Stephanie Daniel v. National Park Service

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEPHANIE DANIEL, on behalf of No. 16-35689
herself and all others similarly
situated, D.C. No.
Plaintiff-Appellant, 1:16-cv-00018-
SPW
v.

NATIONAL PARK SERVICE; DOES, 1– OPINION
10,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding

Argued and Submitted December 5, 2017
Seattle, Washington

Filed May 30, 2018

Before: Michael Daly Hawkins, M. Margaret McKeown,
and Morgan Christen, Circuit Judges.

Opinion by Judge McKeown
2 DANIEL V. NAT’L PARK SERVICE

SUMMARY*

Fair Credit Reporting Act

The panel affirmed the district court’s dismissal of a suit
brought pursuant to the Fair Credit Reporting Act, 15 U.S.C.
§ 1681c(g), against the National Park Service alleging that
the Service violated the Act by failing to redact plaintiff’s
debit card expiration date from her purchase receipt.

Plaintiff alleged that when she purchased an entrance
pass to Yellowstone National Park, the Park Service printed
a receipt bearing her full debit card expiration date.
According to plaintiff, the Park Service violated the Act’s
prohibition that “no person that accepts credit cards or debit
cards for the transaction of business shall print more than the
last 5 digits of the card number or the expiration date upon
any receipt provided to the cardholder at the point of the sale
or transaction.” 15 U.S.C. § 1681c(g) (emphases added).
Plaintiff alleged that after the Yellowstone transaction, her
debit card was used fraudulently and she suffered damages
from her stolen identity. She also alleged that the fraudule nt
use of her debit card was caused in part by the inclusion of
the card’s expiration date on her Yellowstone receipt.

The panel held as an initial matter, that plaintiff lacked
standing because her complaint made only conclusory
allegations that her stolen identity was traceable to the Park
Service’s alleged violation of the Act. The panel further held
that giving plaintiff leave to amend the complaint would be

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.
 DANIEL V. NAT’L PARK SERVICE 3

futile because the Act does not waive the federal
government’s sovereign immunity from plaintiff’s suit.

COUNSEL

Timothy M. Bechtold (argued), Bechtold Law Firm PLLC,
Missoula, Montana, for Plaintiff-Appellant.

Mark B. Stern (argued) and Henry C. Whitaker, Appellate
Staff; Michael W. Cotter, United States Attorney; Chad A.
Readler, Acting Assistant Attorney General; Civil Divis io n,
United States Department of Justice, Washington, D.C.; for
Defendant-Appellee.

OPINION

McKEOWN, Circuit Judge:

This appeal is one of many in which plaintiffs seek
redress for violation of a federal law that requires redaction
of certain credit and debit card information on printed
receipts. Stephanie Daniel alleges that identity thieves made
fraudulent charges on her debit card at some unspecified
time after she visited Yellowstone National Park. Daniel
sued the National Park Service for issuing a receipt showing
her debit card’s expiration date, a violation of the Fair Credit
Reporting Act (“FCRA”). 15 U.S.C. § 1681c(g).

We affirm the district court’s dismissal of Daniel’s suit.
As an initial matter, Daniel lacks standing because her
complaint makes only conclusory allegations that her stolen
identity was traceable to the Park Service’s alleged FCRA
violation. Nonetheless, giving Daniel leave to amend the
4 DANIEL V. NAT’L PARK SERVICE

complaint would be futile because the FCRA does not waive
the federal government’s sovereign immunity from Daniel’s
suit.

Background

When Daniel purchased an entrance pass to Yellowsto ne
National Park, the National Park Service (the “Park
Service”) printed a receipt bearing her full debit card
expiration date. According to Daniel, the Park Service
violated the FCRA’s prohibition that “no person that accepts
credit cards or debit cards for the transaction of business
shall print more than the last 5 digits of the card number or
the expiration date upon any receipt provided to the
cardholder at the point of the sale or transaction.” 15 U.S.C.
§ 1681c(g) (emphases added). The receipt otherwise
complied with the FCRA’s card-number redaction
requirements—it did not print more than the last five digits
of the debit card number.

Daniel sued the Park Service, on behalf of herself and a
putative class, under one of the FCRA’s enforceme nt
provisions: “Any person who willfully fails to comply with
[the FCRA] with respect to any consumer is liable to that
consumer” for statutory damages of between $100 and
$1,000 per violation or “any actual damages sustained by the
consumer,” costs and attorneys’ fees, and potential punitive
damages. Id. § 1681n. Daniel claimed that after the
Yellowstone transaction, her debit card was used
fraudulently and she suffered damages from her stolen
identity. She also alleged that the fraudulent use of her debit
card was caused in part by the inclusion of the card’s
expiration date on her Yellowstone receipt.

The district court granted the Park Service’s motion to
dismiss on the grounds that the FCRA does not waive the
 DANIEL V. NAT’L PARK SERVICE 5

U.S. government’s sovereign immunity. The court
concluded that “including the United States as a ‘person’
every time the term is used in the FCRA would lead to
inconsistent usage and potentially absurd results.”
Accordingly, Congress did not “speak unequivocally” as is
required to waive sovereign immunity. 1

Analysis

Both Article III standing and sovereign immunity are
threshold jurisdictional issues that we review de novo. See
Raines v. Byrd, 521 U.S. 811, 818 (1997); FDIC v. Meyer,
510 U.S. 471, 475 (1994). In this instance, we analyze both
issues because dismissal of the case on standing grounds
leaves open whether Daniel could amend her complaint to
satisfy standing requirements. That route is foreclosed,
however, because a suit dismissed on sovereign immunity
grounds cannot be salvaged. See United States v. Mitchell,
463 U.S. 206, 212 (1983) (“It is axiomatic that the United
States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction. ”).
Daniel’s complaint fails on both fronts.

