mot. for
Summ. J. at 7.) Alabama contends that the DPPA "commandeers the legislative
processes of the States by directly compelling them to enact and enforce
a federal regulatory program." Id. at 176. In particular, the State
argues, because only States title and register motor vehicles and license
individuals to drive on public roads, only States can authorize the initial
release of the information collected therein. (Pls.' Br. in Supp. of Pls.'
Resp. to Order to Show Cause and Defs.' Mot. to Dis. at 6.) Thus, Alabama
argues, the DPPA is an attempt by Congress to require that States regulate
their own activity, namely the release of DMV records. (Id.) In order for
States to come into compliance with the regulations issued by the DPPA,
they must, in fact, develop and enforce new regulatory schemes to meet the
federal goals articulated in the Act. (Id.) This violates the Tenth Amendment,
Plaintiffs argue, as "Congress insulates itself from accountability
to the citizenry by shifting the apparent blame for any problems to the
State actors implementing the Act on Congress's behalf." (Id.) As basis
for this argument, the State relies heavily on New York v. United States,
505 U.S. 144 (1992), and Printz v. United States, 117 S. Ct. 2365 (1997).
In New York v. United States, the Supreme Court addressed the constitutionality
of the "take title" provision of the federal Low-Level Radioactive
Waste Policy Act, which required States to chose between accepting ownership
of waste generated within their borders and regulating according to instructions
of Congress. New York, 505 U.S. at 152. The Court held that the provision
violated the Tenth Amendment, as both "choices" given the States
were "unconstitutionally coercive regulatory techniques." Id.
at 176. The Court found that this provision "commandeers the legislative
processes of the States by directly compelling them to enact and enforce
a federal regulatory program," in violation of the powers given Congress
under the Constitution Id. at 176. In sum, the Court held that "[t]he
Federal Government may not compel the States to enact or administer a federal
regulatory program." New York, 505 U.S. at 188.
[E]ven where Congress has the authority under the Constitution to pass laws
requiring or prohibiting certain acts, it lacks the power directly to compel
the states to require or prohibit those acts. The allocation of power in
the Commerce Clause, for example, authorizes Congress to regulate interstate
commerce directly, it does not authorize Congress to regulate state government's
regulation of interstate commerce.
New York, 505 U.S. at 166.
In Printz v. United States, the Court expanded its holding in New York.
There, the Court held unconstitutional provisions of the Brady Handgun Violence
Prevention Act imposing interim requirements on State chief law enforcement
officers ("CLEOs") to conduct background checks on prospective
handgun purchasers and to perform related tasks. Printz, 117 S. Ct. at 2368.
Specifically, the Act required that CLEOs:
make a reasonable effort to ascertain within 5 business days whether receipt
or possession [of a firearm by a particular purchaser] would be in violation
of the law, including research in whatever state and local recordkeeping
systems are available.
Printz, 117 S. Ct. at 2369 (quoting 18 U.S.C. § 922(s)(2)). The Court
characterized this provision as one directing or forcing state law enforcement
officers to participate in the administration of a federally enacted regulatory
scheme. Printz, 117 S. Ct. at 2369, 2376. The Court held that such a requirement
violated the Constitution, because:
[t]he Federal Government may neither issue directives requiring the States
to address particular problems, nor command the States' officers, or those
of their political subdivisions, to administer or enforce a federal regulatory
program. It matters not whether policymaking is involved, and no case-by-case
weighing of burdens or benefits is necessary; such commands are fundamentally
incompatible with our constitutional system of dual sovereignty.
Printz, 117 S. Ct. at 2384.
A basic principle upon which the Supreme Court rests its holdings in New
York and Printz is the allocation of accountability between States and the
federal government. "By forcing state governments to absorb the financial
burden of implementing a federal regulatory program, Members of Congress
can take credit for 'solving' problems without having to ask their constituents
to pay for the solutions with higher federal taxes. And even when the States
are not forced to absorb the costs of implementing a federal program, they
are still put in the position of taking the blame for its burdensomeness
and for its defects." Printz, 117 S. Ct. at 2382.
In characterizing the DPPA as "a federal mandate that requires the
State of Alabama to design, implement and enforce administrative procedures
regulating its release and its citizens' access to and use of motor vehicle
records," the State analogizes the DPPA to the act at issue in Printz.
