Klint L. Mowrer v. DOT

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2020 Decided September 24, 2021

No. 19-5321

KLINT L. MOWRER & FRED WEAVER, JR.,
APPELLANTS

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01158)

Charles R. Stinson argued the cause for appellants. With
him on the briefs was Paul D. Cullen, Jr.

Caroline D. Lopez, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Mark B. Stern, Attorney, Steven G. Bradbury, General
Counsel, U.S. Department of Transportation, Paul M. Geier,
Assistant General Counsel for Litigation and Enforcement, Joy
K. Park, Senior Trial Attorney, and Charles J. Fromm, Deputy
Chief Counsel, Federal Motor Carrier Safety Administration.

Before: WILKINS and KATSAS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
 2
Opinion for the Court filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge KATSAS.

Opinion concurring in part and concurring in the judgment
filed by Senior Circuit Judge RANDOLPH.

KATSAS, Circuit Judge: The Fair Credit Reporting Act
(FCRA) governs the release of consumer reports by consumer
reporting agencies. This appeal presents the question whether
the Federal Motor Carrier Safety Administration acts as a
consumer reporting agency by distributing safety records of
commercial truck drivers to prospective employers, as required
by another federal statute. We hold that the Administration
does not act as a consumer reporting agency in doing so, and
we therefore affirm the dismissal of this FCRA damages action.

I

A

Congress enacted FCRA to “ensure fair and accurate credit
reporting, promote efficiency in the banking system, and
protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551
U.S. 47, 52 (2007). To those ends, FCRA comprehensively
regulates consumer reporting agencies. Three of its obligations
are directly relevant here. First, in preparing any consumer
report, a consumer reporting agency must follow reasonable
procedures to ensure that the report is as accurate as possible.
15 U.S.C. § 1681e(b). Second, a consumer reporting agency
must investigate the accuracy of its records about a consumer
upon the consumer’s request. Id. § 1681i(a)(1)(A). Third, if a
consumer reporting agency includes in a consumer report any
information that the consumer disputes, the report must note
the dispute and summarize the consumer’s position. Id.
§§ 1681c(f), 1681i(b)–(c).
 3
FCRA defines its key terms “consumer reporting agency”
and “consumer report.” A “consumer reporting agency” is
“any person which, for monetary fees … regularly engages in
whole or in part in the practice of assembling or evaluating
consumer credit information or other information on
consumers for the purpose of furnishing consumer reports to
third parties.” 15 U.S.C. § 1681a(f). A “consumer report” is
any communication by a consumer reporting agency that meets
two further criteria. First, the communication must bear on a
consumer’s “credit worthiness, credit standing, credit capacity,
character, general reputation, personal characteristics, or mode
of living.” Id. § 1681a(d)(1). Second, the report must “serv[e]
as a factor in establishing the consumer’s eligibility” for one of
several purposes, including “employment purposes,” id.
§ 1681a(d)(1)(B), which means “evaluating a consumer for
employment, promotion, reassignment or retention as an
employee,” id. § 1681a(h). A “consumer” means an
“individual.” Id. § 1681a(c).

FCRA authorizes the award of money damages to
consumers injured by certain violations of the statute. It
imposes liability for actual damages on “[a]ny person” who
negligently violates FCRA. 15 U.S.C. § 1681o(a)(1). It
imposes liability for actual or statutory damages on “[a]ny
person” who willfully violates FCRA. Id. § 1681n(a)(1)(A).
And it defines “person” to include any “government or
governmental subdivision or agency.” Id. § 1681a(b).

B

Since 1998, Congress has required the Department of
Transportation to collect information on the safety of
commercial motor carriers and drivers. See 49 U.S.C.
§ 31106(a)(3)(B). The Department stores this information in a
database called the Motor Carrier Management Information
 4
System (MCMIS), which it administers through the Federal
Motor Carrier Safety Administration. See Privacy Act of 1974:
System of Records, 65 Fed. Reg. 83,124, 83,124–25 (Dec. 29,
2000). The Administration obtains much of its information
from state governments, which submit it as a condition of
receiving federal grants. 49 U.S.C. § 31102(c)(2)(L), (P); 49
C.F.R. § 350.207(a)(12).

The MCMIS contains a wide range of information on
commercial drivers, including crash reports and records of
roadside inspections. See 65 Fed. Reg. at 83,125. The
Administration uses this information to guide the operation of
its Motor Carrier Safety Assistance Program, see id., which
involves grants to states and other political jurisdictions to
improve motor-carrier safety, see 49 U.S.C. § 31102; 49 C.F.R.
§ 350.101 et seq. The agency also uses the information to
guide enforcement actions, see 65 Fed. Reg. at 83,124–25,
which include placing out of service commercial drivers who
pose an imminent safety hazard, 49 U.S.C. § 521(b)(5).

In 2005, Congress directed the Administration to make
certain “reports contained in the [MCMIS]” available to pre-
employment screeners for the motor-carrier industry. Safe,
Accountable, Flexible, Efficient (SAFE) Transportation Act,
Pub. L. No. 109-59, sec. 4117(a), § 31150(a), 119 Stat. 1144,
1728 (2005) (codified at 49 U.S.C. § 31150(a)). The
Administration implemented this direction by creating the Pre-
Employment Screening Program (PSP), which allows
prospective employers to access crash and inspection reports
on commercial drivers. See Privacy Act of 1974; System of
Records Notice, 75 Fed. Reg. 10,554, 10,556 (Mar. 8, 2010).
The PSP charges a fee for these records and provides them only
with a driver’s written consent. Id.
 5
The SAFE Transportation Act requires the Administration
to satisfy four conditions before releasing MCMIS records to
prospective employers. First, the Administration must ensure
that any information is released “in accordance with [FCRA]
and all other applicable Federal law.” 49 U.S.C. § 31150(b)(1).
Second, it must ensure that the driver consents to release of the
information. Id. § 31150(b)(2). Third, it must ensure that the
screener does not release the information to any other person.
Id. § 31150(b)(3). Fourth, it must provide a procedure for the
driver to correct inaccurate information in the System. Id.
§ 31150(b)(4).

To comply with the last requirement, the Administration
created a system called DataQs, which allows drivers to
challenge information in their PSP reports. Pre-Employment
Screening Program, 77 Fed. Reg. 42,548, 42,551 (July 19,
2012). DataQs forwards challenges to the state that submitted
the contested information, and the state then decides whether
to modify or remove it. Id.

C

Klint Mowrer and Fred Weaver are commercial truck
drivers who received citations for violating state vehicle-safety
laws. Mowrer received a citation because his “rear drag link”
had too much “play by hand pressure,” and Weaver received a
citation for failing to obey a “direction to be weighed.” J.A.
213, 215. State officials reported these citations to the
Administration for inclusion in the MCMIS. After state courts
dismissed misdemeanor charges arising from the citations, the
drivers asked the Administration to remove them from the
MCMIS. The Administration forwarded the requests to the
relevant state agencies, which declined to remove the citations.
The drivers later authorized the release of their PSP reports to
 6
prospective employers. They now allege harm from the
inclusion of their citations in those reports.

Mowrer sued the Administration in 2012. Joined by three
other drivers and a trade association, he raised claims under
FCRA, the Administrative Procedure Act, and the Privacy Act.
Weaver filed a similar action in our court, which we transferred
to the district court. Weaver v. FMCSA, 744 F.3d 142, 148
(D.C. Cir. 2014). In 2014, the drivers filed a consolidated
complaint, which raised FCRA and APA claims but no Privacy
Act claim. The drivers sought both damages under FCRA and
prospective relief under the APA.

In 2015, the Administration moved to dismiss the
complaint. The district court denied the motion. As relevant
here, it held that FCRA waives federal sovereign immunity
from damages for FCRA violations. Owner-Operator Indep.
Drivers Ass’n v. Foxx, Nos. 12-1158, 14-548, 2015 WL
13651262, at *4 n.3 (D.D.C. Mar. 10, 2015).

In 2016, the district court dismissed the complaint for lack
of standing. Owner-Operator Indep. Drivers Ass’n v. DOT,
211 F. Supp. 3d 252, 261–62 (D.D.C. 2016). We affirmed in
part and reversed in part. 879 F.3d 339 (D.C. Cir. 2018). First,
we held that Mowrer and Weaver had Article III standing to
seek damages based on the Administration’s release of their
safety records to prospective employers. Id. at 345. Next, we
held that the drivers and their co-plaintiffs lacked standing to
seek injunctive relief, as the MCMIS no longer contained any
disputed information. Id. at 346–47. We thus remanded for
further proceedings on the damages claims under FCRA. Id. at
347.

In May 2018, the drivers moved to amend their complaint
to seek injunctive relief and to resurrect the Privacy Act claims
that they previously had asserted individually. The district
 7
court denied the motion on the ground that our prior decision
had foreclosed injunctive relief, but it invited the drivers to add
Privacy Act claims in a separate motion. Owner-Operator
Indep. Drivers Ass’n v. DOT, 316 F. Supp. 3d 201, 206 (D.D.C.
2018). The drivers again moved to add those claims in July
2018. But after receiving briefing on the issue, the court denied
that motion as well. It reasoned that the drivers had unduly
delayed in seeking to revive their Privacy Act claims and, in
the alternative, that the drivers had waived the claims by
omitting them from their consolidated complaint. Mowrer v.
DOT, 326 F.R.D. 350, 353 (D.D.C. 2018). The operative
complaint thus seeks relief only under FCRA.

The drivers allege that the Administration violated FCRA
in three ways: by not following reasonable procedures to
ensure that their PSP reports were as accurate as possible, by
failing to investigate the accuracy of their PSP reports upon
request, and by refusing to add a statement of dispute to their
PSP reports. The drivers seek actual or statutory damages.

The district court dismissed the complaint on the ground
that the Administration, in releasing MCMIS records as
required by the SAFE Transportation Act, is not a “consumer
reporting agency” under FCRA. Mowrer v. DOT, No. 12-1158,
2019 WL 4418747, at *6 (D.D.C. Sept. 16, 2019).

On appeal, the drivers challenge both the dismissal of their
FCRA claim and the denial of their July 2018 motion to amend.
We have appellate jurisdiction under 28 U.S.C. § 1291.