I. STANDING

To meet the constitutional threshold of Article III
standing, Daniel must allege that she “(1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct
of [the Park Service], and (3) that is likely to be redressed by
a favorable judicial decision.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). Although Daniel alleged a

1 The district court did not address the second issue raised in the

Park Service’s motion—whether Daniel pled sufficient facts to maintain
an action under the FCRA.
6 DANIEL V. NAT’L PARK SERVICE

sufficient injury of identity theft, she failed to allege that her
injury was “fairly traceable” to the Park Service’s issuance
of the receipt. Without this link, Daniel’s suit must be
dismissed.

A. DANIEL ALLEGED A CONCRETE INJURY OF
IDENTITY THEFT

We recently considered whether “receiving an overly
revealing credit card receipt—unseen by others and unused
by identity thieves—[is] a sufficient injury to confer Article
III standing.” See Bassett v. ABM Parking Servs., Inc.,
883 F.3d 776, 777 (9th Cir. 2018). Bassett’s theory of
injury—an “exposure” to identity theft “caused by [the
issuer’s] printing of his credit card expiration date on a
receipt that he alone viewed”—did not “have ‘a close
relationship to a harm that has traditionally been regarded as
providing a basis for a lawsuit in English or American
courts.’” Id. (quoting Spokeo, 136 S. Ct. at 1549). Nor did
Congress “elevat[e] to the status of legally cognizab le
injuries concrete, de facto injuries that were previously
inadequate in law.” Id. at 781–82 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 578 (1992)). It was no
stretch to conclude that a receipt showing the credit card
expiration date, by itself, was not a concrete injury. Id. at
780.

In contrast to Bassett, Daniel alleged a concrete,
particularized injury by claiming that after the Yellowsto ne
transaction, her debit card was used fraudulently and she
suffered damages from her stolen identity. Identity theft and
fraudulent charges are concrete harms particularized to
Daniel and establish a sufficient injury at the pleading stage.
See generally Spokeo, 136 S. Ct. at 1548–50; In re
Zappos.com, Inc., 888 F.3d 1020, 1028 (9th Cir. 2018)
(holding that specific allegations of hackers accessing a
 DANIEL V. NAT’L PARK SERVICE 7

plaintiff’s personal information that “could be used to help
commit identity fraud or identity theft” are a suffic ie nt
injury).

B. DANIEL’S IDENTITY THEFT IS NOT FAIRLY
TRACEABLE TO THE PARK SERVICE’S RECEIPT

The trickier question is whether the fraudulent charges
on Daniel’s debit card and her stolen identity are “fair ly
traceable” to the Park Service’s printing of a receipt showing
the expiration date of that debit card. At the pleading stage,
Daniel does not need to prove proximate causation. See
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377, 1391 n.6 (2014). But she still bears the
burden of “demonstrating that her injury-in- fact is . . . fairly
traceable to the challenged action”—here, the Park Service’s
issuance of the receipt. Davidson v. Kimberly-Clark Corp.,
— F.3d —, 2018 WL 2169784, at *7 (9th Cir. May 9, 2018)
(citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
149 (2010)). Daniel’s threadbare allegations fall short of
demonstrating that link.

Daniel’s complaint contains only two generic statements
that attempt to draw a connection between the receipt and
her later identity theft. She alleged: “After this debit card
transaction, Plaintiff Daniel’s personal debit card was used
fraudulently and she suffered damages from the stolen
identity.” She went on to claim: “Based on information and
belief, the fraudulent use of Plaintiff Daniel’s debit card was
caused in part by the inclusion of the expiration date of her
debit card on the receipt of her purchase from Defendant
National Park Service.”

The latter statement is a legal conclusion, and is therefore
not entitled to an assumption of truth at the pleading stage.
See Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009). The
8 DANIEL V. NAT’L PARK SERVICE

former statement presents no specific factual allegatio ns
plausibly tying the Park Service receipt to her identity theft.
These naked assertions fail our edict that a plaintiff may not
“rely on a bare legal conclusion to assert injury- in- fact, or
engage in an ingenious academic exercise in the conceivable
to explain how defendants’ actions caused his injury.” Maya
v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)
(internal quotation marks and footnotes omitted).

Like Bassett, Daniel “did not allege that another copy of
the receipt existed, that h[er] receipt was lost or stolen, . . .
or even that another person apart from h[er] lawyers viewed
the receipt.” Bassett, 883 F.3d at 783. 2 Merely asserting that
a theft occurred at an unspecified time “after” the debit card
transaction—absent any other details—does not connect the
dots. Even crediting that temporal allegation as true, as we
must at this stage, Daniel alleged no link between the receipt
and the identity theft. See Syed v. M-I, LLC, 853 F.3d 492,
499 n.4 (9th Cir. 2017); Maya, 658 F.3d at 1068–73.

