GARWOOD, Circuit Judge:
Today, we decide whether the Driver's Privacy Protection Act (DPPA), 18 U.S.C., Chapter 123, §§ 2721-2725, allows states to turn over their entire drivers motor vehicle (DMV) database at the request of certain private entities. This case involves a class action seeking vast potential liquidated damages. For reasons stated below, we affirm the district court's dismissal of the action and hold that the DPPA affords states discretion to disburse DMV records for a permissible purpose under the statute.
This case began when the plaintiff-appellants, Sharon Taylor, et. al., filed six putative class action suits alleging violations of the DPPA against more than seventy-five defendants. The district court consolidated the six suits into the instant case. Most defendants joined in filing a Consolidated Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)(6) (failure to state a claim), and 12(b)(1) (lack of subject-matter jurisdiction). The district court granted the motion and entered judgment dismissing plaintiff's suit with prejudice (including the sua sponte dismissal of the action as against defendants who had not joined the motion). The plaintiffs now appeal.
STANDARD OF REVIEW
This court reviews de novo the grant of a motion to dismiss for failure to state a claim. Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir.2004). Plaintiffs must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). We take the facts the plaintiff pleads as true. Id. at 1965. See also Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). The court evaluates a 12(b)(1) motion de novo as well. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
BACKGROUND
Plaintiffs bring this class action against various defendants alleging misuse of DMV records in violations of the DPPA. 18 U.S.C. § 2721-2725. The plaintiffs represent a putative class of individuals with drivers licenses issued in the State of Texas.
Plaintiffs argue that obtaining personal information in this manner violates the DPPA. Section 2722(a) provides:
The DPPA also provides a civil action against a "person who knowingly obtains, discloses or uses personal information from a motor vehicle record for a purpose not permitted under this chapter." 18 U.S.C. § 2724(a).
Section 2721 goes on to provide:
Plaintiffs complain that the defendants in the instant case, pursuant to the Texas statute, buy DMV records in bulk from the Texas DPS. These defendants do not use all of the records immediately. They maintain databases or resell the information. They potentially could use any record in the normal course of their business for a permissible purpose under the DPPA. Plaintiffs do not complain that the defendants actually used any of the records for a purpose other than the ones listed in the DPPA. Instead, the plaintiffs complain that maintaining records not actually used for the defendants' stated purpose is itself an impermissible purpose under the statute. Stated another way, plaintiffs assert that buying the records in bulk with an expectation and purpose of valid potential use is not a permissible use under the DPPA.
The plaintiffs characterize their suit as being against two types of defendants: resellers and non-resellers of the drivers license records. Plaintiffs argue that the DPPA requires resellers to have themselves made some permissible use of the information before they may resell the information. Here, the resellers took the personal information and sold it to third parties without using the information themselves. The plaintiffs do not allege that the third parties used the personal information for a purpose not permitted under the DPPA. And, the plaintiffs argue that the non-resellers violated the act by obtaining the personal information for
ANALYSIS
I. Failure to State a Claim
The DPPA creates liability when three elements are met: (1) the defendant knowingly obtains, discloses or uses personal information; (2) from a motor vehicle record; and (3) for a purpose not permitted. 18 U.S.C. § 2724(a); Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, and Stevens, P.A., 525 F.3d 1107, 1111 (11th Cir.2008). "The plain meaning of the third factor is that it is only satisfied if shown that obtainment, disclosure, or use was not for a purpose enumerated under § 2721(b)." Id. (emphasis added). See also Reno v. Condon, 528 U.S. 141, 120 S.Ct. 666, 670, 145 L.Ed.2d 587 (2000) (The section 2724 cause of action is for knowingly obtaining, disclosing, or using the information "for a use other than those specifically permitted by the DPPA").
A. Non-Resellers
We first address whether the non-resellers obtained personal information for a purpose not permitted under the DPPA. The non-resellers buy DMV records in bulk. Soon thereafter, they may use some of the records for a purpose permitted under the DPPA. The plaintiffs argue that as to the remaining records the non-resellers do not use them for a permissible purpose. In other words, the question is whether the statute allows bulk distribution of the records.
We hold that this type of bulk obtainment does not violate the DPPA. In interpreting statutes, this Court begins with the text of the statute. Phillips v. Marine Concrete Structures, 895 F.2d 1033, 1035 (5th Cir.1990). Of the fourteen expressly listed permissible uses, only once does Congress limit a permissible use to individual motor records. 18 U.S.C. § 2721(b)(11) ("For any other use in response to requests for individual motor vehicle records if the State has obtained the express consent of the person to whom such personal information pertains."). And of these fourteen permissible uses, only once does Congress limit a permissible use to bulk distribution. 18 U.S.C. § 2721(b)(12) ("For bulk distribution for surveys, marketing or solicitations if the State has obtained the express consent of the person to whom such personal information pertains."). For the remaining twelve permissible uses, the statute seems to have more than one reasonable interpretation: individual release, bulk release, or both.
