Rine v. Imagitas, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14880 Dec. 21, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket Nos. 06-00690-CV-J-32-HTS
07-00002-MD-J-3

MARVIN N. RINE, on behalf of himself and all
others similarly situated,
JACALYN SMITH, on behalf of herself and all others
similarly situated,
MARTIN MARTINEZ, on behalf of himself and all
others similarly situated,
VIOLET BECKMAN, on behalf of herself and all
others similarly situated,
RANDALL HEAVRIN, on behalf of himself and all
others similarly situated,

Plaintiffs-Appellants,

versus

IMAGITAS, INC.,
a Delaware corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(December 21, 2009)
Before CARNES, FAY and ALARCÓN,* Circuit Judges.

FAY, Circuit Judge:

This appeal arises from a series of multi-district litigation cases regarding

the disclosure and use of drivers’ personal information under the Driver’s Privacy

Protection Act of 1994 (“DPPA”), 18 U.S.C. §§ 2721-25. The plaintiff-appellants

are Florida drivers who received automobile registration renewal mailings from the

state, which included advertisements and solicitations. The registration renewals

were distributed pursuant to a contract between the Florida Department of

Highway Safety & Motor Vehicles (“Florida DHSMV”) and the defendant-

appellee, Imagitas, Inc.1 (“Imagitas”). The plaintiff-appellants assert that use of

personal information by the state or its contractors to send commercial solicitations

to non-consenting Florida drivers violated the DPPA. Imagitas maintains that its

DriverSource program is a permissible use of drivers’ personal information under

the DPPA. The district court granted summary judgment holding that “Imagitas

has not violated the DPPA in its implementation of the DriverSource program in

*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
1
Imagitas, Inc., a wholly owned subsidiary of Pitney Bowes, Inc., is a marketing
company that has engaged in partnerships with government agencies to combine marketing
materials with government informational publications distributed through public mailings and
websites. Examples include change of address forms and new resident welcome kits from the
United States Postal Service.

2
Florida.” In re Imagitas, Inc., Drivers' Privacy Protection Act Litigation, Nos.

3:07-md-2-J-32HTS, 3:06-cv-690-J-32HTS, 2008 WL 977333, at *15 (M.D. Fla.

Apr. 9, 2008). We affirm.

I. BACKGROUND

A. Factual Background

States require individuals to provide personal information, such as name,

address, telephone number, Social Security number, medical information, and

photograph, as a condition of obtaining a driver's license or registering an

automobile. See Reno v. Condon, 528 U.S. 141, 143, 120 S. Ct. 666, 668 (2000).

In the early 1990s, Congress found that the sale of this personal information to

individuals and businesses had become a significant source of revenue for many

states. See id. at 143-44, 120 S. Ct. at 668. Florida was one such state.

Responding to privacy and safety concerns, Congress enacted the DPPA to

regulate the disclosure and resale of an individual’s personal information from

state motor vehicle records. “The DPPA generally prohibits any state DMV, or

officer, employee, or contractor thereof, from ‘knowingly disclos[ing] or otherwise

mak[ing] available to any person or entity personal information2 about any

2
The DPPA defines personal information as “information that identifies an individual,
including an individual's photograph, social security number, driver identification number, name,
address (but not the 5-digit zip code), telephone number, and medical or disability information,
but does not include information on vehicular accidents, driving violations, and driver's status.”

3
individual obtained by the department in connection with a motor vehicle

record.3 ’” Condon, 528 U.S. at 144, 120 S. Ct. at 668 (quoting 18 U.S.C. §

2721(a)) (alteration in original) (footnotes added).

The DPPA’s prohibition against disclosure does not apply if a driver

consents to the release of their personal information. As originally enacted, the

DPPA contained an opt-out provision which allowed individuals to request that

their personal information not be released for marketing purposes. See Pub. L.

103-322, 108 Stat. 1796, § 300002. If a driver failed to opt-out, their consent to

the release of personal information was implied. However, in October 1999

Congress amended the DPPA to change the opt-out provision to an express consent

opt-in requirement. See Pub. L. 106-69, 113 Stat. 986, §§ 350(c), (d), and (e).

Under the amended DPPA, states must “obtain a driver’s affirmative consent to

disclose the driver’s personal information for use in surveys, marketing,

solicitations, and other restricted purposes.” Condon, 528 U.S. at 145, 120 S. Ct.

at 669.

In addition to the express consent provision, the DPPA contains a number of

statutory exceptions to the general prohibition against disclosure of drivers’

18 U.S.C. § 2725(3).
3
The DPPA defines motor vehicle record as “any record that pertains to a motor vehicle
operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by
a department of motor vehicles.” 18 U.S.C. § 2725(1).