We are left with an allegation of a “bare procedural
violation” of the FCRA and a generic allegation of later harm
that is “divorced from” that violation. See Spokeo, 136 S. Ct.
at 1549; Bassett, 883 F.3d at 781, 783. Because the “fair ly
traceable” leg of standing is no less essential to the
“irreducible constitutional minimum” of standing than the
injury leg, Daniel failed to adequately allege standing.
Spokeo, 136 S. Ct. at 1547 (quoting Lujan, 504 U.S. at 560).

2 Daniel alleged that the Park Service printed a merchant copy of the
receipt. But since the merchant copy did not contain the card’s
expiration date, such a receipt does not make Daniel’s stolen identity any
more “traceable” to the Park Service’s violation of the FCRA.
 DANIEL V. NAT’L PARK SERVICE 9

Our conclusion does not alter the longstanding princip le
that “the causation and redressability requirements are
relaxed” in standing analysis where a plaintiff’s claims “rest
on a procedural injury.” Ctr. for Biological Diversity v.
Mattis, 868 F.3d 803, 817 (9th Cir. 2017) (quoting
California ex rel. Imperial Cty. Air Pollution Control Dist.
v. U.S. Dep’t of the Interior, 767 F.3d 781, 790 (9th Cir.
2014)). Our usual rule rests on the assumption that by
“providing a cause of action” for violations of a statute,
“Congress has recognized the harm such violations cause,
thereby articulating a ‘chain[] of causation that will give rise
to a case or controversy.’” Syed, 853 F.3d at 499 (quoting
Spokeo, 136 S. Ct. at 1549). Such an assumption is
unwarranted under these unique circumstances.

The FCRA presents the exceedingly rare case where
Congress created a cause of action for violations of a statute,
but also concluded that a chain of causation does not cause
harm. The FCRA prohibits any “person” from printing a
receipt with a card’s expiration date, and holds liable “[a]ny
person who willfully fails to comply with” that requireme nt.
15 U.S.C. §§ 1681c(g), 1681n. On the surface, the law is
“an effort to combat identity theft.” Bateman v. Am. Multi-
Cinema, Inc., 623 F.3d 708, 717 (9th Cir. 2010).

Yet after passing the expiration-date requireme nt,
Congress enacted the Credit and Debit Card Receipt
Clarification Act, Pub. L. No. 110-241, 122 Stat. 1565
(2008) (the “Clarification Act”). That statute includes
express congressional findings that “[e]xperts in the field
agree that proper truncation of the card number, by itself as
required by the [FCRA], regardless of the inclusion of the
expiration date, prevents a potential fraudster from
perpetrating identity theft or credit card fraud.” 122 Stat. at
1565 (emphasis added). Accordingly, the Clarification Act
10 DANIEL V. NAT’L PARK SERVICE

set a temporary safe harbor for merchants: “any person who
printed an expiration date on any receipt . . . between
December 4, 2004, and [June 3, 2008],” but otherwise
complied with the card number truncation requirements, did
not willfully violate the FCRA. Id. at 1566. The
Clarification Act left the FCRA untouched for receipts
printed after June 3, 2008, like Daniel’s. Id.

The congressional ambivalence expressed in the
statutory prohibition and the Clarification Act produces a
peculiar outcome. On the one hand, we have a cause of
action to remedy statutory violations that was intended to
“combat identity theft,” and we have vague allegations of
“identity theft.” On the other hand, we have an express
congressional finding that receipts like Daniel’s “prevent”
identity theft and credit card fraud, they do not cause injury.
“On balance, congressional judgment weighs against”
standing in this case, just as in Bassett. 883 F.3d at 782.

The result here does not foreclose future plaintiffs from
adequately alleging standing for FCRA violations, even
those involving expiration dates on receipts. But such
plaintiffs shoulder the burden of meeting each of the
elements for standing, including the “fairly traceable”
requirements.

In the ordinary appeal, we might consider whether
amendment of the complaint could cure the defects in the
standing allegations. E.g., Maya, 658 F.3d at 1072.
However, we do not reach that question because Daniel’s
suit is also barred by sovereign immunity. Any amendment
would be futile. See Mitchell, 463 U.S. at 212.
 DANIEL V. NAT’L PARK SERVICE 11

II. SOVEREIGN IMMUNITY

Sovereign immunity shields the United States from suit
“absent a consent to be sued that is ‘unequivoca lly
expressed’” in the text of a relevant statute. United States v.
Bormes, 568 U.S. 6, 9–10 (2012) (quoting United States v.
Nordic Village, Inc., 503 U.S. 30, 33–34 (1992)). To
maintain a suit against the government for money damages,
“the waiver of sovereign immunity must extend
unambiguously to such monetary claims,” thus foreclosing
an implied waiver. Lane v. Pena, 518 U.S. 187, 192 (1996).

The clear textual waiver rule “ensures that Congress has
specifically considered . . . sovereign immunity and has
intentionally legislated on the matter.” Sossamon v. Texas,
563 U.S. 277, 290 (2011). 3 It also “ensure[s] Congress does
not, by broad or general language, legislate on a sensitive
topic inadvertently or without due deliberation.” Id. at 291.
Key here, “[a]ny ambiguities in the statutory language are to
be construed in favor of immunity.” FAA v. Cooper,
566 U.S. 284, 290 (2012) (emphasis added).