(Pls.' Br. in Supp. of Mot. for Summ. J. at 10.) "Much like the portion
of the 'Brady Bill' which commandeered participation of State law enforcement,
the DPPA mandates 'the forced participation of the States' executive in
the actual administration of a federal program'" by prohibiting States
from releasing privacy related records, except in accordance with a federal
plan. (Pls.' Br. in Supp. of Mot. for Summ. J. at 8, 9 (quoting Printz,
117 S. Ct. at 2376).)
Defendants contend that Alabama's argument misconstrues both the DPPA and
Tenth Amendment jurisprudence, and urge the court to critically evaluate
Plaintiffs' representation of the DPPA, and that of the other District Courts
which have addressed its constitutionality.9 According to Defendants, rather
than directing States to regulate, the DPPA directly regulates state activities
that substantially affect interstate commerce, as the DPPA neither directs
the States or their officials to regulate their citizens, nor to construct
any regulatory regime. (Defs.' Mem. in Supp. at 16.)
Defendants analogize the DPPA to other constitutional regulations the federal
government imposes directly on the States. (Defs.' Mem. in Supp. at 18-19)
(citing Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)
(allowing federal legislation requiring States to pay their employees according
to federal minimum wage and overtime standards); E.E.O.C. v. Wyoming, 460
U.S. 226 (1983) (allowing federal regulation ordering States not to discriminate
against their employees on the basis of age).) Defendants argue that, like
these constitutional statutes, "the DPPA simply regulates a realm of
national economic activity-here, the buying and selling, or disclosing and
receiving, of a commodity, personal information, in a national commercial
market that trades in it-whether or not the economic actors happen to be
States or citizens." (Defs.' Mem. in Supp. at 19.)
Defendants distinguish the statute at issue here from those found unconstitutional
in New York and Printz. In this statute, unlike those at issue in New York
and Printz, "Congress has set forth a comprehensive scheme directly
regulating individuals' disclosure and states' disclosures of personal information.
It has not enlisted the States to do either job for it." (Defs.' Mem.
in Supp. at 25.) Defendants argue that "the DPPA directs neither states
or their officials to regulate individuals' behavior for it, nor compels
States to craft new administrative or legislative schemes designed to regulate
the state's own activities." (Defs.' Mem. in Supp. at 23.)
Specifically, Defendants argue, the DPPA does not "call upon states
or state officials to legislate pursuant to congressional direction,"
nor does the DPPA "conscript state officers to help the federal government
search for potential violations of federal law." (Defs.' Mem. in Supp.
at 23.) The DPPA does not require that State officials report or arrest
violators of the Act; nor does it require States to ensure that state citizens
not use, sell or otherwise violate the Act. (Defs.' Mem. in Supp. at 24.)
Rather, Defendants argue, the DPPA "directly regulates individuals'
use of that information." (Defs.' Mem. at 24.) Further, Defendants
argue, the DPPA does not impermissibly compel States to pass laws or invent
administrative schemes to govern their own activities; Congress itself has
articulated a federal regulatory scheme to directly regulate the state activities
by setting forth restrictions on disclosure of personal DMV information
by States and private individuals. (Defs.' Mem. in Supp. at 24-25.) In sum,
Defendants argue, the DPPA requires no regulatory or enforcement action
on the part of the State or state officials. (Defs.' Mem. at 25.)
The court agrees with Defendants' characterization of the DPPA and finds
that the DPPA is not the type federal legislation prohibited by New York
and Printz. Rather, the court finds that the DPPA is analogous to the statute
found constitutional in South Carolina v. Baker, 485 U.S. 505 (1988). There,
the Court upheld the constitutionality of an Internal Revenue Code provision
denying federal income tax exemptions for interest earned on state issued
unregistered ("bearer") bonds, specifically rejecting South Carolina's
argument that the provision violated the Tenth Amendment. Id. at 515. In
reaching its holding, the Court analyzed the provision as if it directly
regulated the States by prohibiting outright the issuance of bearer bonds.
Id. at 511. As in the instant case, the State in South Carolina v. Baker
argued that the prohibition "commandeers the state legislative and
administrative process by coercing States into enacting legislation"
and administrating a scheme to comply with the federal provision. Id. at
513.
The Court held, however, that the provision at issue in South Carolina v.
Baker regulates state activities- specifically the issuance of non-registered
bonds- rather than the manner in which States regulate private parties.
Id. at 514. The Court rejected the State's argument that the provision,
though regulating the state, nevertheless commandeers the State legislative
and administrative process because the State's legislature had to amend
numerous statutes to comply with the federal provision, and because state
officials would be required to "devote substantial effort to determine
how best to implement" the system required by the federal provision.
Id. at 514. The Court stated:
Such "commandeering" is, however, an inevitable consequence of
regulating a state activity. Any federal regulation demands compliance.
That a State wishing to engage in certain activity must take administrative
and sometimes legislative action to comply with federal standards regulating
that activity is a commonplace that presents no constitutional defect.