4
personal information. See id. In fact, the DPPA requires disclosure of personal

information to ensure compliance with various federal statutes concerning motor

vehicle safety, theft, and emissions. See 18 U.S.C. § 2721(b). The DPPA also

permits disclosure of personal information for a number of limited purposes. See

id. One such purpose is to allow government agencies to carry out their functions.

See 18 U.S.C. § 2721(b)(1). Under that exception, disclosure is permitted “[f]or

use by any government agency” or “any private person or entity acting on behalf of

a Federal, State, or local agency in carrying out its functions.” Id.

While the DPPA primarily addresses the disclosure of drivers’ personal

information, the DPPA also makes it “unlawful for any person knowingly to obtain

or disclose personal information, from a motor vehicle record, for any use not

permitted under section 2721(b) of this title.” 18 U.S.C. § 2722(a) (emphasis

added). Thus, third parties who obtain drivers’ personal information for other than

a permissible use, are in violation of the DPPA. To ensure compliance, the DPPA

provides a civil cause of action to drivers whose personal information has been

obtained, disclosed, or used by a person4 in violation of the DPPA. See 18 U.S.C.

§ 2724.

4
The DPPA defines person as “an individual, organization or entity, but does not include
a State or agency thereof.” 18 U.S.C. 2725(2). Thus, the State of Florida is not a person under
the DPPA and is not liable for disclosing drivers’ personal information in violation of the DPPA.

5
 As mentioned previously, Florida has a history of generating revenue

through the sale of drivers’ personal information. In May 2004, almost four years

after the effective date of the DPPA amendment, Florida amended its public

records statute to comply with the DPPA’s express consent requirements. See Fla.

Stat. § 119.07(3)(aa)(12). However, Florida continued to utilize drivers’ personal

information for advertising purposes through a newly formed partnership with the

marketing company Imagitas. In July 2004, Imagitas entered into a five year

contract with the Florida DHSMV to develop, produce, and distribute registration

renewal notices to Florida drivers in participating counties.5 The registration

renewal notices were mailed in official envelopes, which included public service

and commercial advertising inserts. Florida’s contract with Imagitas has since

ended.

In accordance with their agreement, Imagitas mailed renewal notices to

Florida drivers whose motor vehicle registration was scheduled to expire the

following month. Imagitas placed public service information mandated by Florida

law and commercial solicitations from it’s client-advertisers in the renewal

envelopes. Imagitas marketed this service to advertisers as its DriverSource

program. Advertisers included Ford Motor Company, Sirius Radio, Home Depot,

5
Approximately twenty Florida counties used Imagitas to produce and mail registration
renewal notices, including Columbia County, where plaintiff-appellants reside.

6
and DirecTV among others. Advertising revenues were intended to offset the costs

of producing and mailing registration renewals, saving Florida counties from the

expense.6 After program costs and overhead were covered, any remaining profits

were shared by Florida and Imagitas.7

The entire DriverSource program was subject to DHSMV review and

Florida controlled all content within the renewal envelopes. Under the terms of the

contract, Florida approved each advertisement in writing and retained the right to

reject any ads that “may conflict with the best interest of the state at the

[DHSMV’s] discretion.” DHSMV Contract No. M001-05. In addition, the terms

of the contract required the advertising to be in accordance with Florida Statute §

283.58, which authorizes state agencies to “[e]nter into agreements with private

vendors for the publication or production of such public information materials . . .

in return for the right to select, sell, and place advertising that publicizes products

or services related to and harmonious with the subject matter of the publication.”

Fla. Stat. § 283.58(1)(a).

The Florida DHSMV periodically furnished Imagitas with both a renewal

file and a registration file for the DriverSource program. The renewal file, which

6
Although not statutorily required, Florida may remind drivers by mail to renew their
vehicle registration. See Fla. Stat. § 320.031(1). Florida county tax collectors are responsible
for these mailings. See Fla. Stat. §§ 320.030-.031.
7
Florida’s share in the profits was negligible, ranging from zero to three percent.

7
was updated monthly, contained information on only those drivers scheduled to

receive a reminder notice that month. The registration file, which was updated

weekly, contained information on all registered drivers within Florida. Together,

these files allowed Imagitas to generate a “household view,” which included

detailed information about all registered drivers at a particular address. The

“household view” allowed Imagitas to selectively target advertising based not only

on the vehicle that was up for renewal, but on all vehicles owned by drivers living

in the same household. During negotiations with the DHSMV, Imagitas

maintained that the “household view” was absolutely critical to creating an

effective and economically sustainable advertising program. Neither file was

released by Imagitas to its client-advertisers and such release was expressly

forbidden by its contract with the DHSMV. Under the contract, Florida retained

full ownership of both the renewal and registration files. As such, Imagitas never

acquired ownership rights in any of Florida’s data.