A. THE FCRA DOES NOT CLEARLY WAIVE
IMMUNITY FOR DANIEL’S SUIT

We begin with the principle that our duty is “to construe
statutes, not isolated provisions.” King v. Burwell, 135 S. Ct.
2480, 2489 (2015). We thus “look to the provisions of the
whole law” to determine whether the FCRA’s “any person”
language unambiguously applies to the federal governme nt.

3 Although Sossamon concerns state sovereign immunity, the Court

acknowledged that it was applying federal sovereign immunit y
principles. 563 U.S. at 285 n.4.
12 DANIEL V. NAT’L PARK SERVICE

Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct.
1002, 1010 (2017).

The FCRA broadly defines a “person” as “any
individual, partnership, corporation, trust, estate,
cooperative, association, government or governmental
subdivision or agency, or other entity.” 15 U.S.C.
§ 1681a(b) (emphasis added). The National Park Service is
an agency of the United States. Hence, the sovereign
immunity question boils down to whether the inclusion of
“governmental . . . agency” in the FCRA’s definition of
“person” constitutes an unequivocal waiver of the federal
government’s immunity from money damages and subjects
the United States to the various provisions directed at “any
person” who violates the law. Construing the FCRA as a
whole—including the different contexts in which “person”
is used, and the inclusion of a clear waiver of sovereign
immunity in an unrelated provision—we view the statute as
ambiguous with respect to whether Congress waived
immunity for Daniel’s suit.

1. The Many Appearances of “Person” in the
FCRA

The word “person” appears throughout the FCRA, as
amended by the Fair and Accurate Credit Transactions Act
(“FACTA”). 4 The statutory proscription at issue establis hes
that “no person that accepts credit cards or debit cards for
the transaction of business shall print . . . the expiration date
upon any receipt provided to the cardholder at the point of

4 We use “FCRA” where “FCRA” or “FACTA” could be used

interchangeably.
 DANIEL V. NAT’L PARK SERVICE 13

the sale or transaction.” 15 U.S.C. § 1681c(g) (emphasis
added).

The FCRA also contains a number of enforceme nt
provisions directed at “any person” who violates the law.
Daniel invoked a citizen suit provision that “[a]ny person
who willfully fails to comply with [the FCRA] with respect
to any consumer is liable to that consumer” for statutory
damages of between $100 and $1,000 per violation or “any
actual damages sustained by the consumer,” costs and
attorneys’ fees, and potential punitive damages. Id. § 1681n.
Similarly, “[a]ny person who is negligent in failing to
comply with [the FCRA] with respect to any consumer is
liable to that consumer” for “any actual damages,” costs and
attorneys’ fees. Id. § 1681o. “Any person who knowingly
and willfully obtains information on a consumer from a
consumer reporting agency under false pretenses shall be
fined . . . , imprisoned for not more than 2 years, or both.”
Id. § 1681q. And, “any person” who violates the FCRA is
subject to enforcement actions by the Federal Trade
Commission, the Consumer Financial Protection Bureau,
and state governments. Id. § 1681s (all emphases added).

2. Reading “the United States” Into Every
Iteration of “Person” Leads to Implausible
Results

Distilling a clear waiver of sovereign immunity in the
FCRA would require us to treat “the United States” as a
“person” in each provision. Substituting the sovereign for
each of the FCRA’s iterations of “person” leads to
implausible results, however, and underscores that Congress
did not intend for the law’s enforcement provisions to apply
against the federal government. Notwithstanding the
FCRA’s broad statutory definition, we note that in other
contexts, courts have been “reluctant to read ‘person’ to
14 DANIEL V. NAT’L PARK SERVICE

mean the sovereign where, as here, such a reading is
decidedly awkward.” Int’l Primate Prot. League v. Adm’rs
of Tulane Educ. Fund, 500 U.S. 72, 83 (1991).

Most importantly, treating the United States as a
“person” across the FCRA’s enforcement provisions would
subject the United States to criminal penalties. Because
“[a]ny person who knowingly and willfully obtains
information on a consumer from a consumer reporting
agency under false pretenses shall be fined . . . , impriso ned
for not more than 2 years, or both,” such an interpretatio n
would subject the sovereign to incarceration. 15 U.S.C.
§ 1681q. As the Supreme Court observed in construing the
use of “person” in the Sherman Antitrust Act:

The connotation of a term in one portion of
an Act may often be clarified by reference to
its use in others. The word “person” is used
in several sections other than [this one]. In
[the other sections], the phrase designating
those liable criminally is “every person who
shall” etc. In each instance it is obvious that
. . . the term “person” . . . cannot embrace the
United States.

United States v. Cooper Corp., 312 U.S. 600, 606–07
(1941); see also U.S. Postal Serv. v. Flamingo Indus. (USA)
Ltd., 540 U.S. 736, 744–45 (2004) (reinforcing that the
United States is not a “person” in the Sherman Act because
“if the definition of ‘person’ included the United States, then
the Government would be exposed to liability as an antitrust
defendant, a result Congress could not have intended”).