South Carolina, 485 U.S. at 514-15. The Court further stated that "Congress
could constitutionally impose federal requirements on States that States
could meet only by amending their statutes." South Carolina, 485 U.S.
at 515. See also Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S.
742, 762 (1982) ("FERC") ("[T]here are instances where the
Court has upheld federal statutory structures that in effect directed state
decisionmakers to take or to refrain from taking certain actions.").
The court finds that the DPPA, like the statute at issue in South Carolina
v. Baker, is one which directly regulates the states, rather than requires
the states to administer or enforce a federal regulation. This distinguishes
the DPPA from the provisions at issue in New York and Printz-both of which
the Court found required States to regulate certain activity according to
the instructions of Congress. New York, 505 U.S. at 175; Printz, 117 S.
Ct. at 2383. As Defendants note, the DPPA neither asks State officials to
arrest or report violators of the DPPA, nor does it require States to ensure
that state citizens do not use, sell or otherwise re-disclose personal DMV
information. Unlike the provision at issue in Printz, the DPPA requires
no affirmative action by the State or its officers. See Printz, 117 S. Ct.
at 2369.
Rather, the DPPA merely prohibits States from disclosing personal DMV records
for any impermissible purpose; the DPPA itself directly regulates individuals'
use of such information by governing how authorized individuals may resell
or re-disclose personal DMV information, making it unlawful for persons
to knowingly obtain or disclose personal DMV information for an improper
use, and making it unlawful for persons to make false representations to
obtain personal DMV records. 18 U.S.C. §§ 2721(c); 2722(a) and
(b). The Act provides for fines against individuals who knowingly violate
the Act, 18 U.S.C. § 2723(a), as well as authorizes civil actions against
individuals who knowingly obtain, disclose or use personal information from
a motor vehicle record for an improper use. 18 U.S.C. § 2724. As Defendants
state, nothing in the DPPA requires that States or State officials legislate
solutions to solve the federally-identified problem of improper disclosure
of personal records contained in DMV records. Rather, the DPPA sets forth
a bar on the dissemination of information except as provided in the DPPA
by both the State and private individuals. Thus, as in South Carolina v.
Baker, Congress has simply enacted a prohibition on certain State activity.
Alabama may, indeed, incur some administrative and personnel costs associated
with compliance with the Act. (See Hagan Aff.) However, the DPPA does not
mandate that Alabama enact any specific legislation or regulation; nor does
the Act require that the State take any specific action in furtherance of
a federal goal.10 The fact that the State may have to "take administrative
and sometimes legislative action to comply with federal standards regulating
that activity is a commonplace that presents no constitutional defect."
South Carolina, 485 U.S. at 514-15.11
This court is keenly aware of the Supreme Court's trend, indicated by New
York and Printz, of invalidating federal legislation on grounds that it
"commandeers" state legislative and administrative processes.
Yet, despite these recent holdings prohibiting Congress from compelling
the States to enact or administer federal regulatory programs, South Carolina
v. Baker is still good law. The Court has yet to hold that, where a federal
regulation merely demands State compliance, necessitating the State take
administrative or even legislative action to achieve such compliance, such
regulation amounts to impermissible "commandeering" of the State's
legislative or administrative process. Because the court finds that the
DPPA falls within the scope of South Carolina v. Baker, rather than New
York and Printz, the court must also find that the DPPA presents no constitutional
defect.
Judicial self-restraint mandates the duty of the court to follow controlling
precedent, like it or not. While the law may well be changed by the Eleventh
Circuit or the Supreme Court, trial courts do not make law-indeed do not
even dictate "holdings"-but instead find facts and apply the existing
law. Accordingly, it is not within the province of this district court to
expand the Court's holdings in New York or Printz to encompass the present
instance. Rather, the court is obligated to follow precedent. The Supreme
Court has recently reaffirmed the principle that "if a precedent of
[The Supreme] Court has direct application in a case, yet appears to rest
on reasons rejected in some other line of decisions, the [district court]
should follow the case which directly controls, leaving to [the Supreme
Court] the prerogative of overruling its own decisions." Agostini v.
Felton, 117 S. Ct. 1997, 2017 (1997) (quoting Rodriguez de Quijas v. Shearson/American
Express, 490 U.S. 477, 484 (1989)).
Hence, the court finds it is bound by the Supreme Court's holding South
Carolina v. Baker. The DPPA does not violate the Tenth Amendment, as it
is a direct prohibition on the State from releasing personal DMV records
for impermissible purposes, rather than a regulation requiring the State
to enforce the federal government's ban on personal DMV disclosures. While
the court is keenly aware of the way in which "forcing state governments
to absorb the financial burden of implementing a federal regulatory program"
threatens the balance of our system of federalism, Printz, 117 S. Ct. at
2382, any costs incurred by the State, or actions that the State must take
as it attempts to come into compliance with the DPPA, do not amount to the
"commandeering" found impermissible in New York and Printz. See
South Carolina, 485 U.S. at 514-15.12 Based on the foregoing, the court
finds that the DPPA does not violate the Tenth Amendment.