II

Before reaching the merits, we consider whether Congress
has waived the federal government’s sovereign immunity from
damages claims under FCRA.
 8
A waiver of sovereign immunity “must be unequivocally
expressed in statutory text.” FAA v. Cooper, 566 U.S. 284, 290
(2012) (cleaned up). Any ambiguities must be “construed in
favor of immunity,” and ambiguity exists if there is a “plausible
interpretation of the statute that would not authorize money
damages against the Government.” Id. at 290–91. At the same
time, waiving sovereign immunity does not require “magic
words.” Id. at 291. We instead require only that the waiver
“be clearly discernable from the statutory text in light of
traditional interpretive tools.” Id.
FCRA meets this standard. It provides that “[a]ny person
who willfully fails to comply with any requirement imposed
under this subchapter with respect to any consumer is liable to
that consumer” for either “actual damages” or statutory
“damages” within specified dollar ranges. 15 U.S.C.
§ 1681n(a)(1)(A). “[T]his subchapter” refers to subchapter III
of chapter 41 of Title 15, which contains FCRA. See id.
§§ 1681–1681x. Likewise, FCRA provides that “[a]ny person
who is negligent in failing to comply with any requirement
imposed under this subchapter with respect to any consumer is
liable to that consumer” for “actual damages.” Id.
§ 1681o(a)(1). FCRA also defines the term “person”—it states
that “for the purposes of this subchapter ... [t]he term ‘person’
means any individual, partnership, corporation, trust, estate,
cooperative, association, government or governmental
subdivision or agency, or other entity.” Id. § 1681a(a)–(b). For
willful violations, FCRA provides one cause of action against
“[a]ny person,” id. § 1681n(a)(1)(A), and an additional cause
of action against any “natural person,” id. § 1681n(a)(1)(B).
Together, these provisions speak clearly enough to waive
federal sovereign immunity. FCRA defines “person” to
include “any ... government”—a term that, as used in a federal
statute, surely includes the federal government. FCRA makes
the definition generally applicable to subchapter III, which
 9
includes its private causes of action. Through those causes of
action, FCRA imposes monetary liability on “any person” who
willfully or negligently violates its terms. And it distinguishes
between liability that runs against “any” person and liability
that runs only against “natural” persons, reflecting a calibrated
approach to the question of which persons should bear which
liabilities. For these reasons, the Seventh Circuit correctly held
that FCRA waives federal sovereign immunity. Bormes v.
United States, 759 F.3d 793 (7th Cir. 2014).
The Fourth and Ninth Circuits have reached the opposite
conclusion, Robinson v. U.S. Dep’t of Educ., 917 F.3d 799 (4th
Cir. 2019); Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir.
2018), but their reasoning is unpersuasive.
These courts noted that FCRA contains a second, more
specific waiver of sovereign immunity. Robinson, 917 F.3d at
803–04; Daniel, 891 F.3d at 771–72. Section 626 of FCRA
requires consumer reporting agencies to disclose certain
information to the Federal Bureau of Investigation, 15 U.S.C.
§ 1681u(a)–(b); permits the FBI to disseminate that
information to other federal agencies in limited circumstances,
id. § 1681u(g); and imposes damages liability on “[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,” id. § 1681u(j). But there is a good
reason why section 626 specifically targets federal agencies, as
only they may lawfully receive consumer information under it.
The fact that section 626 imposes liability only on federal
agencies thus says little about whether FCRA’s other causes of
action cover the United States through broader language
encompassing “any ... government.”
The Fourth Circuit reasoned that if FCRA’s definition of
“person” applied to its primary causes of action, then a serious
constitutional question would arise. Robinson, 917 F.3d at 805.
 10
For if those causes of action run against “any ... government,”
they would cover state governments even though Congress
cannot abrogate state sovereign immunity under the Commerce
Clause. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47
(1996). But even if FCRA unconstitutionally imposes damages
liability on state governments, there is no constitutional bar to
Congress waiving the sovereign immunity of the federal
government. Moreover, although ambiguous statutes do not
abrogate state sovereign immunity—just as they do not waive
federal sovereign immunity—that does not license courts to
disregard the clear terms of unambiguous statutes. Thus, when
Congress subjected any “public agency” to damages liability
under the Age Discrimination in Employment Act, and
separately defined “public agency” to include states, it
managed to extend ADEA liability to the states—even though
the extension proved unconstitutional. See Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 73–74 (2000). So too here, when
Congress subjected any “person” to damages liability under
FCRA, and separately defined “person” to include “any ...
government,” it acted with sufficient clarity to reach federal
and state governments.
FCRA also subjects covered persons to punitive damages,
15 U.S.C. § 1681n(a)(2), criminal liability, id. § 1681q, and
civil enforcement actions by the Federal Trade Commission,
id. § 1681s(a), and the states, id. § 1681s(c). According to the
Fourth and Ninth Circuits, the consequences of applying these
provisions to the federal government would range from
implausible to absurd. So, the courts concluded, FCRA’s
definition of “person” must be limited to its “substantive”
rather than its “enforcement” provisions. See Robinson, 917
F.3d at 806; Daniel, 891 F.3d at 770–71. But some of these
consequences are hardly absurd. For instance, Congress may
impose punitive damages on government entities, so long as it
does so “expressly.” City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 260 n.21 (1981). And the federal government
 11
routinely investigates itself, which is the primary mission of
various Inspectors General. As for the federal government
imposing criminal liability on itself, or subjecting itself to
investigation by the states, we may assume that contextual
considerations would prevent application of the “person”
definition as written. See Util. Air Regul. Grp. v. EPA, 573
U.S. 302, 320 (2014) (defined term “may take on distinct
characters from association with distinct statutory objects”).
But no such contextual considerations apply with respect to
sovereign immunity, where the only interpretive constraint is
that Congress waive it unambiguously. Finally, there is no
arguable basis for limiting FCRA’s definition of “person” to
substantive but not enforcement provisions; the definition by
its terms is “applicable for the purposes of this subchapter”—
i.e., subchapter III, which contains the entire statute. 15 U.S.C.
§ 1681a(a). So once it is conceded that “any ... government”
includes the United States—which is necessary to make
FCRA’s substantive provisions apply to the federal
government—there is no basis for denying that the same
definition governs FCRA’s private damages actions.

Finally, the Ninth Circuit reasoned that FCRA’s statutory
history counsels against reading its broad definition of
“person” to effect a sovereign-immunity waiver. See Daniel,
891 F.3d at 774–76. As originally enacted in 1970, FCRA
contained its current definition of “person,” but imposed
liability only on “[a]ny consumer reporting agency or user of
information” who negligently or willfully violated the Act.
Pub. L. No. 91-508, tit. VI, §§ 616–617, 84 Stat. 1127, 1134
(1970). So, the argument goes, the definition of “person” in
the 1970 statute cannot have waived sovereign immunity. We
fail to see the relevance of that conclusion, for Congress later
broadened FCRA’s damages actions to run against any
“person,” Consumer Credit Reporting Reform Act of 1996,
 12
Pub. L. No. 104-208, § 2412, 110 Stat. 3009-426, 3009-446,
which is the text that we must construe and apply here.1

For these reasons, we hold that FCRA waives federal
sovereign immunity from its damages claims.

III

To qualify as a “consumer reporting agency” regulated by
FCRA, a person must regularly engage “in the practice of
assembling or evaluating consumer credit information or other
information on consumers for the purpose of furnishing
consumer reports to third parties.” 15 U.S.C. § 1681a(f). The
drivers contend that the Administration is a consumer reporting
agency because it assembles accident and vehicle-inspection
reports in the MCMIS and then furnishes them to prospective
employers through the PSP. The drivers argue that the
Administration violated FCRA by not using reasonable
procedures to ensure the accuracy of these records, id.
§ 1681e(b), by failing to investigate the accuracy of their
records upon request, id. § 1681i(a)(1)(A), and by failing to

1
We do not share the Ninth Circuit’s confidence that the 1970
statute effected no waiver of sovereign immunity. For example, the
statute imposed damages liability on any “user of information” who
negligently or willfully violated its terms, Pub. L. No. 91-508, tit. VI,
sec. 601, §§ 616–617, 84 Stat. at 1134; it permitted consumer
reporting agencies to disclose consumer reports to any “person” who
the reporting agency believed intended to use the information for
credit or other specified purposes, id. § 604(3), 84 Stat. at 1129; and
it defined “person” to include any government or government
agency, id. § 603(b), 84 Stat. at 1128. The 1970 Act thus appears to
waive sovereign immunity insofar as it uses consumer information
received from a credit reporting agency, though we need not
definitively resolve that question.
 13
note to prospective employers that the drivers disputed the
accuracy of the citations at issue, id. §§ 1681c(f), 1681i(b)–(c).
In our view, the government is not a “consumer reporting
agency” in its administration of the MCMIS and the PSP. For
the sake of argument, we may assume that driver-safety records
are “consumer reports” within the meaning of FCRA. But
while the SAFE Transportation Act requires the
Administration to make such records available to prospective
employers, the Administration neither assembles nor evaluates
the records for that purpose. To the contrary, it assembles and
evaluates driver-safety records in the MCMIS, see 65 Fed. Reg.
at 83,124–25, and does so to “support safety regulatory and
enforcement activities” required by Title 49, see 49 U.S.C.
§ 31106(a)(1). The Administration thus uses MCMIS data to
inform its administration of the Motor Carrier Safety
Assistance Program, see 65 Fed. Reg. at 83,125, which
provides some $300 million in annual grants to states and other
jurisdictions for safety-related activities, see 49 U.S.C.
§§ 31102, 31104. Likewise, the Administration uses MCMIS
data to inform its own enforcement activity. See 65 Fed. Reg.
at 83,124–25. It has assembled and evaluated MCMIS data for
these purposes at least since 1998, see Pub. L. No. 105-178,
sec. 4004(a), § 31106, 112 Stat. 107, 398–400 (1998)—seven
years before the SAFE Transportation Act authorized the
Administration to release driver-safety records to prospective
employers. And the SAFE Transportation Act simply requires
the release of specified “reports” that are already “contained in
the Motor Carrier Management Information System”—namely
accident reports, inspection reports with no driver-related
safety violations, and inspection reports with serious driver-
related safety violations. 49 U.S.C. § 31150(a). For these
reasons, the Administration cannot fairly be described as
regularly engaged in “assembling” or “evaluating” these
accident and inspection reports “for the purpose of furnishing”
them to the drivers’ prospective employers.
 14
The canon against surplusage reinforces our conclusion.
The SAFE Transportation Act requires the Administration to
satisfy four requirements before releasing MCMIS records to
pre-employment screeners, and these requirements incorporate
or parallel ones that FCRA already imposes on consumer
reporting agencies. First, the Administration must “ensure that
any information that is released” to prospective employers
“will be in accordance with [FCRA] and all other applicable
Federal law.” 49 U.S.C. § 31150(b)(1). Second, the
Administration must obtain a driver’s written consent before
releasing his safety records, id. § 31150(b)(2), which tracks
FCRA’s requirement that a consumer reporting agency must
obtain the consumer’s written consent before releasing a
consumer report for employment purposes, 15 U.S.C.
§ 1681b(b)(1)(A)(i), (b)(2)(A)(ii). Third, the Administration
must ensure that MCMIS records will be released only to the
prospective employer, 49 U.S.C. § 31150(b)(3), which tracks
FCRA’s requirement that a consumer reporting agency must
require prospective users to certify that a consumer report will
be used only for authorized purposes, 15 U.S.C. § 1681e(a).
Fourth, the Administration must create a procedure for drivers
to correct inaccurate information in the MCMIS, 49 U.S.C.
§ 31150(b)(4), which tracks FCRA’s requirement that credit
reporting agencies use procedures to ensure the “maximum
possible accuracy” of information in consumer reports, 15
U.S.C. § 1681e(b), and conduct at least a “reasonable
reinvestigation” if a consumer disputes the accuracy of
information in his file, id. § 1681i(a)(1)(A). These various
requirements in the SAFE Transportation Act would have little
or no effect if the Administration were already a “consumer
reporting agency” covered by FCRA. To be sure, the SAFE
Transportation Act contains at least a bit of surplusage insofar
as it incorporates “other applicable Federal law” besides
FCRA. 49 U.S.C. § 31150(b)(1). But one short, unavoidably
redundant catchall phrase is a far cry from what the plaintiffs’
 15
position implies—the pointless incorporation into the SAFE
Transportation Act of one FCRA requirement after another.
In contrast, our interpretation gives meaningful effect to
the four FCRA-related conditions in the SAFE Transportation
Act. Specifically, they oblige the Administration to act “in
accordance with” FCRA provisions regarding the release of
information and to follow three other requirements tracking
those of FCRA. On this understanding, the Administration’s
release of the drivers’ safety records may well have violated
the SAFE Transportation Act, though not FCRA itself. Any
such violation of the SAFE Transportation Act may, in an
appropriate case, be redressable through the APA. But here,
we have already held that the drivers lack standing to seek
prospective relief under the APA, as the disputed records have
already been removed from the MCMIS. See Owner-Operator
Indep. Drivers, 879 F.3d at 346–47. And a violation of section
31150 could not itself support the money damages sought by
the drivers, for the SAFE Transportation Act contains no
arguable waiver of sovereign immunity.
For these reasons, we hold that the government did not
become a “consumer reporting agency” under FCRA through
its administration of the MCMIS database and the PSP
disclosure program. We thus affirm the dismissal of the
drivers’ damages claims under FCRA.
IV