It may not be “outlandish” for Congress to subject
federal employees to criminal prosecution. See Bormes v.
United States, 759 F.3d 793, 796 (7th Cir. 2014). But the
 DANIEL V. NAT’L PARK SERVICE 15

statutory definition would read “the United States” into the
FCRA’s enforcement provisions, not “federal employees.”
We have recognized the difference between imposing
criminal penalties on individuals and government agencies;
the latter is “patently absurd.” Al-Haramain Islamic Found.,
Inc. v. Obama, 705 F.3d 845, 854 (9th Cir. 2012) (quoting
United States v. Singleton, 165 F.3d 1297, 1299–1300 (10th
Cir. 1999)). Because authorizing criminal penalties against
governments rather than individuals would be
“unprecedented,” it is highly unlikely that Congress
intended to do so obliquely with a broad definition of
“person.” Id.

Ascribing personhood to the federal government also
would authorize the Federal Trade Commission, the
Consumer Financial Protection Bureau, and state
governments to launch enforcement actions against the
United States for violations of the FCRA. See 15 U.S.C.
§§ 1681s(a)(2)(A), 1681s(c)(1)(B). Since Daniel does not
identify any other federal statute that applies such an
enforcement scheme against the United States, we doubt that
Congress meant to build a novel enforcement regime without
doing so explicitly. 5 The spectre of the Federal Trade

5 The closest analog we found—and not just because the statute
bears a similar acronym—is the Resource Conservation and Recovery
Act (“RCRA”), 42 U.S.C. § 6901 et seq. Like the FCRA, RCRA
provides for broad remedies against “any person” who violates the Act,
authorizes citizen suits against “any person” who violates the Act, and
deputizes the Environmental Protection Agency (“EPA”) to enforce
compliance orders against “any person” who violates the Act. Id.
§§ 6928, 6972.

The similarities end there. Although RCRA’s statutory definition of
“person” explicitly includes “the United States,” id. § 6903(15), RCRA
also contains a separate section specifically directed at violations of the
16 DANIEL V. NAT’L PARK SERVICE

Commission suing the United States, aka itself, to “recover
a civil penalty” from itself makes little sense. See id.
§ 1681s.

Finally, regarding the United States as a “person” would
license substantial potential punitive damages against the
federal government when Congress rarely does so. See
15 U.S.C. § 1681n (levying potential punitive damages on
“any person” who willfully violates the Act). In waiving the
sovereign immunity of the United States for certain tortious
acts, the Federal Tort Claims Act prohibits assessment of
punitive damages against the United States. See 28 U.S.C.
§ 2674. Hence, a finding of waiver of sovereign immunity
to authorize Daniel’s suit would require us to believe that
Congress chose to prohibit punitive damages against the
United States for tortiously killing people, see id., but
allowed punitive damages on the government for printing
overly revealing debit card receipts.

There is a “presumption against imposition of punitive
damages on governmental entities.” Vt. Agency of Nat. Res.
v. U.S. ex rel. Stevens, 529 U.S. 765, 785 (2000). Given the
presumption, Congress must be explicit in licensing punitive
damages against the sovereign, as it was in § 1681u(j),

Act by the federal government and provides a clarion waiver of
sovereign immunity. See id. § 6961(a) (“Each department, agency, and
instrumentality of . . . the Federal Government . . . shall be subject to . . .
such sanctions as may be imposed by a court to enforce such relief . . .
in the same manner, and to the same extent, as any person is subject to
such requirements . . . . The United States hereby expressly waives any
immunity otherwise applicable to the United States . . . .). Even as
RCRA authorizes EPA enforcement actions against other federal
agencies, it establishes a more collaborative procedure that recognizes
the unique posture of one agency punishing another for violations of
federal law: the EPA and the violating agency must “confer” before an
enforcement order becomes final. Id. § 6961(b).
 DANIEL V. NAT’L PARK SERVICE 17

discussed below. The FCRA’s assessment of potential
punitive damages against “any person” who “willfully fails
to comply with” the law is not so lucid. 15 U.S.C. § 1681n.

3. Section 1681u(j)’s Explicit Waiver of
Sovereign Immunity

Equating “the United States” with a “person” in multip le
sections of the FCRA also conflicts with a very clear waiver
of sovereign immunity elsewhere in the statute. In
§ 1681u(j), the FCRA provides that “[a]ny agency or
department of the United States obtaining or disclosing any
consumer reports, records, or information contained therein
in violation of this section is liable to the consumer” for
statutory and actual damages, and, “if the violation is found
to have been willful or intentional, such punitive damages as
a court may allow.”6 15 U.S.C. § 1681u(j). As the district
court observed, “[t]he fact that Congress explicitly named
the United States in the remedial provisions found at
§ 1681u(j) but not in the remedial provisions found at
§§ 1681n and 1681o demonstrates the equivocal nature of
any purported waiver of sovereign immunity” in the latter
sections. Congress enacted the explicit waiver of sovereign
immunity in § 1681u(j) less than one year before Congress
expanded liability to “person[s]” under the FCRA. See
Intelligence Authorization Act for Fiscal Year 1996, Pub. L.
No. 104-93, tit. VI, § 601, 109 Stat. 976–77. Because
Congress knew how to explicitly waive sovereign immunity
in the FCRA, it could have used that same language when

6Assessment of punitive damages in this section cuts both ways. It
demonstrates that Congress was willing to impose punitive damages on
the United States in the FCRA. At the same time, it shows that when
Congress intends to impose this rare liability on the United States,
Congress does so explicitly.
18 DANIEL V. NAT’L PARK SERVICE

enacting subsequent enforcement provisions. That Congress
subjected “person[s]” to liability in those later
amendments—not the United States itself or any of its
departments or agencies—is telling.