III. Eleventh Amendment
Alabama would also urge the court to find that the DPPA violates the Eleventh
Amendment to the United States Constitution. The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.
U.S. Const. amend. XI.
Plaintiffs argue that two provisions within the DPPA violate the Eleventh
Amendment. First, § 2723(b) of the Act provides for a $5,000 a day
civil penalty against the state for noncompliance. It states:
Any State department of motor vehicles that has a policy or practice of
substantial noncompliance with this chapter shall be subject to a civil
penalty imposed by the Attorney General of not more than $5,000 a day for
each day of substantial noncompliance.
18 U.S.C. § 2723(b).
In addition, the Act provides for a civil damages remedy against a person
who knowingly discloses personal information from a motor vehicle record.
18 U.S.C. § 2724(a) provides:
A person who knowingly obtains, discloses or uses personal information,
from a motor vehicle record, for a purpose not permitted under this chapter,
shall be liable to the individual to whom the information pertains, who
may bring a civil action in a United States district court.
18 U.S.C. § 2724(a).
The Act further provides that, pursuant to this civil action remedy, the
court may award actual damages of not less than liquidated damages in the
amount of $2,500, punitive damages upon proof of willful or reckless disregard
of the law, reasonable attorneys fees and costs, as well as other equitable
relief. 18 U.S.C. § 2724(b).
Plaintiffs argue that these provisions violate the Eleventh Amendment because
they allow for suits against state employees and agents. Plaintiffs cite
Seminole Tribe of Florida v. Florida, 517 U.S. 609 (1996), for the proposition
that the Commerce Clause does not grant Congress the power to abrogate the
States' sovereign immunity. Thus, absent a waiver by the State, Congress
may not authorize suit against the state.
"[T]he Eleventh Amendment bars suits in federal court 'by private parties
seeking to impose a liability which must be paid from public funds in the
state treasury.'" Hafer v. Melo, 502 U.S. 21, 30 (1991) (quoting Edelman
v. Jordan, 415 U.S. 651, 663 (1974)). However, "the Eleventh Amendment
does not erect a barrier against suits to impose 'individual and personal
liability' on state officials." Hafer, 502 U.S. at 30-31. Thus, where
a statute authorizes suit against state employees personally, the Eleventh
Amendment erects no bar. See Hafer, 502 U.S. at 31; Cross v. State of Alabama,
49 F.3d 1490, 1503 (11th Cir. 1995).
The court finds that the DPPA does not authorize suits by private individuals
against the State. The definitional section of the DPPA clearly indicates
that any suits authorized by the DPPA against "any person" knowingly
disclosing personal information from a motor vehicle record in violation
of the DPPA excludes suits against the State or State agencies. Specifically,
18 U.S.C. § 2725(2) states:
"person" means an individual, organization or entity, but does
not include a State or agency thereof.
18 U.S.C. § 2725(2). Hence, by its own terms, the Act authorizes private
suits against individuals, yet precludes such suits against the state.13
Plaintiffs would have the court find that § 2725(1)'s definition of
"person" is irrelevant for purposes of Eleventh Amendment analysis.
Plaintiffs state that, because "the primary 'disclosures' of information
defined by the DPPA are state DMV employees, 18 U.S.C. § 2724(a) clearly
exposes state employees to suit and thus effectively authorizes damage suits
against the states." (Pls.' Br. in Supp. of Pls.' Mot. for Summ. J.
at 10-11.) Alabama argues that to interpret "persons" not to include
State actors but to expose State workers to personal financial liability
for following the instructions of their superiors would render the statute
meaningless. (Pls.' Resp. to Order to Show Cause and Defs.' Mot. to Dis.
at 7.) Alabama states that, because only State employees have access and
ability to make an initial release of personal DMV information, suits against
State employees for following State law and procedure (presumably in accordance
with Alabama's Open Records Act) as relates to the DPPA "must necessarily
be a claim against the State and therefore subject to Eleventh amendment
immunity." (Pls.' Resp. to Order to Show Cause and Defs.' Mot. to Dismiss
at 7.) Plaintiffs further argue that, should the court accept Defendants'
interpretation of the statute, personal immunity defenses allowed for state
employees would render the statute meaningless as well. (Id. at 8.)