It does not make sense that Congress would expressly limit states to individual distribution with one permissible use if Congress intended to limit all of the permissible uses to individual distribution. If Congress intended only individual distribution, one would expect either Congress to expressly limit all uses or, at least, to remain silent on the matter. Likewise, if Congress intended only bulk distribution, it makes no sense to expressly limit one of the fourteen uses to bulk distribution and not the others. The text of the statute strongly indicates that it allows both individual and bulk distribution. Bulk distribution is limited in only the instance of use for surveys, marketing or solicitations (plaintiffs do not allege such use here). The plain inference is that Congress allowed bulk distribution for other uses permitted by section 2721(b). Arif v. Mukasey, 509 F.3d 677, 681 (5th Cir.2007) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").
The purpose of the statute supports the conclusion that Congress intended bulk distribution. Representatives originally proposed the DPPA as a crime fighting measure. 139 CONG. REC. S15745-01, S15762 (1993) (Statement of Rep. Boxer). Congress originally passed it (as an amendment to the Crime Control and Law Enforcement Act of 1994) in response to the murder of actress Rebecca Schaeffer at the hands of a stalker. 140 CONG. REC. H2518-01, H2526 (1994) (Statement of Rep. Goss). This stalker used DMV records to find Schaeffer's unlisted home address. Id. The legislative history reflects the concern for victims of crimes committed using DMV records.
Statements on the DPPA along the same lines were made by Congressman Moran and Congressman Gross on April 20, 1994 before the House. 140 Cong. Rec. H 2518-01, 1994 WL 140035 at 14, 15, 24.
Plaintiffs' reading of the DPPA leads to essentially absurd results. At a checkout line at a grocery store or similar establishment, when a customer wishes to pay by (or cash) a check, and presents a driver's license as identification, it is obviously wholly impractical to require the merchant for each such customer to submit a separate individual request to the state motor vehicle department to verify the accuracy of the personal information submitted by the customer, under section 2721(b)(3). Any such process would obviously take way too long to be of any use to either the customer or the merchant, and would moreover flood the state department with more requests than it could possibly handle. So, the merchant buys the state department's entire data base and from it extracts on that occasion that particular customer's information, and later performs the same task as to the next such customer in the line. Plaintiffs would have us hold that the merchant violates the DPPA by acquiring the data base even though every single actual use made of it is an authorized use under section 2721(b), so long as there is at least one name in the data base as to which no actual use is made. We reject that contention.
As the State of Texas points out in its amicus brief, under the plaintiffs approach, an attorney who buys a set legal reporters does not do so for the purpose of use for legal research unless that attorney plans on reading every opinion in every volume of those reporters. A lawyer will never read all the opinions in all 1,000 volumes of Federal Second (and may likely never read anything in at least a few of the volumes). But he or she still buys the reporter set for the purpose of legal research. We hold that the text and legislative history dictate that when a person obtains motor vehicle records in bulk for one of the permissible uses listed in 18 U.S.C. § 2721(b), and does not actually use, or intend to use, any of the information in a manner prohibited by section 2721(b), then that person does not obtain the records for a purpose not permitted under Chapter 123 of Title 18.
We now address the plaintiffs' claims against the resellers. The plaintiffs alleged that reseller defendants must first have themselves made a permissible use for the DMV records before they could resell to others under 18 U.S.C. § 2721(c). In their briefs and at oral argument, the plaintiffs could not articulate, and we could not find, any reason why Congress would require resellers to actually use the records before selling the records.
The plaintiffs counter that authorized recipients must have an authorized use because the statute expressly refers to certain authorized recipients as being recipients "under" a permissible use. For example:
18 U.S.C. § 2721(c). Like the district court, we hold that the only reasonable construction of "authorized recipient" requires no actual use. Instead, an authorized recipient is authorized to resell to individuals for one or more of the specific purposes under section 2721(b). See Russell v. ChoicePoint Servs., Inc., 300 F.Supp.2d 450, 455-57 (E.D.La.2004) (The court goes into great detail in its careful analysis of "authorized recipient.").
Our construction of the statute alleviates the concerns the plaintiffs believe exist.
The Department of Justice issued an advisory opinion that supports this conclusion. On October 9, 1998, the Special Counsel to the Assistant Attorney General, in the Civil Division, issued an advisory letter opinion responding to the question of whether Massachusetts may release personal information to a commercial distributor who disseminates the information only to other authorized recipients or entities that use the information solely for authorized purposes. Unpublished Letter from Robert C. McFetridge, Special Counsel to the Assistant Attorney General, to Peter Sacks, Office of the Attorney General for the Commonwealth of Massachusetts (on file with this Court and as a part of the record below). This advisory opinion concluded that the DPPA allowed for such releases. Id. Because the Attorney General is expressly charged with imposing civil sanctions against States having a policy or practice of substantial noncompliance with the DPPA, this advisory opinion serves as persuasive support for the conclusion that a reseller may obtain DMV records and sell them without first itself actually using or intending to use those records. See 18 U.S.C. § 2723(b), note 4 supra. Moreover, since that Department of Justice opinion the statute has been amended (in October 1999) without any change which would alter that result.