Of course, § 1681u concerns disclosures of informa tio n
by the Federal Bureau of Investigation and other federal
agencies involved in counterintelligence investigatio ns.
While the section’s limited focus on federal agencies might
explain the difference in statutory language, § 1681u clouds
whether the remedial provisions at §§ 1681o and 1681n
extend “unambiguously” to monetary claims against the
United States. See Ordonez v. United States, 680 F.3d 1135,
1138 (9th Cir. 2012) (quoting Lane, 518 U.S. at 192). We
view the comparison to § 1681u as particularly instructive
because “it is useful to benchmark the statutory langua ge
against other explicit waivers of sovereign immunity” when
determining whether an unequivocal waiver of sovereign
immunity exists. Al-Haramain, 705 F.3d at 851.

4. The FCRA’s Ambiguity Compared with Clear
Waivers of Sovereign Immunity

Further to that point, other citizen suit provisions that
waive sovereign immunity do so much more explicitly. See,
e.g., 33 U.S.C. § 1365 (the “Clean Water Act”) (“any citizen
may commence a civil action on his own behalf . . . against
any person (including (i) the United States, and (ii) any other
governmental instrumentality or agency . . . )”); 42 U.S.C.
§ 6972 (RCRA) (“any person may commence a civil action
on his own behalf . . . against any person, including the
United States and any other governmental instrumentality or
 DANIEL V. NAT’L PARK SERVICE 19

agency, . . .”). 7 Although Congress need not use “magic
words” to waive sovereign immunity, see Cooper, 566 U.S.
at 290, most other waivers of sovereign immunity
specifically mention the “United States.” See Al-Haramain,
705 F.3d at 851 (collecting examples of waivers). As we
have stated, “contrasted against other provisions deemed
sufficient to invoke waiver, the lack of an explicit waiver . . .
is stark, permitting suit only against a ‘person,’ without
listing the ‘United States.’” Id. at 852.

5. Daniel’s Interpretation of “Person”
Overreads the Statute

Glossing over the many statutory indicators to the
contrary, Daniel seeks to identify a waiver by focusing
exclusively on the FCRA’s definition of “person.” Because
the Park Service is a “governmental . . . agency”—her theory
goes—the Park Service must be a “person” that is liable to

7 The definition of “person” in the Clean Water Act more clearly
excludes the United States than does the definition in the FCRA. See
33 U.S.C. § 1362(5) (“The term ‘person’ means an individual,
corporation, partnership, association, State, municipality, commission ,
or political subdivision of a State, or any interstate body.”). The
definition in RCRA, however, expressly includes the United States. See
42 U.S.C. § 6903(15) (“The term ‘person’ means an individual, trust,
firm, joint stock company, corporation (including a government
corporation), partnership, association, State, municipality, commission ,
political subdivision of a State, or any interstate body and shall include
each department, agency, and instrumentality of the United States.”
(emphasis added)). RCRA’s definition of “person” and its explicit
waiver of the United States government’s sovereign immunity suggest
that Congress did not waive sovereign immunity in the FCRA. And if
the comparison between the provisions of RCRA and the Clean Water
Act and those of the FCRA muddies the water, it simply underscores that
Congress knows how to expressly waive immunity when it wants to do
so.
20 DANIEL V. NAT’L PARK SERVICE

Daniel for statutory damages or “any actual damages,”
punitive damages, costs and attorneys’ fees. The Seventh
Circuit embraced this theory in Bormes v. United States,
holding that the definition alone marks “the end of the
inquiry.” 759 F.3d 793, 795 (2014).

We are not convinced by the Seventh Circuit’s
reasoning. 8 Importantly, the United States conceded in
Bormes that it is a “person” for the purpose of the FCRA’s
substantive requirements; the government challenged only
that the FCRA authorizes money damages against it. Id.
The court seized on that concession, reasoning that “if the
United States is a ‘person’ . . . for the purpose of duties, how
can it not be one for the purpose of remedies? Nothing in
the FCRA allows the slightest basis for a distinction.” Id.

Yet the Seventh Circuit’s logic can just as easily be
flipped around. 9 If the United States cannot be a “person”

8 The Seventh Circuit traveled a long and twisted path in reaching
its conclusion. A panel of the court first held that the United States is
subject to suits like this one because of the sovereign immunity waiver
contained in the Tucker Act, 28 U.S.C. § 1346. See Talley v. U.S. Dep’t
of Agric., 595 F.3d 754, 759 (7th Cir. 2010). The court then granted
rehearing en banc, vacated the panel opinion, and affirmed the district
court’s dismissal on sovereign immunity grounds by an equally divided
court. See No. 09-2123, 2010 WL 5887796 (7th Cir. Oct. 1, 2010). Soon
after, another decision endorsing the Tucker Act theory worked its way
to the Supreme Court by way of the U.S. Court of Appeals for the Federal
Circuit, which hears Tucker Act appeals. United States v. Bormes,
568 U.S. 6 (2012). The Supreme Court unanimously rejected the Tucker
Act theory and remanded Bormes to the Seventh Circuit—because the
Federal Circuit no longer had jurisdiction—to consider whether the
remedial provisions of the FCRA contain an unequivocal waiver of
sovereign immunity. Id. at 20.