Although the State would have the court find that such a reading of the
statute renders it "meaningless," such a reading is the statute's
"plain meaning." Thus, the court construes the State's argument
as an invitation for the court to interpret the statute as authorizing suit
against state employees in their official capacity, despite the statute's
express words to the contrary. The court respectfully declines the State's
invitation to interpret the DPPA contrary to its clear meaning. Rather,
the court is mindful of its duty to respect the enactments of a legislative
body.
It is a maxim of statutory construction that a court must give plain meaning
to a statute where such meaning is patent. "[W]here the words of a
law, treaty, or contract, have a plain and obvious meaning, all construction,
in hostility with such meaning, is excluded. This is a maxim of law, and
a dictate of common sense." Green v. Biddle, 21 U.S. (8 Wheat.) 1,
89-90 (1821)). Furthermore, "[f]ederal statutes are to be so construed
as to avoid serious doubt of their constitutionality. 'When the validity
of an act of Congress is drawn in question, and even if a serious doubt
of constitutionality is raised, it is a cardinal principle that this Court
will first ascertain whether a construction of the statute is fairly possible
by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62
[(1932)]." Concrete Pipe & Products of Cal. v. Construction Laborers
Pension Trust for So. Cal., 508 U.S. 602, 628 (1993) (quoting Machinists
v. Street, 367 U.S. 740, 749-750 (1961)).
The State further argues that Congress is precluded by the Eleventh Amendment
from authorizing suit against the State by the United States. Accordingly,
the State argues, § 2723(b), authorizing the Attorney General to impose
a civil penalty against the State, is unconstitutional. The court finds
that this argument is patently frivolous. The Supreme Court has refused
to apply the Eleventh Amendment to bar federal court suits by the United
States government against a state. Rather, the Court has explicitly stated,
"the Federal Government can bring suit in federal court against a State."
Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1131 n. 14 (1996).
See also United States v. Mississippi, 380 U.S. 128, 140-41 (1965); United
States v. Texas, 143 U.S. 621, 641-47 (1892). Contrary to the State's contention,
it is irrelevant which Constitutional provision authorizes the statute in
question. Again, the court respectfully declines to override over one hundred
years of Supreme Court precedent to find that the Eleventh Amendment precludes
Congress from authorizing the United States to bring a suit against a State.
The court takes very seriously its oath and obligation to uphold the supreme
law of the land and would neither be presumptuous enough nor "activist"
enough to deem that it, as a district court, has the authority to make new
law. Accordingly, the court finds that the DPPA does not violate the Eleventh
Amendment to the United States Constitution.
ORDER
Based on the foregoing, the following is hereby CONSIDERED and ORDERED:
(1) Plaintiffs' Motion for Summary Judgment be and the same is hereby DENIED;
(2) Defendants' Motion to Dismiss, construed by the court as a Motion for
Summary Judgment, be and the same is hereby GRANTED;
(3) Plaintiffs' Motion for a Preliminary Injunction be and the same is hereby
DENIED as moot; and
(4) All costs herein incurred be and the same are hereby taxed against Plaintiff,
for which let execution issue.
Done this the 13th day of March, 1998.
/s/ IRA DE MENT
IRA DE MENT
UNITED STATES
DISTRICT JUDGE
1 On December 17, 1997, Plaintiffs filed an Amended Complaint and Motion
for Preliminary Injunction.
2 Rule 12(b) states that, if, on a motion to dismiss for failure to state
a claim upon which relief can be granted, "matters outside the pleading
are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in Rule 56, and
all parties shall be given reasonable opportunity to present all material
made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b).
Defendants filed a Memorandum in Support of Motion to Dismiss and Opposition
to Plaintiff's Motion for Summary Judgment on January 5, 1998, wherein Defendants
included citations to excerpts of Congressional testimony. Plaintiffs filed
a Response to Defendants' Motion to Dismiss on January 20, 1998. Defendants
filed a Reply to Plaintiffs' Response on January 27, 1998. Further, Plaintiffs
filed a Brief in Support of their Motion for Summary Judgment on December
23, 1997, to which Defendants' January 5, 1998 Memorandum also replied.
As Plaintiffs' own Motion for Summary Judgment refutes the contentions asserted
in Defendants' Motion to Dismiss, the court finds that Plaintiffs have had
a "reasonable opportunity" to present all material pertinent to
Defendants' Motion to construe it as a Motion for Summary Judgment. Fed.