The remaining issue is whether the district court
permissibly denied the drivers’ July 2018 motion to amend
their complaint to add Privacy Act claims. Federal Rule of
Civil Procedure 15(a)(2) provides that a district court “should
freely” allow amendment “when justice so requires.” But the
decision whether to permit amendment is “vested in the sound
discretion of the trial court,” Doe v. McMillan, 566 F.2d 713,
 16
720 (D.C. Cir. 1977), which can deny leave to amend based on
either “undue delay” by the moving party or “undue prejudice”
to the other side, Foman v. Davis, 371 U.S. 178, 182 (1962).

In this case, the district court permissibly denied leave to
amend. We have consistently held that undue delay is a valid
ground for denying leave to amend, see, e.g., Elkins v. District
of Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012); Doe, 566
F.2d at 720, especially when the plaintiff offers “no good
reason” for the delay, Trudel v. SunTrust Bank, 924 F.3d. 1281,
1288 (D.C. Cir. 2019). Here, the drivers offer no explanation
why they raised Privacy Act claims in their opening
complaints, omitted them from their consolidated complaint,
and then waited four years before raising the claims anew. The
drivers instead argue that undue delay cannot support a denial
of leave to amend without a further showing of prejudice. We
need not decide whether such a showing is always required, for
we agree with the district court that, in this case, the drivers
waived their Privacy Act claims. The district court reasonably
concluded that “if an amended complaint omits claims raised
in the original complaint, the plaintiff has waived those omitted
claims.” Young v. City of Mount Ranier, 238 F.3d 567, 573
(4th Cir. 2001). And excusing such a waiver here would both
eliminate a defense to liability and oblige the Administration to
continue litigating a case that has already run for nine years.
That is more than enough to deny amendment.

We recognize that the district court, in denying the first
motion to amend, remarked that the drivers could later add a
Privacy Act claim. Owner-Operator Indep. Drivers, 316 F.
Supp. 3d at 206. The drivers argue that this remark bound the
court going forward. But a court may “modify or rescind its
orders at any point prior to final judgment in a civil case.”
Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016). Here, the
district court changed course long before final judgment, then
 17
reasonably explained its revised position. Changing course in
this way did not violate any law of the case.

V

The district court properly dismissed the drivers’
complaint and permissibly denied their July 2018 motion for
leave to amend.

Affirmed.
 KATSAS, Circuit Judge, concurring: The Court’s opinion
in this case proceeds in conventional fashion by deciding, first,
that the Fair Credit Reporting Act waives the federal
government’s sovereign immunity from claims for money
damages and, second, that the FCRA claims asserted against
the government here lack merit. Judge Randolph criticizes us
for deciding the sovereign-immunity question unnecessarily. I
write separately to explain my view that because the sovereign-
immunity question goes to our jurisdiction, we must decide it
before reaching the merits.
I
In Steel Co. v. Citizens for a Better Environment, 523 U.S.
83 (1998), the Supreme Court famously and emphatically
confirmed that a federal court, before it resolves the merits of
a case, must first conclude that it has jurisdiction to do so. Id.
at 93–102. This requirement, which rests on a “long and
venerable line of our cases,” arises from “‘the nature and limits
of the judicial power’” and is “‘inflexible and without
exception.’” Id. at 94–95 (quoting Mansfield, C. & L.M.R. Co.
v. Swan, 111 U.S. 379, 382 (1884)). Because jurisdiction is the
“power to declare the law,” a court without jurisdiction “cannot
proceed at all in any cause.” Id. at 94 (quoting Ex parte
McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). A court with
only possible or hypothetical jurisdiction “produces nothing
more than a hypothetical judgment—which comes to the same
thing as an advisory opinion.” Id. at 101.
The Supreme Court held in FDIC v. Meyer, 510 U.S. 471
(1994), that “[s]overeign immunity is jurisdictional in nature.”
Id. at 475. The Court thought it “axiomatic that the United
States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” Id.
(quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)).
Likewise, “the terms of the United States’ consent to be sued
in any court define that court’s jurisdiction to entertain the
suit.” Id. (cleaned up) (quoting United States v. Sherwood, 312
 2
U.S. 584, 586 (1941)). “Therefore,” before reaching the merits
of a suit for damages against the federal government, a court
“must first decide” whether Congress has waived the
government’s sovereign immunity. Id. Meyer proceeded to
hold that Congress had waived the government’s immunity on
the claims at issue, id. at 475–83, and then to reject the claims
on their merits, id. at 483–86.
After Meyer, our court has four times held that we must
find a waiver of sovereign immunity before reaching the merits
of claims against the federal government. In Rochon v.
Gonzales, 438 F.3d 1211 (D.C. Cir. 2006), we cited Steel Co.
for the proposition that we “must” begin with the “issue of
jurisdiction,” we described federal sovereign immunity as
“jurisdictional” for that purpose, and we reached the merits
only after resolving the disputed immunity question. Id. at
1214–16. In Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006),
we ranked as “‘jurisdictional’” the question “whether the
United States has waived its sovereign immunity,” and we
reached the merits only after “[h]aving concluded that there is
jurisdiction.” Id. at 185–87 (quoting Meyer, 510 U.S. at 475).
In Perry Capital LLC v. Mnuchin, 864 F.3d 591 (D.C. Cir.
2017), we held that Steel Co.’s “obligation to assure ourselves
we have jurisdiction” at the outset “extends to sovereign
immunity because it is ‘jurisdictional in nature.’” Id. at 619
(quoting Meyer, 510 U.S. at 475). In Sierra Club v. Wheeler,
956 F.3d 612 (D.C. Cir. 2020), we held that “[b]ecause
sovereign immunity is ‘jurisdictional in nature,’ we must
assure ourselves that the Sierra Club’s claims fall within a valid
waiver of sovereign immunity before allowing the suit to
proceed.” Id. at 616 (quoting Meyer, 510 U.S. at 475). We
have also treated federal sovereign immunity as jurisdictional
in other respects. We have raised the issue sua sponte. See
Perry Capital, 864 F.3d at 619; Trudeau, 456 F.3d at 185;
Rochon, 438 F.3d at 1215–16. And we have held that an
agency’s appearance in court does not waive its sovereign
 3
immunity because “officers of the United States possess no
power … to confer jurisdiction on a court in the absence of
some express provision of Congress.” Dep’t of Army v. FLRA,
56 F.3d 273, 275 (D.C. Cir. 1995) (quoting United States v.
N.Y. Rayon Importing Co., 329 U.S. 654, 660 (1947)).
This analysis accords with the treatment of state sovereign
immunity. Federal and state sovereign immunity derive from
the same source—the centuries-old view that no sovereign may
“be sued without its consent,” which was “universal in the
States when the Constitution was drafted and ratified.” Alden
v. Maine, 527 U.S. 706, 715–16 (1999). Before ratification,
states enjoyed this immunity as “fully sovereign nations,”
Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1493–95 (2019)—
as the United States does today. States still largely enjoy the
same immunity, insofar as sovereign immunity “limits the
grant of judicial authority in Art. III.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Likewise, the
Eleventh Amendment, which sought “to restore the original
constitutional design” regarding sovereign immunity, Alden,
527 U.S. at 722, speaks in expressly jurisdictional terms, U.S.
Const. amend. XI (limiting scope of the federal “Judicial
power” to entertain suits against states). And because state
sovereign immunity imposes a “jurisdictional restriction” on
the federal courts, it must be “given priority” under Steel Co.
Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529
U.S. 765, 778–80 (2000).
Our treatment of foreign sovereign immunity is also
instructive. The Foreign Sovereign Immunities Act grants
foreign sovereigns immunity “from the jurisdiction of the
courts of the United States and of the States,” 28 U.S.C. § 1604,
except as provided by exceptions in the FSIA itself, see id.
§§ 1605–1607. Accordingly, we must resolve assertions of
foreign sovereign immunity “[a]t the threshold of every
action,” before the merits. Verlinden B.V. v. Cent. Bank of
 4
Nigeria, 461 U.S. 480, 493–94 (1983); Process & Ind. Dev.
Ltd. v. Fed. Repub. of Nigeria, 962 F.3d 576, 584 (D.C. Cir.
2020).
II
Against all this, Judge Randolph invokes In re Sealed
Case No. 99-3091, 192 F.3d 995 (D.C. Cir. 1999) (per curiam).
There, we held that because federal sovereign immunity “can
be waived,” it is a “less than pure jurisdictional question,”
which “need not be decided before [the] merits.” Id. at 1000–
01 (cleaned up). The primary authority we cited was United
States ex rel. Long v. SCS Business & Technical Institute, Inc.,
173 F.3d 890 (D.C. Cir. 1999), which we read to hold that
Eleventh Amendment immunity “need not be decided before
the merits.” 192 F.3d at 1000.
How to handle this clear conflict among our precedents?
We have held that “when a decision of one panel is inconsistent
with the decision of a prior panel, the norm is that the later
decision, being in violation of that fixed law, cannot prevail.”
Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011).
Moreover, if an earlier circuit precedent prevails over later
inconsistent circuit precedents, then so too must an earlier
Supreme Court precedent. Thompson v. Dallas City Attorney’s
Office, 913 F.3d 464, 467–68 (5th Cir. 2019). And Sealed Case
conflicts with prior Supreme Court precedent: whereas Meyer
held that federal sovereign immunity is a “jurisdictional” issue
that we “must first decide” before reaching the merits, 510 U.S.
at 475, Sealed Case held that federal sovereign immunity is
only “quasi-jurisdictional” and so “we are not required to
decide [it] before the merits,” 192 F.3d at 1000–01. Later
 5
panels of this Court were thus correct to follow Meyer over
Sealed Case, and we should do the same.1
Moreover, later Supreme Court decisions have
“eviscerated” the reasoning of Sealed Case, which separately
makes it no longer binding. See Dellums v. NRC, 863 F.2d 968,
978 n.11 (D.C. Cir. 1988). Sealed Case held that federal
sovereign immunity is a “less than pure jurisdictional
question”—and thus not subject to Steel Co.—because
Congress can waive it. 192 F.3d at 1000. But in that respect,
federal sovereign immunity is like two other waivable but
jurisdictional questions: Eleventh Amendment immunity,
which Sealed Case discussed, and personal jurisdiction, see
Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 394 (1998)
(Kennedy, J., concurring) (“the hybrid nature of the
jurisdictional bar erected by the Eleventh Amendment ... bears
substantial similarity to personal jurisdiction requirements,
since it can be waived”); Baude & Sachs, The Misunderstood
Eleventh Amendment, 169 U. Penn. L. Rev. 609, 625 (2021);
Nelson, Sovereign Immunity as a Doctrine of Personal
Jurisdiction, 115 Harv. L. Rev. 1559, 1574–79 (2002). After
we decided Sealed Case, the Supreme Court made clear that
Eleventh Amendment immunity is a threshold jurisdictional
issue for purposes of Steel Co., see Vt. Agency, 529 U.S. at
778–80, even though states can waive it. Likewise, the Court
has held that personal jurisdiction, though waivable, ranks as
jurisdictional under Steel Co. Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583–84 (1999). Later, the Court confirmed