9
We observe that “identical language may convey varying content
when used in different statutes, sometimes even in different provisions
 DANIEL V. NAT’L PARK SERVICE 21

under the criminal provisions of the FCRA, why must the
United States unequivocally be a “person” for the purpose of
the other enforcement provisions? See United States v.
Nosal, 676 F.3d 854, 857–59 (9th Cir. 2012) (en banc)
(observing that “identical words . . . within the same statute
should normally be given the same meaning” and narrowly
construing a term because a broader construction would
substantially “expand the scope of criminal liability”). To
use the Seventh Circuit’s words, “[n]othing in the FCRA
allows the slightest basis for a distinction.” Bormes,
759 F.3d at 795. That is particularly true when the remedies
section also subjects “persons” to punitive damages, and the
United States is rarely prone to sweeping punitive liability.
See 15 U.S.C. § 1681n. The court in Bormes did not address
this important anomaly. Nor did the court consider the clear
waiver of sovereign immunity at § 1681u(j) or the
unparalleled enforcement regime created by its decision.

Even more curious, the Seventh Circuit has since
questioned its own reasoning in Bormes. Notably, the court
refused to expand its holding to effect a waiver of tribal
sovereign immunity in the FCRA. See Meyers v. Oneida
Tribe of Indians of Wis., 836 F.3d 818 (7th Cir. 2016), cert.
denied, 137 S. Ct. 1331 (2017). The court emphasized that
in Bormes, “the government conceded that it was a ‘person’
for purposes of the Act so the court had no reason to engage
in a full analysis of the scope of the term ‘any government.’ ”
Id. at 826. By contrast, the tribal government made no such
concession. Id. Finally grappling with the statutory term,

of the same statute.” See Yates v. United States, 135 S. Ct. 1074, 1082
(2015) (collecting cases). What is more, “Congress is free to waive the
Federal Government’s sovereign immunity against liability without
waiving its immunity from monetary damages awards.” Lane, 518 U.S.
at 196.
22 DANIEL V. NAT’L PARK SERVICE

the court concluded that “any government” is equivocal as
to whether it includes “Indian tribes” even though Indian
tribes are governments:

The district court did not dismiss [Meyers’s]
claim because it concluded that Indian tribes
are not governments. It dismissed his claim
because it could not find a clear, unequivo ca l
statement in FACTA that Congress meant to
abrogate the sovereign immunity of Indian
Tribes. Meyers has lost sight of the real
question in this sovereign immunity case—
whether an Indian tribe can claim immunity
from suit. The answer to this question must
be “yes” unless Congress has told us in no
uncertain terms that it is “no.” Any ambiguity
must be resolved in favor of immunity.
Abrogation of tribal sovereign immunity may
not be implied. Of course Meyers wants us to
focus on whether the Oneida Tribe is a
government so that we might shoehorn it into
FACTA’s statement that defines liable
parties to include “any government.” But
when it comes to sovereign immunity,
shoehorning is precisely what we cannot do.
Congress’[s] words must fit like a glove in
their unequivocality. It must be said with
“perfect confidence” that Congress intended
to abrogate sovereign immunity and
“imperfect confidence will not suffice. ”
Congress has demonstrated that it knows how
to unequivocally abrogate immunity for
Indian Tribes. It did not do so in FACTA.

Id. at 826–27 (internal citations omitted).
 DANIEL V. NAT’L PARK SERVICE 23

The same logic in Meyers applies with respect to the
United States. The “real question” in this sovereign
immunity appeal is not whether the United States is a
government; it is whether Congress explicitly waived
sovereign immunity or the United States can claim immunity
from suit. Having considered the structure of the FCRA as
a whole, we cannot say with “perfect confidence” that
Congress meant to abrogate the federal governme nt’s
sovereign immunity. And because “[a]ny ambiguities in the
statutory language are to be construed in favor of immunity, ”
Daniel’s suit was properly dismissed. See Cooper, 566 U.S.
at 290. 10

B. THE LEGISLATIVE HISTORY OF THE FCRA IS
CONSISTENT WITH OUR INTERPRETATION

During passage of the FCRA and every amendme nt,
Congress never considered subjecting the federal
government to liability in suits like the one filed by Daniel.
Thus, the legislative history “confirms what we have
concluded from the text alone.” Mohamad v. Palestinian
Auth., 566 U.S. 449, 460 (2012); see Al-Haramain, 705 F.3d
at 852 (considering legislative history to buttress a textual
conclusion that a statute does not waive sovereign
immunity).