R. Civ. P. 12(b).
In addition, Defendants filed an Opposition to Plaintiffs' Motion for a
Preliminary Injunction on January 5, 1998. On December 19, 1997, the court
entered an Order setting a hearing on Plaintiffs' Motion for Preliminary
Injunction for February 13, 1998. The court further Ordered a briefing schedule
on Plaintiffs' Motion. Plaintiffs filed a Brief in Support of Plaintiffs'
Motion for a Preliminary Injunction on January 20, 1998. Defendants filed
a Response to Issues Raised in Plaintiffs' Reply in Support of Motion for
Preliminary Injunction on January 27, 1998. On February 9, 1998, the court,
having been fully briefed on the matters pending in Plaintiffs' Motion for
Preliminary Injunction, entered an Order canceling the Hearing set for February
13, 1998.
3 The elements of a permanent injunction and a preliminary injunction are
similar, the sole exception being that the movant must actually prevail,
as opposed to showing a likelihood of success on the merits, in order to
receive a permanent injunction. See e.g., Statewide Detective Agency v.
Miller, 115 F.3d 904, 905 (11th Cir. 1997); Shatel Corp. v. Mao Ta Lumber
and Yacht Corp., 697 F.2d 1352, 1354-55 (11th Cir. 1983). Having been extensively
briefed on the merits of all relevant issues, the court properly resolves
the merits of this action.
4 The statute defines a "motor vehicle record" as:
any record that pertains to a motor vehicle operator's permit, motor vehicle
title, motor vehicle registration, or identification card issued by a department
of motor vehicles.
18 U.S.C. § 2725(1).
The DPPA defines "personal information" as:
information that identifies an individual, including an individual's photograph,
social security number, driver identification number, name, address (but
not the five-digit zip code), telephone number, and medical or disability
information, but does not include information on vehicular accidents, driving
violations, and driver's status.
18 U.S.C. § 2725(3).
5 The Act allows for the disclosure of personal information in abundant
circumstances. 18 U.S.C. § 2721(b). For example, such information may
be disclosed for use by any government agency in carrying out its functions,
id. § 2721(b)(1); in connection with car or driver safety, theft and
other motor-vehicle related matters, id. § 2721(b)(2); for use in the
normal course of business by a legitimate business in certain instances,
id. § 2721(b)(3); for use in connection with any civil, criminal, administrative
or arbitral proceedings in any Federal, State, or local court or agency
or before any self- regulatory body, id. § 2721(b)(4); for use in research
activities, and for use in producing statistical reports, so long as the
personal information is not published, redisclosed, or used to contact individuals,
id. § 2721(b)(5); for use by an insurer or insurance support organization,
or by a self-insured entity, or its agents, employees, or contractors, in
connection with claims investigation activities, antifraud activities, rating
or underwriting, id. § 2721(b)(6); for use in providing notice to owners
of towed or impounded vehicles, id. § 2721(b)(7); for use by any licensed
private investigative agency or licensed security service for any purpose
permitted under the Act, id. § 2721(b)(8); for use by an employer or
its agent or insurer to obtain or verify required information relating to
a holder of a commercial driver's license, id. § 2721(b)(9); and for
use in connection with the operation of private toll transportation facilities,
id. § 2721(b)(10).
6 Citing 1994 WL 14167988 (Feb. 4, 1994) (statement of Rep. Moran); 1994
WL 14168013 (Feb. 3, 1994) (statement of David Beatty); 1994 WL 14168055
(Feb. 3, 1994) (statement of Donald H. Cahill); 139 Cong. Rec. S15,762 (Nov.
16, 1993) (statement of Sen. Boxer); 139 Cong. Rec. S15,765 (Nov. 16. 1993)
(statement of Sen. Robb); 139 Cong. Rec. S15,765 (statement of Sen. Biden).
7 Decisions of the Former Fifth Circuit filed prior to October 1, 1981,
constitute binding precedent in the Eleventh Circuit. Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
8 Defendants also note that Congress passed the DPPA pursuant to its powers
under Section 5 of the Fourteenth Amendment, based on its finding that state
DMVs were violating the constitutional right of privacy of stalking victims
by releasing their home addresses and phone numbers through DMV records.
(Defs.' Mem. in Supp. at 25 n. 25 (citing 139 Cong. Rec. S15763 (Statement
of Sen. Boxer)).) Because the court finds that the DPPA is a valid exercise
of Congress's power under the Commerce Clause, it need not reach the question
of whether the Fourteenth Amendment also provided authorization for the
DPPA. See Cheffer v. Reno, 55 F.3d 1517, 1519, 1521 n. 7 (11th Cir. 1995).
9 Both the district court of South Carolina and the district court of Oklahoma
have found that the DPPA, like the provision at issue in Printz, violates
the Tenth Amendment. Condon v. Reno, 972 F.Supp. at 986; Oklahoma v. United
States, No. 97-1423-R 1358 (W.D. Okl. Sept. 17, 1997).