1
Judge Randolph dismisses Meyer as unreasoned dicta. Post
at 6. But the Supreme Court made clear what it meant: “Sovereign
immunity is jurisdictional in nature,” and, “[t]herefore, we must first
decide” it. Meyer, 510 U.S. at 475. The Court proceeded to resolve
a sovereign-immunity question against the government, only then to
rule for the government on the merits, id. at 475–83—precisely our
disposition in this case.
 6
the corollary proposition that a federal court “may not rule on
the merits of a case without first determining that it has” both
“subject-matter” and “personal jurisdiction.” Sinochem Int’l
Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430–31
(2007). After these intervening decisions, it is no longer
possible to maintain that courts may skip over federal
sovereign immunity simply because Congress can waive it.2

2
The law of other circuits tugs in different directions. At least
five other circuits have treated federal sovereign immunity as a
threshold jurisdictional issue. See Montilla v. Fed. Nat’l Mortg.
Ass’n, 999 F.3d 751, 758 (1st Cir. 2021) (sovereign immunity is “a
threshold jurisdictional question”); Tobar v. United States, 639 F.3d
1191, 1195 (9th Cir. 2011) (sovereign immunity “can be raised at
any time by the government, as it goes to a court’s jurisdiction”);
Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005) (“Because a
finding of sovereign immunity would deprive this court of subject
matter jurisdiction, we address that question first ….”); Harmon
Indus., Inc. v. Browner, 191 F.3d 894, 903 (8th Cir. 1999)
(“Sovereign immunity … is a jurisdictional threshold matter and it is
well-established that questions of subject matter jurisdiction can be
raised for the first time on appeal.”); Antol v. Perry, 82 F.3d 1291,
1297 (3d Cir. 1996) (“the district court first should have considered
whether Congress unequivocally expressed a waiver of sovereign
immunity” because it “is jurisdictional in nature” (cleaned up)).
Judge Randolph highlights circuit decisions coming out the opposite
way, see post at 5 n.7 & 12–17, though he overstates the extent of
support for his view by including in his addendum cases decided
before Steel Co., cases skipping over sovereign immunity without
addressing the sequencing question, cases skipping over sovereign
immunity to decide another jurisdictional question, and unpublished
decisions. The fairest summary of all the caselaw appears in one of
the decisions that he cites: “We have not spoken with one voice on
whether we must, or whether we may, resolve a sovereign-immunity
defense before addressing the merits.” Nair v. Oakland Cty. Comm.
Mental Health Auth., 443 F.3d 469, 474 (6th Cir. 2006).
 7
III
More broadly, Judge Randolph contends that Steel Co.
imposes no sequencing rule for any question of statutory as
opposed to constitutional jurisdiction. Post at 1–4. But Steel
Co. says the opposite, as does most of our precedent.
A
As a conceptual matter, it makes little sense, in
distinguishing between jurisdiction and the merits, to
differentiate constitutional and statutory jurisdiction. Article
III imposes two limitations on the jurisdiction of the federal
courts. First, “[t]he judicial Power of the United States”
extends only to the Supreme Court and “such inferior Courts as
the Congress may from time to time ordain and establish.” U.S.
Const. Art. III, § 1. It is hornbook law that Congress’s power
to establish inferior courts includes the power to “define their
respective jurisdictions.” Sheldon v. Sill, 49 U.S. (8 How.) 441,
448 (1850). Second, “[t]he judicial Power” extends only to
certain “Cases” and “Controversies.” U.S. Const. Art. III, § 2.
Both limitations arise from the same, explicitly jurisdictional
reference to the federal “judicial Power.” And nothing in
Article III suggests that the jurisdictional rules established
under section 1 are of lesser kind than those created by section
2. Because Article III itself does not impose a hierarchy of
jurisdictional issues, we should not either. See Kaplan v. Cent.
Bank of the Islamic Repub. of Iran, 896 F.3d 501, 517 (D.C.
Cir. 2018) (Edwards, J., concurring) (“The distinction between
statutory limitations on subject-matter jurisdiction and other
Article III jurisdictional limitations is tenuous, as both
limitations arise from Article III.”).
Nor did Steel Co. draw that distinction. Although the
jurisdictional question presented there involved the case-or-
controversy requirement of Article III, the Court’s reasoning
was not so limited. In holding that federal courts must decide
 8
jurisdictional issues before merits ones, Steel Co. described
jurisdictional issues as ones involving “power to declare the
law” or “the nature and limits of the judicial power of the
United States.” 523 U.S. at 94–95 (quoting Ex parte
McCardle, 74 U.S. (7 Wall.) at 514, and Mansfield, 111 U.S.
at 382). On that understanding, it makes no difference whether
the resolution of a jurisdictional issue depends on Article III or
a federal statute. Moreover, the canonical cases cited in Steel
Co. for the proposition that jurisdictional issues must be
decided first presented only questions of statutory jurisdiction:
Ex parte McCardle involved a statute that stripped away
jurisdiction otherwise provided by Article III, see 74 U.S. (7
Wall.) at 512–13, and Mansfield involved the statutory
requirement of complete diversity of citizenship, see 111 U.S.
at 380–82.3 Finally, in summing up its holding, Steel Co.
referenced both statutory and constitutional jurisdiction: “The
statutory and (especially) constitutional elements of
jurisdiction are an essential ingredient of separation and
equilibration of powers, restraining the courts from acting at
certain times, and even restraining them from acting
permanently regarding certain subjects.” 523 U.S. at 101.
This Court repeatedly has held that, under Steel Co., we
“must” decide questions of statutory jurisdiction before the
merits. In re Sealed Case, 449 F.3d 118, 121 (D.C. Cir. 2006).
We have done so in cases involving statutory jurisdiction over
a sentencing appeal, id.; statutory jurisdiction under the Tucker
Act, Rochon, 438 F.3d at 1214 (“We begin, as we must, with
the issue of jurisdiction.”); statutory jurisdiction under the
Hobbs Act, Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251,

3
The parties in Mansfield were minimally but not completely
diverse, see 111 U.S. at 380–82, and the requirement of complete
diversity arises by statute, see Strawbridge v. Curtiss, 7 U.S. (3
Cranch) 267, 267 (1806).
 9
1264 (D.C. Cir. 2004) (“Before addressing the merits … we
must consider two jurisdictional issues.”); habeas jurisdiction
under 28 U.S.C. § 2253, Madley v. U.S. Parole Comm’n, 278
F.3d 1306, 1308 (D.C. Cir. 2002) (“As the question affects our
power to consider this appeal, we must consider it before the
merits.” (cleaned up)); and finality under 28 U.S.C. § 1291,
Doe v. Exxon Mobil Corp., 473 F.3d 345, 348 (D.C. Cir. 2007)
(“Before we can consider the merits of Exxon’s political
question arguments, we must determine whether we have
jurisdiction.”); Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880
(D.C. Cir. 2000) (“Because this court may not proceed without
appellate jurisdiction, we must address the motion to dismiss
before considering the arguments on the merits.”). Similarly,
in Coalition for Fair Lumber Imports v. United States, 471 F.3d
1329 (D.C. Cir. 2006), we held that “statutory jurisdiction” is
a “jurisdictional” issue under Steel Co., which permitted us to
decide it without reaching another jurisdictional question about
Article III mootness. Id. at 1332–33.
B
Again, we confront conflicting precedents. In the
decisions discussed above, we held that we must decide
questions of statutory jurisdiction before the merits. On the
other hand, Kramer v. Gates, 481 F.3d 788 (D.C. Cir. 2007),
held that the “absolute priority” rule of Steel Co. governs only
“issues related to Article III jurisdiction” and does not prohibit
“addressing the merits where doing so [makes] it possible to
avoid a doubtful issue of statutory jurisdiction.” Id. at 791.
Since then, we have twice applied Kramer without further
analysis. Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1246 (D.C.
Cir. 2020) (“The law of our circuit allows a court to assume
hypothetical statutory jurisdiction even if we cannot assume
Article III jurisdiction.”); Chalabi v. Hashemite Kingdom of
Jordan, 543 F.3d 725, 728 (D.C. Cir. 2008) (“Steel Co. requires
 10
that we prioritize the jurisdictional issue only when the
existence of Article III jurisdiction is in doubt”).
To harmonize these competing case lines, I would again
return to Meyer, which specifically held that federal courts
“must first decide” federal sovereign immunity before reaching
the merits. 510 U.S. at 475. Whatever rule might govern
statutory-jurisdiction questions besides those bearing on
federal sovereign immunity, no circuit decision could abrogate
the Supreme Court’s specific holding on that point. Moreover,
earlier circuit decisions control over later ones, and at least six
pre-Kramer decisions squarely require federal courts to resolve
questions of statutory jurisdiction before the merits. Finally, as
explained below, subsequent Supreme Court decisions have
eviscerated Kramer.
Kramer relied on the second footnote of Steel Co., which
stated that sometimes “a merits question can be given priority
over a statutory standing question.” 523 U.S. at 97 n.2.
Kramer equated the phrase “statutory standing” with “statutory
jurisdiction,” then made the sweeping conclusion that courts
may decide the merits before any question of statutory
jurisdiction. 481 F.3d at 791. But after Kramer was decided,
the Supreme Court clarified that the term “statutory standing”
means the traditional zone-of-interests requirement, which asks
“whether a legislatively conferred cause of action encompasses
a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127 (2014) (citing
Steel Co., 523 U.S. at 97 n.2). Lexmark further noted that the
term “statutory standing” is misleading, “since the absence of
a valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.e., the court’s statutory
or constitutional power to adjudicate the case.” Id. at 128 n.4
(cleaned up). So in concluding that a court may decide the
“merits” question “whether any plaintiff has a cause of action
under the statute” at issue before deciding the so-called
 11
“statutory standing” question “whether this plaintiff has a cause
of action,” Steel Co., 523 U.S. at 97 n.2, the Supreme Court
was simply allowing one merits question to be decided before
another.4 After Lexmark, there is no basis for reading the
footnoted reference to “statutory standing” as encompassing all
questions of statutory jurisdiction.5
Sinochem further undercuts Kramer. That case reiterated
the holding of Ruhrgas that federal courts may decide
questions of personal jurisdiction before questions of subject-