II. Standing
We need not address the statutory standing issue because we have affirmed the district court's dismissal under Rule 12(b)(6). Verizon Commc'n Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 124 S.Ct. 872, 883 n. 5, 157 L.Ed.2d 823 (2004) (citing Steel Co. v. Citizens for a
CONCLUSION
We affirm the judgment of the district court. We hold that a person who buys DMV records in bulk does so for the purpose of making permissible actual use of information therein under 18 U.S.C. § 2721(b), even if that person does not actually use every single item of information therein. We also hold that the plain language of 18 U.S.C. § 2721 allows resale of DMV records to one who is authorized and proposes to make actual use thereof as permitted under section 2721(b) notwithstanding that the seller does not actually use or intend to use the records before resale.
AFFIRMED.
DENNIS, Circuit Judge, concurring:
I fully agree with the majority's analysis of the Driver's Privacy Protection Act and its conclusion that the plaintiffs have failed to state a claim upon which relief can be granted. However, I believe that Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), requires us to decide whether the plaintiffs have Article III standing. "In [Steel Co.], [the Supreme] Court adhered to the rule that a federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). See also, e.g., United States v. Tex. Tech Univ., 171 F.3d 279, 287 (5th Cir.1999); 13 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Richard D. Freer, Federal Practice and Procedure: Jurisdiction and Related Matters § 3522, at 142 (3d ed.2008).
The plaintiffs in this case have Article III standing for the reason stated in footnote 15 of the majority opinion: they allege that the defendants have used their personal information in a manner that is prohibited by the DPPA. Thus, their allegations fulfill the three requirements of the "irreducible constitutional minimum of standing": an injury in fact (i.e., the invasion of an interest which the plaintiffs argue is legally protected), which was caused by the defendants and which would be redressed by a judgment against the defendants. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "It is firmly established ... that the absence of a valid
FootNotes
Section 730.002 of the TEX. TRANSP. CODE provides that:
Under § 730.007 the requesting party is to provide assurances to the Department of Public Safety (DPS) that the information furnished will be used only for purposes that are lawful under the DPPA. Permitted disclosures under § 730.007 extend only to name, address, date of birth and driver's license number. § 730.007(b). The requestor must represent that use of personal information "will be strictly limited" to listed uses permitted under the DPPA (excluding marketing, solicitations and surveys or uses based on individual consent), including
DPS regulations (37 TEX. ADMIN. CODE § 15.142) require a detailed form of agreement by the requestor, specifying, inter alia, each authorized purpose for which the records are requested and the like.
Plaintiffs allege that defendants acquired the challenged information in bulk from the Texas DPS. There is no allegation that such acquisition was other than in compliance with Texas law.
Section 2723 provides:
We also note in passing that as § 2723(a) makes knowing violation of the DPPA a crime, and accordingly to the extent that violation of the DPPA is at issue in even a civil case, to the extent of ultimate ambiguity in the statute's meaning it must be construed under the rule of lenity. See United States v. Thompson/Center Arms Co., 504 U.S. 505, 112 S.Ct. 2102, 2110, 119 L.Ed.2d 308 (1992) (plurality opinion); Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 1001-1002, 108 L.Ed.2d 132 (1990).
Similar requirements are stated in the recipient's agreement with the DPS. See 37 TEX. ADMIN. CODE § 15.143.
Congress sets forth rules of construction that explain, unless context indicates otherwise, "words importing the singular include and apply to several persons, parties, or things." 1 U.S.C. § 1. It seems well established, however, that this particular cannon is rarely applied and only when doing so necessarily carries out the evident intent of Congress. United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079, 1085 n. 5, 172 L.Ed.2d 816 (2009) (refusing to apply the rule because it conflicts with congressional intent).
Congressman Moran's February 4, 1994 statement also explains the reason for restrictions on direct marketing use, viz:
Assuming, arguendo, that we also need to address Article III standing, that is present. It is undisputed that the DPPA protects from certain uses or disclosures personal information of plaintiffs and creates a federal cause of action for same, and that such personal information of plaintiffs was actually included in the challenged bulk distributions by Texas DPS. Moreover, plaintiffs' claim that such bulk distributions (including the personal information of these plaintiffs) are prohibited, and constitute a disclosure or use made illegal, by the DPPA which affords plaintiffs a federal cause of action for such disclosure or use of their personal information, though clearly without merit, is nevertheless not wholly insubstantial and frivolous, and hence gives the district court jurisdiction to decide whether or not the DPPA does preclude such distributions or uses. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 776-77, 90 L.Ed. 939 (1946).
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