10 The court notes that the DPPA allows States to establish waiver procedures
to handle requests for disclosures that do not fall within one of the Act's
exceptions, 28 U.S.C. § 2721(d), as well as allows States to release
personal information for certain purposes, so long as they establish a way
for individuals to prohibit such disclosure. 28 U.S.C. § 2721(b)(11),
(12). However, these provisions are permissive, rather than mandatory. Thus,
despite the fact that States may establish waiver and "opt out"
provisions in order to disclose information for otherwise impermissible
purposes, they are not required to do so.
11 In so finding, the court respectfully disagrees with both the South Carolina
and Oklahoma district courts' findings that the DPPA requires States to
regulate their citizens' access to and use of personal DMV records. Condon,
972 F.Supp. at 986 (finding that the DPPA violates the Tenth Amendment);
Oklahoma v. United States, No. 97-1423-R (W.D. Okl. Sept. 17, 1997) (same).
12 The court notes well that the Tenth Amendment serves to prohibit Congress
from easily "tak[ing] credit for 'solving' problems without . . . ask[ing]
their constituents to pay for the solutions with higher federal taxes,"
thereby "forcing state governments to absorb the financial burden of
implementing a federal regulatory program." Printz, 117 S. Ct. at 2382.
Had the court found that the DPPA presented such a situation, the court
would not have hesitated to find the Act constitutionally infirm. However,
as discussed infra, the court finds that the DPPA does not pass along to
the States the cost of implementing a federal regulatory program.
13 By authorizing private suits for civil damages against "persons,"
but defining "person" to exclude the State or any State agency,
the DPPA precludes such suits against individuals in their "official
capacity." It is well-settled that a suit for monetary relief against
a state officer in his or her official capacity is deemed a suit against
the state. See e.g. Cross v. State of Alabama, 49 F.3d 1490, 1503 (11th
Cir. 1995) (citing Lassiter v. Alabama A&M University, 3 F.3d 1482,
1485 (11th Cir. 1993)). Further, the statute in no way precludes individuals
from asserting the defense of "qualified immunity." See Gold v.
City of Miami, 121 F.3d 1442 (11th Cir. 1997).
APPENDIX C
The Driver's Privacy Protection Act of 1994, 18 U.S.C. 2721-2725 (1994 &
Supp. III 1997), provides:
§ 2721. Prohibition on release and use of certain personal information
from State motor vehicle records
(a) IN GENERAL.-Except as provided in subsection (b), a State department
of motor vehicles, and any officer, employee, or contractor, thereof, shall
not knowingly disclose or otherwise make available to any person or entity
personal information about any individual obtained by the department in
connection with a motor vehicle record.
(b) PERMISSIBLE USES.-Personal information referred to in subsection (a)
shall be disclosed for use in connection with matters of motor vehicle or
driver safety and theft, motor vehicle emissions, motor vehicle product
alterations, recalls, or advisories, performance monitoring of motor vehicles
and dealers by motor vehicle manufacturers, and removal of non-owner records
from the original owner records of motor vehicle manufacturers to carry
out the purposes of titles I and IV of the Anti Car Theft Act of 1992, the
Automobile Information Disclosure Act (15 U.S.C. 1231 et seq.), the Clean
Air Act (42 U.S.C. 7401 et seq.), and chapters 301, 305, and 321-331 of
title 49, and may be disclosed as follows:
(1) For use by any government agency, including any court or law enforcement
agency, in carrying out its functions, or any private person or entity acting
on behalf of a Federal, State, or local agency in carrying out its functions.
(2) For use in connection with matters of motor vehicle or driver safety
and theft; motor vehicle emissions; motor vehicle product alterations, recalls,
or advisories; performance monitoring of motor vehicles, motor vehicle parts
and dealers; motor vehicle market research activities, including survey
research; and removal of non-owner records from the original owner records
of motor vehicle manufacturers.
(3) For use in the normal course of business by a legitimate business or
its agents, employees, or contractors, but only-
(A) to verify the accuracy of personal information submitted by the individual
to the business or its agents, employees, or contractors; and
(B) if such information as so submitted is not correct or is no longer correct,
to obtain the correct information, but only for the purposes of preventing
fraud by, pursuing legal remedies against, or recovering on a debt or security
interest against, the individual.
(4) For use in connection with any civil, criminal, administrative, or arbitral
proceeding in any Federal, State, or local court or agency or before any
self-regulatory body, including the service of process, investigation in
anticipation of litigation, and the execution or enforcement of judgments
and orders, or pursuant to an order of a Federal, State, or local court.
(5) For use in research activities, and for use in producing statistical
reports, so long as the personal information is not published, redisclosed,
or used to contact individuals.