4
That is exactly what happened in National Railroad
Passenger Corp. v. National Association of Railroad Passengers,
414 U.S. 453 (1974), where the Court decided the merits question
“whether a statutory cause of action existed” before considering the
“statutory standing” question whether the plaintiff came within its
“zone of interests.” See Steel Co., 523 U.S. at 97 & n.2 (discussing
National Railroad).
5
In clarifying that “statutory standing,” “prudential standing,”
and “cause of action” are all merits questions, Lexmark highlights
another question noted in footnote 2 of Steel Co.: how can “statutory
standing” questions (about the merits) ever “be given priority over
an Article III question”? 523 U.S. at 97 n.2. Vermont answers that
question. There, the Court held that the merits question whether a
statutory cause of action runs against the states may be decided
before the “jurisdictional” question whether the Eleventh
Amendment would bar the claim. See 529 U.S. at 779–80. The
Court explained that only “[t]he combination of logical priority and
virtual coincidence of scope makes it possible,” as between these two
questions, “to decide the statutory issue first.” Id. Logical priority,
because the question whether a statute purports to authorize some
claim against a state is analytically prior to the question whether the
Eleventh Amendment would prohibit it. And virtual coincidence,
because deciding the statutory merits question would not “expand the
Court’s power beyond the limits that the jurisdictional restriction has
imposed.” Id. at 779. This reasoning does not suggest that any
question of statutory jurisdiction may be decided first.
 12
matter jurisdiction. 549 U.S. at 430–31. In Ruhrgas, the only
disputed question of subject-matter jurisdiction was one
involving “the complete diversity required by 28 U.S.C.
§ 1332, but not Article III.” 526 U.S. at 584 (cleaned up). Yet
in Sinochem, the Court treated that statutory question as one
that, like personal jurisdiction, must be decided before the
merits. 549 U.S. at 431. For these reasons, I agree with Judge
Edwards that Lexmark and Sinochem have substantially
undercut the Kramer line of cases. See Kaplan, 896 F.3d at
520 (Edwards, J., concurring) (“At an appropriate opportunity,
the court should consider whether, in light of Sinochem and
Lexmark, the Kramer/Chalabi distinction between statutory
and Article III jurisdictional issues can be sustained.”).6
IV
Finally, Judge Randolph opines on the history of sovereign
immunity. In his view, because the existence of immunity was
an open question at the Founding, and because the Supreme
Court decided merits questions before sovereign-immunity

6
The other precedents that Judge Randolph cites are inapposite.
Post at 3 & n.4. Thomas v. Network Solutions, Inc., 176 F.3d 500
(D.C. Cir. 1999), skipped over the question whether a government
contractor should receive antitrust immunity, not sovereign
immunity. Id. at 507–10. Sherrod v. Breitbart, 720 F.3d 932 (D.C.
Cir. 2013), assumed appellate jurisdiction under Norton v. Matthews,
427 U.S. 524 (1976), which did the same only because its “merits
question was decided in a companion case,” Steel Co., 523 U.S. at
98 (describing Norton, 427 U.S. at 530–31). Lin v. United States,
690 F. App’x 7 (D.C. Cir. 2017), is unpublished. And United States
ex rel. Long v. SCS Business & Technical Institute, 173 F.3d 890
(D.C. Cir. 1999), anticipated Vermont in holding that courts may
decide whether a statutory cause of action runs against states before
deciding whether the Eleventh Amendment would bar the cause of
action if it did. See id. at 893–98. As shown above in note 5, that is
entirely consistent with my take on Steel Co.
 13
questions through the twentieth century, we should not read
Meyer to curtail that longstanding discretion. Post at 6–11.
But even putting aside that Meyer says what it says, Judge
Randolph gets the history wrong. Far from inventing a novel
rule, Meyer applied an understanding of sovereign immunity
that predates the Founding.
A

“[T]he doctrine that a sovereign could not be sued without
its consent was universal in the States when the Constitution
was drafted and ratified.” Alden, 527 U.S. at 715–16. In the
Founders’ view, it derived from both the common law and the
law of nations. Franchise Tax Bd., 139 S. Ct. at 1493. Under
the common law, “no suit or action [could] be brought against
the king, even in civil matters, because no court [could] have
jurisdiction over him.” 1 W. Blackstone, Commentaries *235;
see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 437–46
(1793) (Iredell, J., dissenting) (collecting English authorities);
1 F. Pollock & F. Maitland, History of English Law 518 (2d ed.
1898) (the king “cannot be compelled to answer in his own
court”). And under the law of nations, the sovereign was
“exempt[] ... from all [foreign] jurisdiction.” 4 E. de Vattel,
The Law of Nations 486 (J. Chitty ed. 1835).7

7
Judge Randolph protests that English subjects could obtain
relief against the Crown. Post at 7. But as Blackstone explains, this
relief depended on the Crown’s consent, “not upon compulsion,” 1
Blackstone, supra, at *236, which is consistent with how Alden
described the “universal” doctrine of sovereign immunity, see 527
U.S. at 715–16. Judge Randolph identifies the specific procedures
of traverse and monstrans de droit, which allowed subjects to avoid
certain “delays incident to a petition of right.” 9 W. Holdsworth, A
History of English Law 25–26 (3d ed. 1944). Both are consistent
with sovereign immunity: for one thing, they were procedures
enacted by statute, indicating at most a waiver of sovereign
 14
During the ratification debates, leading Federalists were
adamant that the Constitution did not abrogate this settled
background rule. Alexander Hamilton wrote in The Federalist
that it “is inherent in the nature of sovereignty not to be
amenable to the suit of an individual without its consent.” The
Federalist No. 81. James Madison affirmed in the Virginia
ratifying convention that it was “not in the power of individuals
to call any state into court.” 3 Debates on the Federal
Constitution 533 (J. Elliot ed., 2d ed. 1854). And John
Marshall, speaking soon after Madison, concurred that it was
“not rational to suppose that the sovereign power should be
dragged before a court.” Id. at 555. Leading Anti-Federalists
agreed that sovereigns were not properly “subject[] . . . to
answer in a court of law, to the suit of an individual.” See, e.g.,
Brutus No. 13 (Feb. 21, 1788), in 4 The Founders’ Constitution
238 (P. Kurland & R. Lerner eds. 1987).
The reaction to Chisholm v. Georgia, 2 U.S. (2 Dall.) 419
(1793), reflected this consensus. When four Justices read
Article III to allow a citizen of South Carolina to sue the State
of Georgia without its consent, the decision “fell upon the
country with a profound shock.” 1 C. Warren, The Supreme
Court in United States History 96 (rev. ed. 1926). In little more
than two months, Congress approved the Eleventh Amendment
with near unanimity in both Houses. See Alden, 527 U.S. at
721. Within two years, the states ratified it and thereby
“overruled the Court.” Id. at 723. In doing so, they “acted not
to change but to restore the original constitutional design.” Id.
at 722; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
69 (1996) (Chisolm “was contrary to the well-understood
meaning of the Constitution”).

immunity; for another, relief under them still required sending a case
“before the king to make a final discussion.” See id.
 15
While most Founding-era discussions of sovereign
immunity addressed the states, the immunity of the United
States was understood even more clearly. As Alden explained,
“the sovereign’s right to assert immunity from suit in its own
courts was a principle so well established that no one conceived
it would be altered by the new Constitution.” 527 U.S. at 741.
The United States fell squarely within this background rule, as
it was supreme over the states within its sphere of operation,
U.S. Const. Art. VI, cl. 2. Thus, even justices in the Chisholm
majority recognized that Article III preserved federal sovereign
immunity. Chisholm, 2 U.S. (2 Dall.) at 469 (Cushing, J.)
(expressing “doubt” that the “United States may be sued by a
citizen of any of the States”); id. at 478 (Jay, C.J.) (raising an
“important difference” between suits against states and suits
against the United States). For these reasons, Chief Justice
Marshall could describe the rule that “no suit can be
commenced or prosecuted against the United States” as
“universally received opinion.” Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 411–12 (1821).
B

The Framers also regarded sovereign immunity as
jurisdictional. Then as now, a justiciable case required adverse
“parties to come into court, who can be reached by its process,
and bound by its power.” 10 Annals of Cong. 606 (1800)
(remarks of then-Representative John Marshall); see also
Borden v. Fitch, 15 Johns. 121, 141 (N.Y. Sup. Ct. 1818) (“To
give any binding effect to a judgment, it is essential that the
Court should have jurisdiction of the person.”). Immunity
enabled a defendant sovereign to frustrate this requirement—
Madison and Marshall asserted that no party could “call” or
“drag[]” a sovereign into court. 3 Debates, supra, at 533, 555.
Blackstone described sovereign immunity as a bar to
“jurisdiction,” which “implies superiority of power.” 1
Blackstone, supra, at *235. And Hamilton acknowledged that
 16
a sovereign could be sued “with[] its consent.” The Federalist
No. 81. From the beginning, sovereign immunity thus
concerned the power to hale a particular party into court, or
what we now call personal jurisdiction. See PennEast Pipeline
Co., LLC v. New Jersey, 141 S. Ct. 2244, 2264 (2021)
(Gorsuch, J., dissenting) (“Structural [sovereign] immunity
sounds in personal jurisdiction ….”); Nelson, supra, at 1565–
66 & n.23; Baude & Sachs, supra, at 625.
This understanding fills the United States Reports. In
United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834), Chief
Justice Marshall remarked that a court “cannot exercise
jurisdiction over” a suit against the United States unless it falls
“within the authority of some act of [C]ongress.” Id. at 444.
And in later cases, the Court regularly described the
government’s consent to be sued as a prerequisite to
jurisdiction. See, e.g., United States v. U.S. Fid. & Guar. Co.,
309 U.S. 506, 514 (1940) (“Consent alone gives jurisdiction to
adjudge against a sovereign. Absent that consent, the
attempted exercise of judicial power is void.”); Haycraft v.
United States, 89 U.S. 81, 92 (1874) (“To our minds the
question is one of jurisdiction. A sovereign cannot be sued in
his own courts except with his consent.”); United States v.
McLemore, 45 U.S. (4 How.) 286, 288 (1846) (“There was no
jurisdiction of this case in the Circuit Court, as the government
is not liable to be sued, except with its own consent.”).
Meyer reasoned from this foundation. As Steel Co.
recounted, a “long and venerable line of our cases” had held
that courts must confirm their own jurisdiction before resolving
the merits of a case. 523 U.S. at 94–95. And in Meyer itself,
the Court held that federal sovereign immunity was
“jurisdictional” because the “terms of the United States’
consent to be sued in any court define that court’s jurisdiction,”
and because “the United States may not be sued without its
consent.” 510 U.S. at 475 (quoting Sherwood, 312 U.S. at 586,
 17
and Mitchell, 463 U.S. at 212 (cleaned up)). This reasoning
followed Hamilton, Madison, and Marshall in viewing
sovereign immunity as effectively a rule of personal
jurisdiction. Meyer thus combined two legal principles that
date back to the Founding—first, that federal courts must begin
with their own jurisdiction and, second, that sovereign
immunity is jurisdictional—to conclude that federal courts
must begin with sovereign immunity. The brevity of the
Court’s opinion reflects not its novelty, but its bedrock nature.8
C