In 1970, Congress passed the Fair Credit Reporting Act,
Pub. L. No. 91-508, tit. II, 84 Stat. 1127 (the “origina l
FCRA”). The original FCRA included the definition of
“person” that remains today. § 603, 84 Stat. at 1128. The

10 We cannot “expand [the FCRA’s] abrogation of immunity”
beyond that which is unequivocally expressed. Michigan v. Bay Mills
Indian Cmty., 134 S. Ct. 2024, 2034 (2014). Under our reading, the
FCRA authorizes money damages against the government only where
the “United States” is explicitly referenced in § 1681u(j).
24 DANIEL V. NAT’L PARK SERVICE

law did not impose civil liability on “any person” for
noncompliance with the FCRA; rather, civil suits for “any
actual damages,” punitive damages, costs and attorneys’ fees
were authorized against “[a]ny consumer reporting agency
or user of information” who willfully violated the Act.
§ 616, 84 Stat. at 1134; see also § 617, 84 Stat. at 1134
(imposing civil liability on “[a]ny consumer reporting
agency or user of information” who negligently violated the
Act).

The original FCRA did, however, impose criminal fines
or imprisonment on “[a]ny person who knowingly and
willingly obtains information on a consumer from a
consumer reporting agency under false pretenses.” § 619,
84 Stat. at 1134. It would be “patently absurd” to divine that
Congress intended to waive sovereign immunity for the sole
purpose of imposing criminal sanctions on the United States
in the original FCRA. See Al-Haramain, 705 F.3d at 854.

Fast forward to 1996, the Consumer Credit Reporting
Reform Act, Pub. L. No. 104-208, §§ 2401–52, 110 Stat.
3009-426–62 (the “1996 Act”), expanded the scope of the
FCRA’s civil damages provisions in four ways relevant to
this appeal. The 1996 Act replaced the “any consumer
reporting agency” language in the original FCRA with
“[a]ny person who fails to comply with any provision of this
title with respect to any other person shall be liable . . .”
§ 2412, 110 Stat. at 3009-446 (codified at 15 U.S.C.
§§ 1681n, 1681o) (emphasis added). It added statutory
damages of between $100 and $1,000 as an alternative to
“any actual damages” for each willful violation of the
FCRA. Id. (codified at 15 U.S.C. § 1681n). It authorized
the Federal Trade Commission to bring civil actions to
recover penalties from “any person” who violates the FCRA.
§ 2416, 110 Stat. at 3009-450 (codified at 15 U.S.C.
 DANIEL V. NAT’L PARK SERVICE 25

§ 1681s). 11 And, it authorized states to seek damages from
“any person” who violates the FCRA under certain
circumstances. § 2417, 110 Stat. at 3009-451 (codified at
15 U.S.C. § 1681s).

Despite the 1996 Act’s levy of substantial potential
liability on “person[s],” Congress never once mentioned
exposing the federal fisc to the same liability. See, e.g., H.R.
Rep. No. 103-486, at 49 (1994) (the enforcement provisio ns
target “banks” and “retailers”). 12 To the contrary,
Congressional Budget Office analyses of prior versions of
the 1996 Act—which also imposed civil liability on
“person[s]”—did not anticipate any costs from defending the
federal government against private suits. See id. at 62–63;
S. Rep. No. 103-209, at 32–34 (1994); H.R. Rep. No. 102-
692, at 45–46 (1992). The lack of any reference to potential
federal liability is particularly glaring given the federal
government’s role as the nation’s largest employer, lender,
and creditor, and its corresponding vulnerability to suit
under the new FCRA provisions.

In 2003, Congress enacted FACTA, Pub. L. No. 108-
159, 117 Stat. 1952, which added various prohibitions to the
FCRA including the expiration date requirement at issue

11 The Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010, Pub. L. No. 111-203, 124 Stat. 1376, shared authority to
initiate such civil actions with the Consumer Financial Protection
Bureau. See § 1088(a)(10), 124 Stat. at 2090 (codified at 15 U.S.C.
§ 1681s(b)(1)(H)).

12 The Seventh Circuit considered the absence of legislative history
about waiving sovereign immunity in the 1996 Act “unsurprising”
because Congress already had waived sovereign immunity in the original
FCRA. Bormes, 759 F.3d at 795. The infirmity of this reasoning is that
the original FCRA subjected “person[s]” to only criminal liability, which
Congress never would have thought applied to the United States.
26 DANIEL V. NAT’L PARK SERVICE

here. See § 113, 117 Stat. at 1959–60 (codified at 15 U.S.C.
§ 1681c(g)). FACTA did not amend the FCRA’s statutory
definition of “person” or its provisions related to civil suits,
damages, and federal and state enforcement of the law.

Like the 1996 Act, FACTA’s legislative history
establishes that the receipt prohibitions were directed toward
“businesses” or “merchants” that accept credit and debit
cards, not the federal government. See S. Rep. No. 108-166,
at 12 (2003). In fact, the Congressional Budget Office report
on FACTA refers to the receipt requirements as a “private-
sector mandate” without reference to any cost to the U.S.
government. Id. at 28–30.

Taken together, the legislative history demonstrates that
Congress never considered extending the enforceme nt
provisions of the FCRA to the federal government. Rather
than “specifically consider” sovereign immunity in crafting
the enforcement provisions, Congress “legislate[d] on a
sensitive topic inadvertently or without due deliberatio n”
when it used “person.” Sossamon, 563 U.S. at 290–91. The
explicit waiver rule exists to prevent such inadverte nt
drafting from exposing the United States to liability. Id.

Daniel’s suit fails because the Park Service is immune
from suit. No amendment of the complaint could remedy the
absence of a clear waiver of sovereign immunity in the
FCRA.

AFFIRMED.