(6) For use by any insurer or insurance support organization, or by a self-insured
entity, or its agents, employees, or contractors, in connection with claims
investigation activities, antifraud activities, rating or underwriting.
(7) For use in providing notice to the owners of towed or impounded vehicles.
(8) For use by any licensed private investigative agency or licensed security
service for any purpose permitted under this subsection.
(9) For use by an employer or its agent or insurer to obtain or verify information
relating to a holder of a commercial driver's license that is required under
chapter 313 of title 49.
(10) For use in connection with the operation of private toll transportation
facilities.
(11) For any other use in response to requests for individual motor vehicle
records if the motor vehicle department has provided in a clear and conspicuous
manner on forms for issuance or renewal of operator's permits, titles, registrations,
or identification cards, notice that personal information collected by the
department may be disclosed to any business or person, and has provided
in a clear and conspicuous manner on such forms an opportunity to prohibit
such disclosures.
(12) For bulk distribution for surveys, marketing or solicitations if the
motor vehicle department has implemented methods and procedures to ensure
that-
(A) individuals are provided an opportunity, in a clear and conspicuous
manner, to prohibit such uses; and
(B) the information will be used, rented, or sold solely for bulk distribution
for surveys, marketing, and solicitations, and that surveys, marketing,
and solicitations will not be directed at those individuals who have requested
in a timely fashion that they not be directed at them.
(13) For use by any requester, if the requester demonstrates it has obtained
the written consent of the individual to whom the information pertains.
(14) For any other use specifically authorized under the law of the State
that holds the record, if such use is related to the operation of a motor
vehicle or public safety.
(c) RESALE OR REDISCLOSURE.-An authorized recipient of personal information
(except a recipient under subsection (b)(11) or (12)) may resell or redisclose
the information only for a use permitted under subsection (b) (but not for
uses under subsection (b) (11) or (12)). An authorized recipient under subsection
(b)(11) may resell or redisclose personal information for any purpose. An
authorized recipient under subsection (b)(12) may resell or redisclose personal
information pursuant to subsection (b)(12). Any authorized recipient (except
a recipient under subsection (b) (11)) that resells or rediscloses personal
information covered by this chapter must keep for a period of 5 years records
identifying each person or entity that receives information and the permitted
purpose for which the information will be used and must make such records
available to the motor vehicle department upon request.
(d) WAIVER PROCEDURES.-A State motor vehicle department may establish and
carry out procedures under which the department or its agents, upon receiving
a request for personal information that does not fall within one of the
exceptions in subsection (b), may mail a copy of the request to the individual
about whom the information was requested, informing such individual of the
request, together with a statement to the effect that the information will
not be released unless the individual waives such individual's right to
privacy under this section.
§ 2722. Additional unlawful acts
(a) PROCUREMENT FOR UNLAWFUL PURPOSE.-It shall be unlawful for any person
knowingly to obtain or disclose personal information, from a motor vehicle
record, for any use not permitted under section 2721(b) of this title.
(b) FALSE REPRESENTATION.-It shall be unlawful for any person to make false
representation to obtain any personal information from an individual's motor
vehicle record.
§ 2723. Penalties
(a) CRIMINAL FINE.-A person who knowingly violates this chapter shall be
fined under this title.
(b) VIOLATIONS BY STATE DEPARTMENT OF MOTOR VEHICLES.-Any State department
of motor vehicles that has a policy or practice of substantial noncompliance
with this chapter shall be subject to a civil penalty imposed by the Attorney
General of not more than $5,000 a day for each day of substantial noncompliance.
§ 2724. Civil action
(a) CAUSE OF ACTION.-A person who knowingly obtains, discloses or uses personal
information, from a motor vehicle record, for a purpose not permitted under
this chapter shall be liable to the individual to whom the information pertains,
who may bring a civil action in a United States district court.
(b) REMEDIES.-The court may award-
(1) actual damages, but not less than liquidated damages in the amount of
$2,500;
(2) punitive damages upon proof of willful or reckless disregard of the
law;
(3) reasonable attorneys' fees and other litigation costs reasonably incurred;
and
(4) such other preliminary and equitable relief as the court determines
to be appropriate.
§ 2725. Definitions
In this chapter-
(1) "motor vehicle record" means any record that pertains to a
motor vehicle operator's permit, motor vehicle title, motor vehicle registration,
or identification card issued by a department of motor vehicles;
(2) "person" means an individual, organization or entity, but
does not include a State or agency thereof; and
(3) "personal information" means information that identifies an
individual, including an individual's photograph, social security number,
driver identification number, name, address (but not the 5-digit zip code),
telephone number, and medical or disability information, but does not include
information on vehicular accidents, driving violations, and driver's status.