Judge Randolph identifies some early cases that decided
the merits before sovereign immunity. Post at 10–11. But his
nineteenth-century cases involved ejectment actions brought
against federal officials. United States v. Lee, 106 U.S. (16
Otto) 196, 196–97 (1882) (“the United States was not a party”);
Grisar v. McDowell, 73 U.S. (6 Wall.) 363, 369–70 (1868);
Brown v. Huger, 62 U.S. (21 How.) 305, 308–09 (1858);

8
The resemblance between sovereign immunity and personal
jurisdiction is admittedly imperfect. But to the degree that sovereign
immunity is unlike personal jurisdiction, it is instead like subject-
matter jurisdiction. See Schacht, 524 U.S. at 394–95 (Kennedy, J.,
concurring). For instance, the Eleventh Amendment concerns the
“Judicial power,” U.S. Const. amend. XI, which suggests a limit of
subject-matter jurisdiction. Similarly, the Supreme Court has held
that sovereign immunity may be asserted for the first time on appeal,
Edelman v. Jordan, 415 U.S. 651, 678 (1974)—a rule that generally
applies to questions of subject-matter jurisdiction, Capron v. Van
Noorden, 6 U.S. (2 Cranch) 126, 127 (1804), but not personal
jurisdiction, Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702–04 (1982). This resemblance between sovereign
immunity and subject-matter jurisdiction does not affect the ordering
question before us, for courts must decide both personal and subject-
matter jurisdiction before the merits. See Sinochem, 549 U.S. at 430–
31.
 18
Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 509 (1839). As the
Court later explained, these cases stand only for the proposition
that federal officials may be “sued individually as trespassers.”
Belknap v. Schild, 161 U.S. 10, 19 (1896). Moreover, only one
of the cases even mentioned sovereign immunity, and it did so
without considering whether the immunity was jurisdictional,
much less whether anything turned on that question. See Lee,
106 U.S. (16 Otto) at 204–23. Judge Randolph does identify
two twentieth-century cases where the Supreme Court resolved
the merits while reserving a question of sovereign immunity.
United States v. Mitchell, 445 U.S. 535, 546 & n.7 (1980);
Rabinowitz v. Kennedy, 376 U.S. 605, 607 (1964). But neither
decision offered any reasoning for doing so. On the question
of sequencing, these two decisions thus qualify as “drive-by
jurisdictional rulings” entitled to “no precedential effect.”
Steel Co., 523 U.S. at 91. Likewise, they establish no practice
long or settled enough to have interpretive significance. And
their utter silence on the sequencing question certainly does not
trump the Supreme Court’s later, reasoned holding on that very
point in Meyer.9
Judge Randolph also argues that English common-law
courts did not apply any ordering rule regarding sovereign

9
Judge Randolph mentions two inapposite decisions. In United
States ex rel. Goldberg v. Daniels, 231 U.S. 218 (1913), the Supreme
Court ruled for the government on sovereign immunity, which it
described as “earlier in point of logic” than the merits. Id. at 221–
22. Califano v. Boles, 443 U.S. 282 (1979), involved a denial of
benefits under the Social Security Act, an action that fell comfortably
within both the judicial-review provision in 28 U.S.C. § 405(g) and
the waiver of sovereign immunity for claims “seeking relief other
than money damages” in 5 U.S.C. § 702. The unaddressed immunity
question concerned not whether the Court could reach the merits, but
only a dispute about the available remedy if the claimant had
prevailed on the merits. See 443 U.S. at 296–97.
 19
immunity. Post at 7–8. But the requirement that federal courts
begin with their jurisdiction stems from the plain text of the
Constitution, which specifically limits the federal “judicial
Power” to certain courts, U.S. Const. Art. III, § 1, and certain
cases or controversies, id. § 2. English law, which lacked a
written constitution and allowed common-law courts to
“regulate[]” their own jurisdiction, see Ex parte Bollman, 8
U.S. (4 Cranch) 75, 93 (1807), had no cause for a comparable
sequencing rule. And none of the Supreme Court’s sequencing
decisions, including its comprehensive opinion in Steel Co.,
even considered English law. So it is hard to see how a
decision from the Exchequer Chamber, which did not address
sequencing at all, could trump the express holding of Meyer
and two hundred years of American law that support it.
V
Finally, a word about prudence. Judge Randolph thinks
that because the merits questions in this case are
straightforward, it would be sensible to skip over the circuit-
splitting question whether FCRA waives federal sovereign
immunity. Post at 1. But the anterior sequencing question—
whether we must decide the sovereign-immunity question
first—is itself more complex than the sovereign-immunity
question, as my back-and-forth with Judge Randolph makes
clear. Moreover, as shown above, the sequencing question
implicates two distinct conflicts within our own precedent, as
well as deep inter-circuit confusion over whether sovereign
immunity is jurisdictional. So regardless of whether I am right
about Steel Co. and Meyer, the Court sensibly avoids that
question by resolving sovereign immunity first. For while
reasonable jurists may debate whether we must decide
sovereign immunity first, all agree that we may do so.
RANDOLPH, Senior Circuit Judge, concurring in part and
concurring in the judgment,

My colleagues conclude first that the governing statute
waives the sovereign immunity of the Federal Motor Carrier
Safety Administration. Then they tell us that the statute waiving
sovereign immunity does not apply to this federal agency — and
so the plaintiffs lose.

One may wonder how it can be that a statute waives the
sovereign immunity of a federal agency when the statute does
not even apply to the agency? This is a puzzle about which I
express no opinion. As I see it, the court should not have
exercised its discretion to decide the question of sovereign
immunity first. There is a circuit split on whether this federal
agency has immunity1 and, given the panel’s conclusion that the
plaintiffs have no cause of action — with which I agree — I
think it was improper to take a position on that question.

I.

The major premise of Judge Katsas’s concurring opinion is
that a federal court must always satisfy itself that it has
statutory jurisdiction before it may reach the merits. The rest of
his concurring opinion is devoted to demonstrating that
sovereign immunity is a matter of jurisdiction.

As I see it, his premise is wrong and so the rest of his
concurring opinion does not matter. Even if sovereign immunity
is jurisdictional (it is not),2 Supreme Court decisions and

1
Compare Bormes v. United States, 759 F.3d 793 (7th Cir. 2014),
with Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir. 2018), and
Robinson v. U.S. Dep’t of Educ., 917 F.3d 799 (4th Cir. 2019).
2
It “overstates the strength” of immunity to “analogize it to a lack
of jurisdiction,” as Judge Easterbrook aptly explained in United
 2

decisions of this court hold in the clearest possible terms that
there is no rigid rule requiring a federal court to decide statutory
jurisdiction (as distinguished from Article III jurisdiction) before
getting to the merits.

Consider National Railroad Passenger Corp. v. National
Association of Railroad Passengers, 414 U.S. 453 (1974). The
Court first decided that the plaintiffs did not have a cause of
action. Only then did the Court explain: “Since we hold that no
right of action exists, questions of [statutory] standing and
jurisdiction became immaterial.” 414 U.S. at 465 n.13 (italics
added). The Court thus made clear that a merits question can be
decided before a statutory jurisdiction question. Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 96-97 & n. 2
(1998), while holding that “a merits question cannot be given
priority over an Article III question,” reaffirmed National
Railroad.3 In dissent, Justice Stevens relied on National

States v. County of Cook, 167 F.3d 381, 388 (7th Cir. 1999). After all,
federal sovereign immunity concerns “not the competence of the court
to render a binding judgment, but the propriety of interpreting a given
statute to allow particular relief.” Id. at 389. And the Supreme Court
has clarified that rules “should not be referred to as jurisdictional”
unless they govern a court’s “subject-matter or personal jurisdiction.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
“Other rules, even if important and mandatory . . . should not be given
the jurisdictional brand.” Id.
3
As Justice Breyer put it in his Steel Co. concurring opinion,
“[t]his Court has previously made clear that courts may ‘reserv[e]
difficult questions of . . . jurisdiction when the case alternatively could
be resolved on the merits in favor of the same party.’ Norton v.
Mathews, 427 U.S. 524, 532 (1976). That rule makes theoretical sense
[and] enormous practical sense.” 523 U.S. at 111 (Breyer, J.,
concurring).
 3

Railroad and argued — as does Judge Katsas in his concurring
opinion here — that it was not logical to treat statutory questions
of jurisdiction differently than Article III case-or-controversy
questions. 523 U.S. at 120 & n. 12. The Court rejected Justice
Stevens’ argument. Id. at 97 n. 2.

Judge Katsas draws an analogy to the Supreme Court’s
“treatment of state sovereign immunity.” Ante, at 3. But the
analogy refutes his position. A few years after Steel Co. the
Court acknowledged with approval that it had “routinely
addressed before the question whether the Eleventh Amendment
forbids a particular statutory cause of action to be asserted
against States, the question whether the statute itself permits the
cause of action it creates to be asserted against States (which it
can do only by clearly expressing such an intent).” Vermont
Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S.
765, 779 (2000). It is worth noting that Justice Scalia, the
author of the Court’s Steel Co. opinion, also wrote the Court’s
opinion in Vermont Agency.

Our court therefore has determined that Steel Co. is limited
to Article III jurisdiction and that the Supreme Court “explicitly
recognized the propriety of addressing the merits where doing
so made it possible to avoid a doubtful issue of statutory
jurisdiction.” Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir.
2007) (Williams, J.). We reached the same conclusion about
Steel Co. in Sherrod v. Breitbart, 720 F.3d 932, 399–400 (D.C.
Cir. 2013).4 Speaking for the court in a later case, Chief Judge
Srinivasan thus stated: “The law of our circuit allows a court to

4
See also Lin v. United States, 690 F. App’x 7, 9 (D.C. Cir.
2017); Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 728
(D.C. Cir. 2008); Thomas v. Network Sols., Inc., 176 F.3d 500 (D.C.
Cir. 1999); U.S. ex rel. Long v. SCS Bus. & Tech. Sols., 173 F.3d 890,
895–98 (D.C. Cir. 1999).
 4

assume hypothetical statutory jurisdiction even if we cannot
assume Article III jurisdiction.” Am. Hosp. Ass’n v. Azar, 964
F.3d 1230, 1246 (D.C. Cir. 2020).5 These decisions are flatly
contrary to Judge Katsas’s argument. Despite his attempt to
soften their impact, no panel has overruled Kramer or Sherrod,
nor could it. See LaShawn A. v. Barry, 87 F.3d 1389, 1395
(D.C. Cir. 1996) (en banc).

II.

This brings me to the final nail in my colleague’s
concurring opinion. As we have held and as the Supreme Court
itself has recognized, Steel Co.’s priority-of-decision rule is
limited to Article III jurisdiction.6 Judge Katsas’s argument that
we must decide sovereign immunity before reaching the merits
can be correct if and only if sovereign immunity is a matter of
Article III jurisdiction. It clearly is not and the concurring
opinion does not even attempt to show otherwise.

After the Supreme Court decided Steel Co., our court was
“uncertain” whether it covered federal sovereign immunity. E.
Bay Mun. Utility Dist. v. U.S. Dep’t of Com., 142 F.3d 479, 482
(D.C. Cir. 1998). In re Sealed Case No. 99-3091, 192 F.3d 995
(D.C. Cir. 1999), settled the matter as far as our circuit law is
concerned. Our court’s ruling was clear and concise: “Given the

5
This is also the law of other circuits. See United States v.
Woods, 210 F.3d 70, 74 (1st Cir. 2000); Butcher v. Wendt, 975 F.3d
236, 244 (2d Cir. 2020); Bowers v. Nat’l Collegiate Athletic Ass’n,
346 F.3d 402, 415 (3d Cir. 2003); Montague v. NLRB, 698 F.3d 307,
313 (6th Cir. 2012); Lukowski v. INS, 279 F.3d 644, 647 n. 1 (8th Cir.
2002); Minesen v. McHugh, 671 F.3d 1332, 1337 (Fed. Cir. 2012).
6
Even with respect to Article III jurisdiction there are exceptions,
as the court explained in Emory v. United Air Lines, Inc., 720 F.3d
915, 920 (D.C. Cir. 2013).
 5

‘quasi-jurisdictional or ‘hybrid’ status . . . of federal sovereign
immunity, we are not required to decide that issue before the
merits.” Id. at 1000–01.7

And that tallies with the Supreme Court’s repeated refusal
to “mandate” an “order of decision that the lower courts must
follow.” Pearson, 555 U.S. at 241. Take qualified immunity,
which “springs from the same root considerations that generated
the doctrine of sovereign immunity.” Scheuer v. Rhodes, 416
U.S. 232, 239 (1974). In that context, the Court has recognized
that a “rigid” ordering rule risks “bad decisionmaking” and a
“substantial expenditure of scarce judicial resources on difficult
questions that have no effect on the outcome of the case.”

7
Judge Katsas says that “five other circuits” — the First, Second,
Third, Eighth, and Ninth — treat federal sovereign immunity as a
“threshold jurisdictional issue.” Ante, at 6 n.2. That would be news
to them. See, e.g., Conboy v. U.S. Small Bus. Admin., 992 F.3d 153,
157 (3d Cir. 2021) (deciding the merits and explaining that “we need
not resolve” federal sovereign immunity); Zarcon, Inc. v. NLRB, 578
F.3d 892, 896 n.3 (8th Cir. 2009) (finding it “unnecessary . . . to
address” federal sovereign immunity in light of merits ruling); United
States v. Manning, 527 F.3d 828, 837 n.8 (9th Cir. 2008) (“Because
the [statute] is invalid under the Supremacy Clause . . . we do not
reach the issue of sovereign immunity[.]”); Montijo-Reyes v. United
States, 436 F.3d 19, 23 (1st Cir. 2006) (“We do not need to decide”
the sovereign-immunity issue. “Instead, we decide the case on the
independent ground that there is an insufficient causal link between
the alleged failure to comply . . . and the alleged harm.”); Smith v.
Lehman, 689 F.2d 342, 345 (2d Cir. 1982) (“This difficult sovereign
immunity question need not be decided, however, because Smith’s
constitutional claims cannot succeed on the merits.”).

In fact, every circuit — First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth, Eleventh, and Federal — agrees with
our court that it may exercise its discretion to bypass federal sovereign
immunity and reach the merits. See the Addendum to this opinion.
 6

III.

Against all this, Judge Katsas offers a single line from
FDIC v. Meyer, 510 U.S. 471, 475 (1994): “Sovereign immunity
is jurisdictional in nature[,]” so “we must first decide whether
[the Federal Savings and Loan Insurance Corporation’s]
immunity has been waived.”8 In his view, this “holding” created
a mandatory order of operations akin to that in Steel Co. Ante,
at 9, 15–16.

The analogy to Steel Co. is telling — just not in the way
Judge Katsas intends. In Steel Co., the Court’s thumbs-down to
bypassing Article III questions spanned more than a dozen pages
in the United States Reports and drew support from the text and
structure of Article III, the “common understanding of what it
takes to make a justiciable case,” and a “long and venerable
line” of precedent stretching back to 1804. Steel Co., 523 U.S.
at 94, 102. Compare that to Meyer. On Judge Katsas’s reading,
Meyer broke from centuries of common-law practice (without
a whiff of historical analysis), announced a new constitutional
rule (without citing the Constitution), and overruled stacks of
Supreme Court cases (without a word on stare decisis) — all in
a five-sentence umbrella paragraph.

A.

Judge Katsas begins his historical account of the common
law in 1765, when Blackstone wrote that English subjects could

8
“[T]he Supreme Court has warned against ‘dissect[ing] the
sentences of the United States Reports as though they were the United
States Code.’” Kalka v. Hawk, 215 F.3d 90, 95 (D.C. Cir. 2000)
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
“So perhaps the statement about what the [Court] ‘must’ do describes
only what [it] ordinarily should do.” Id.
 7

not sue the crown as they would an ordinary defendant.9 But
that is only half the story. In the thirteenth century, Bracton
observed that “it was the king’s duty to redress wrongs done by
himself or on his behalf[.]” Ludwik Erlich, Proceedings Against
the Crown (1216 – 1377) 43, in 6 Oxford Studies in Social and
Legal History (Paul Vinograff, ed. 1921). So from Edward I on,
“the king himself [wa]s sued in the respectful form of a petition,
and he never fail[ed] to comply with the judgment of his court.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)
(Marshall, C.J.). And by the fourteenth century, two new
procedures — traverse and monstrans de droit — let subjects
recover property without royal consent. 9 William Holdsworth,
A History of English Law 25–26 (3d ed. 1944). The short of the
matter is this: “ordinary writs did not lie” against the king, id. at
10, but “sovereign immunity was not a bar to relief,” Louis L.
Jaffe, Suits Against Governments and Officers: Sovereign
Immunity, 77 Harv. L. Rev. 1, 1 (1963).

Judge Katsas’s sequencing rule is nowhere to be found in
the common law. Take the Bankers’ Case — the seminal
eighteenth-century precedent on sovereign immunity. The case
arose when Charles II signed a secret treaty to help Louis XIV
9
Judge Katsas also cites Vattel for the rule that sovereigns are
exempt from foreign jurisdiction. Ante, at 13. But this ignores the
distinction between “domestic” and “foreign” sovereign immunity. As
then-Professor Scalia explained, “the principles governing the
amenability of a [sovereign] to suit before its own courts” are “not at
all the same” as those “governing its amenability to suit before the
courts of another sovereign.” Antonin Scalia, Sovereign Immunity and
Nonstatutory Review of Federal Administrative Action: Some
Conclusions from the Public-lands Cases, 68 Mich. L. Rev. 867, 886
(1970). Federal sovereign immunity embodies the former; Vattel’s
rule and the Eleventh Amendment embody the latter. See id.
 8

defeat the Dutch. But wars are expensive, and Charles — “the
playboy monarch” — was broke. Ronald Hutton, Charles II 446
(1989). So in 1671, he suspended payment on his debts, leaving
London bankers in “ruin[,] . . . unable to pay their depositors.”
Holdsworth, supra, at 33. Then, after promising the bankers a
royal annuity, Charles defaulted again in 1683. Seven years
(and one Glorious Revolution) later, the bankers asked the Court
of Exchequer to “enforce payment of these arrears.” The Case
of the Bankers, in 14 A Complete Collection of State Trials 3
(T.C. Howell ed., 1812) [hereinafter Bankers’ Case].

The Bankers’ Case raised two issues. The first was a merits
question: whether the annuity was valid. The second concerned
sovereign immunity. Bypassing the usual procedures, the
bankers had sued in the Exchequer — the “court of revenue”
with “power over the king’s treasure.” 3 William Blackstone,
Commentaries on the Laws of England 428 (15th ed. 1809).
With this novel tactic came a novel question: whether the court
had “power to relieve the petitioners, and give judgment for
them.” Bankers’ Case 7.

The barons of the Exchequer addressed the issues in
precisely that order, holding for the bankers on both questions.
See id. at 6–7. And when the attorney general appealed, a
majority of the Exchequer Chamber affirmed. Consider Lord
Chief Justice Holt’s opinion. Like the barons, Holt began with
the merits, finding the annuity “good and firm in law.” Id. at 34.
Only then did he reach the sovereign-immunity question,
holding that the bankers’ suit was “very proper and legal.” After
all: the bankers “ha[d] a right; and if so, then they must have
some remedy to come at it too.” Id.; cf. Marbury, 5 U.S. at 163.
In Holt’s view, the merits issue preceded — and informed —
any discussion of power or relief. The House of Lords agreed
with the Exchequer majority. See Bankers’ Case 110.
 9

B.

Judge Katsas suggests that his position is rooted in the
Constitution. Article III, section 2 states that the “judicial Power
shall extend” to certain “Cases” and “Controversies.” It follows
that “whether there is a case or controversy” is a “threshold
matter.” Steel Co., 523 U.S. at 92, 94. Yet beyond these “large,
round, indefinite terms,” John F. Manning, Separation of
Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939,
2005 (2011), Article III dictates no rigid decisional sequence.

As to federal sovereign immunity, the Constitution says
nothing. Still less is there any hint about where it should fall in
the courts’ order of operations. That is hardly surprising, for at
the founding, “the federal government’s immunity from suit was
a question — not a settled constitutional fact.” Vicki C.
Jackson, Suing the Federal Government: Sovereignty, Immunity,
and Judicial Independence, 35 Geo. Wash. Int’l L. Rev. 521,
523 (2003).10

C.

10
The Supreme Court first recognized federal sovereign
immunity in 1821, when Chief Justice Marshall called it “[t]he
universally received opinion[.]” Cohens v. Virginia, 19 U.S. (6 Wheat)
264, 411 (1821). As then-Judge Scalia quipped: “I cannot avoid
noting . . . the profound envy that my colleague Judge Ginsburg and
I have of Justice Marshall’s ability to decide such an important issue
in four words[.]” Antonin Scalia, Historical Anomalies in
Administrative Law, Y.B.: Sup. Ct. Hist. Soc’y 1985, 103, 105 (1985).
 10

If the Constitution forbids courts from bypassing federal
sovereign immunity, that “understanding” should “fill[] the
United States Reports.” Ante, at 15. But the opposite is true.
From the nineteenth century onward, the Court often used its
discretion to reach the merits ahead — or instead — of
sovereign-immunity questions.

Take Wilcox v. Jackson, 38 U.S. 498 (1839). There, the
Court ruled on the merits for a federal officer, without even
mentioning sovereign immunity. See also, e.g., Brown v. Huger,
62 U.S. 305 (1858) (same); Grisar v. McDowell, 73 U.S. 363
(1867) (same). And in Lee v. United States, 106 U.S. 196, 199
(1882), the Court “consider[ed] first” the merits, before saying
a word about the immunity question. Tellingly, while Lee drew
a spirited dissent, not one Justice suggested that the majority’s
sequencing choice offended the Constitution.

Of course, early courts also used their discretion to dismiss
cases on sovereign-immunity grounds, without reaching the
merits. And they often couched such dismissals in jurisdictional
terms. E.g., United States v. McLemore, 45 U.S. 286, 288
(1846). Still, no one suggested that Article III mandated that
sequence — a point illustrated in U.S. ex rel. Goldberg v. Meyer,
37 App. D.C. 282 (1911), aff’d sub nom, U.S. ex rel. Goldberg
v. Daniels, 231 U.S. 218 (1913). In Goldberg, our court ruled
on the merits for the Secretary of the Navy, holding that a
federal statute did not compel him to deliver a decommissioned
cruiser to a would-be buyer. Id. at 288–89. Writing for the
Court, Justice Holmes affirmed on the alternative ground of
federal sovereign immunity. See 231 U.S. at 222. But he called
this rationale “earlier in point of logic” — not constitutional
priority — and he found “no sufficient reason for throwing
doubt” on our merits-first approach. Id. at 221 (emphasis
added). The upshot was clear. Decisional sequencing was a
matter of discretion.
 11

And that view held throughout the twentieth century.
Consider Kennedy v. Rabinowitz, 318 F.2d 181 (D.C. Cir. 1963),
aff’d, 376 U.S. 605 (1964) — a mirror image of Goldberg. In
Rabinowitz, lawyers representing Cuba sued the Secretary of
State, seeking a declaratory judgment that they were exempt
from registering as foreign agents. Calling sovereign immunity
a “threshold question,” our court ordered the case “dismissed . . .
as an unconsented suit against the United States.” Id. at 182–83.
But the Supreme Court saw things differently. In its view, the
Foreign Agents Registration Act “plainly and unquestionably
require[d] petitioners to register.” 376 U.S. at 607. The Court
thus affirmed on the merits, finding no “occasion to consider”
sovereign immunity. Id. See also, e.g., Califano v. Boles, 443
U.S. 282, 296–97 (1979) (“Because of our disposition of the
[merits] issue, we need not and do not reach” federal sovereign
immunity); United States v. Mitchell, 445 U.S. 535, 542 (1980)
(deciding the merits and explaining that the Court “need not
consider” federal sovereign immunity).

Did Meyer really discard all this precedent? Judge Katsas
thinks so, observing — quite rightly — that none of these cases
addressed the sequencing question head-on. Ante, at 17. But
that is exactly the point. If two-hundred years elapsed before
anyone supposed that the Constitution forbids courts to bypass
federal sovereign immunity, that is a good sign that Sovereign
Immunity First! is “bad wine of recent vintage.” Rotkiske v.
Klemm, 140 S. Ct. 355, 360 (2019) (quoting TRW Inc. v.
Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in
judgment)).

***

I acknowledge my colleague’s prerogative to disagree with
the precedents of the Supreme Court and of our court. Yet it
 12

seems to me incumbent on my colleague to describe how he
would replace the many precedents he disregards, precedents
that make “theoretical sense” and “enormous practical sense.”
Supra n.3.

ADDENDUM

First Circuit:

Montijo-Reyes v. United States, 436 F.3d 19, 23 (1st Cir. 2006)
(“We do not need to decide” the sovereign-immunity issue.
“Instead, we decide the case on the independent ground that
there is an insufficient causal link between the alleged failure to
comply . . . and the alleged harm.”).

Scheidegg v. Dep’t of Air Force, 915 F.2d 1558 (Table), 1990
WL 151390, at *2 (1st Cir. Sept. 28, 1990) (per curiam joined
by Breyer, J.) (“We bypass [federal sovereign immunity]
because we can readily affirm the dismissal . . . on the merits.”).

Latinos Unidos de Chelsea en Accion (Lucha) v. Sec’y of Hous.
& Urb. Dev., 799 F.2d 774, 793 & n.27 (1st Cir. 1986) (because
“there is no private right of action,” it is “unnecessary for us to
consider whether sovereign immunity stands as a bar to
plaintiffs’ suit”).

Second Circuit:

Smith v. Lehman, 689 F.2d 342, 345 (2d Cir. 1982) (“This
difficult sovereign immunity question need not be decided,
however, because Smith’s constitutional claims cannot succeed
on the merits.”).
 13

Third Circuit:

Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 157 (3d Cir.
2021) (“[A]lthough we have not explicitly addressed whether
the United States has waived sovereign immunity as to unjust
enrichment claims, we need not resolve that issue here because
Conboy and Gilsenan cited no record evidence creating a factual
dispute material to their unjust enrichment claim against the
SBA.”).

U.S. ex rel. IRS v. Norton, 717 F.2d 767, 774 (3d Cir. 1983)
(“[W]e find it unnecessary . . . to decide whether sovereign
immunity bars the imposition of a criminal contempt sanction
against the IRS” because “the IRS did not have fair warning that
its retention of funds was a per se violation of the automatic
stay.”).

Fourth Circuit:

Turner v. United States, 736 F.3d 274, 280 n.2 (4th Cir. 2013)
(“[W]e need not consider [sovereign immunity] because we find
that the [Coast Guard] did not violate the relevant standard of
care . . ..”).

Laber v. Harvey, 438 F.3d 404, 423 & n.19 (4th Cir. 2006) (en
banc) (“Title VII does not authorize a federal-sector employee
to bring a civil action [of this sort],” so “we need not address the
Army’s sovereign immunity argument.”).

Al Fayed v. United States, 210 F.3d 421, 423–25 (4th Cir. 2000)
(“[T]he district court did not abuse its discretion” in declining
“the issuance of a subpoena for highly classified government
 14

documents[.]” So “we need not reach the Government’s
[sovereign-immunity] argument[.]”).

Littell v. Morton, 445 F.2d 1207, 1210 (4th Cir. 1971) (“We
consider first if the [statute] is applicable, because if it is not,
manifestly, we need not consider the question of sovereign
immunity.”).

Fifth Circuit:

Eberle v. Gonzales, 240 F. App’x 622, 629 n.3 (5th Cir. 2007)
(“Because we conclude that Eberle either failed to exhaust his
administrative remedies or failed to establish a prima facie case
of retaliation, we need not reach Defendants’ alternative
argument that the government has not waived sovereign
immunity . . ..”).

Sixth Circuit:

Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443 F.3d 469,
477 (6th Cir. 2006) (“[U]nder any circumstances in which the
State (or the United States) declines to raise sovereign immunity
as a threshold defense, we conclude that the federal courts have
discretion to address the sovereign-immunity defense and the
merits in whichever order they prefer.”).

Local 3-689, Oil, Chem. & Atomic Int’l Union v. Martin
Marietta Energy Sys., Inc., 77 F.3d 131, 138 n.11 (6th Cir. 1996)
(“[A]s it has already been decided that the requisite statutes do
not imply private rights of action, this court need not reach
whether the Energy Act waives sovereign immunity.”).
 15

Seventh Circuit:

United States v. All Assets & Equip. of W. Side Bldg. Corp., 188
F.3d 440, 443 n.1 (7th Cir. 1999) (“Because the government did
not directly appeal this issue, we need not reach this thorny
question of sovereign immunity.”).

Merrill Tenant Council v. U.S. Dep’t of Hous. & Urb. Dev., 638
F.2d 1086,1091 n.7 (7th Cir. 1981) (“Because a penalty clause
is void in a contractual cause of action in Illinois, we do not
reach the issue of whether the waiver of sovereign immunity
extends to a penalty.”).

Eighth Circuit:

Zarcon, Inc. v. NLRB, 578 F.3d 892, 896 & n.3 (8th Cir. 2009)
(“[W]e reject Zarcon’s argument that the OPEN Government
Act should apply to this case[,]” so “it is unnecessary for us to
address the NLRB’s additional [sovereign-immunity] argument
. . ..”).

Hartman v. Lyng, 884 F.2d 1103, 1107 n.3 (8th Cir. 1989)
(“[W]e need not, and therefore do not, rule on the sovereign
immunity issue, given our conclusion that the district court did
not err in declining to award damages.”).

United Handicapped Fed’n v. Andre, 622 F.2d 342, 348 n.6 (8th
Cir. 1980) (“We find that plaintiffs were not prevailing parties
against federal defendants. Under the circumstances, we need
not pass on the question of sovereign immunity.”).
 16

Ninth Circuit:

Olsen v. U.S. ex rel. Fed. Crop Ins. Corp., 334 F. App’x 834,
835 n.1 (9th Cir. 2009) (“In light of our determination that the
district court properly vacated the awards, we need not address
whether the government waived its sovereign immunity.”).

Foti v. McHugh, 247 F. App’x 899, 901 (9th Cir. 2007)
(“Because the government’s identification policy does not
violate Appellants’ constitutional rights, we need not address
whether the district court properly dismissed . . . on the basis
of sovereign immunity.”).

Castaneda v. U.S. Dep’t of Agric., 807 F.2d 1478, 1479 n.3 (9th
Cir. 1987) (“Because we affirm the dismissal of Castaneda’s
action on the merits, we need not resolve the dispute between
the parties as to whether the doctrine of sovereign immunity bars
his action against the USDA.”).

Lehner v. United States, 685 F.2d 1187, 1190 (9th Cir. 1982)
(“declin[ing] to decide” sovereign-immunity question where
plaintiff “failed to allege facts which, if proven, would entitle
her to relief”).

Tenth Circuit:

Watson v. United States, 485 F.3d 1100, 1111 n.9 (10th Cir.
2007) (Gorsuch, J.) (“Because we affirm the district court’s
holding that the government was not negligent in its care of Mr.
Lewis, we need not pass on . . . sovereign immunity[.]”).
 17

Eleventh Circuit:

In re Gateway Radiology Consultants, P.A., 983 F.3d 1239,
1255 n.7 (11th Cir. 2020) (“Because we hold for the [U.S. Small
Business Administration] on the merits, we need not and do not
reach the sovereign immunity issue.”).

Federal Circuit:

Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348,
1358 (Fed. Cir. 2001); cf. Energy Nw. v. United States, 641 F.3d
1300, 1311 n.6 (Fed. Cir. 2011) (explaining that Bluebonnett
“rejected [the plaintiffs’] claim for inadequate proof” and “did
not take up the sovereign immunity question”).