In addition to drivers’ personal information, Imagitas analyzed drivers’

vehicle information to develop a marketing profile for each household. Imagitas’s

proprietary segmented advertising model used the vehicle identification number,

the date of purchase, and the five-digit zip code in determining advertisement

placement. The vehicle identification number allowed Imagitas to determine the

8
year, make, and model of each automobile, while the purchase date indicated

whether the vehicle was purchased new or used. Once detailed vehicle information

was determined for each driver, Imagitas cross-referenced all mailing addresses in

the database so that drivers at the same mailing address were treated as a single

household. Each household’s vehicle information and five-digit zip code were

then used to determine advertisement placement.

B. Procedural Background

Marvin N. Rine, Jacalyn Smith, Martin Martinez, Violet Beckman, and

Randall Heavrin (“plaintiff-appellants”), are Florida drivers who received

registration renewal mailings from the State of Florida with enclosed

advertisements and solicitations pursuant to Florida’s contract with Imagitas. In

August 2006, plaintiff-appellants brought this class action against Imagitas on

behalf of themselves and all others similarly situated. Plaintiff-appellants allege

that, without express consent, Imagitas obtained their personal information from

the Florida DHSMV and used that information for a purpose not permitted under

the DPPA. Specifically, plaintiff-appellants allege that Imagitas used their

personal information for commercial advertising purposes by inserting targeted

advertisements and solicitations into the registration renewal mailings. Plaintiff-

appellants seek statutory damages of $2,500 for each class representative and class

9
member of 13,700,000 Florida drivers whose personal information was obtained or

used in violation of the DPPA.

Nine lawsuits were brought against Imagitas in the following districts: one

case in the Middle District of Florida, one case in the Southern District of Florida,

two cases in the District of Massachusetts, one case in the District of Minnesota,

one case in the Western District of Missouri, one case in the Southern District of

New York, and two cases in the Northern District of Ohio. Following our

February 2007 decision in Collier v. Dickinson, 477 F.3d 1306, 1312 (11th Cir.

2007) (holding that state officials can be held personally liable for DPPA

violations), lawsuits were brought against Florida, Minnesota, Missouri, and Ohio

state officials in their personal capacity for disclosing personal information from a

motor vehicle record in violation of the DPPA. Imagitas answered the plaintiff-

appellants’ Amended Complaint and thereafter sought multidistrict litigation

treatment of this case and all other similar cases filed around the country.

In May 2007, the Judicial Panel on Multidistrict Litigation (“JPML”)

ordered that all cases against Imagitas be transferred to the Middle District of

Florida for coordinated treatment. Several months later, the JPML also transferred

the cases against state officials to the Middle District of Florida. In all, thirteen

cases have been coordinated in the Middle District of Florida. The district court

10
determined that the Florida cases should proceed first and ordered a discovery

period to be followed by summary judgment motions. Prior to the summary

judgment deadline, plaintiff-appellants announced that they had reached a

settlement with the Florida state officials.8 After the Minnesota, Missouri, and

Ohio state officials moved to dismiss on qualified immunity grounds, plaintiff-

appellants voluntarily dismissed those lawsuits.

In October 2007, Imagitas filed its Motion for Summary Judgment asserting

that plaintiff-appellants’ complaint “does not establish a DPPA violation.”

Specifically, Imagitas argued that (1) the DPPA does not prohibit states from

sharing personal information with its own contractors, (2) the DPPA expressly

permits Florida’s disclosures to Imagitas, and (3) the DPPA does not prohibit

Florida’s inclusion of solicitations within its registration renewal envelopes.

Imagitas also argued that interpreting the DPPA to prevent Florida from using its

own information for advertising purposes would violate the First Amendment and

that Imagitas is entitled to qualified immunity.

In April 2008, the district court granted Imagitas’s motion for summary

judgment holding that “[its] DriverSource program, as operated under Imagitas’

8
Despite the parties filing a “Joint Notice of Agreement to Settle” and a subsequent
“Letter of Understanding” in October 2007, the case against the Florida state officials appears to
remain unresolved.

11
contract with Florida, does not violate the ‘letter’ of the DPPA.” In re Imagitas,

2008 WL 977333, at *15. However, the district court conceded the DriverSource

program “could well be argued to violate the ‘spirit’ of the DPPA,” which “was

passed to protect drivers’ privacy, limit dissemination of drivers’ personal

information, and restrict mass mailings generated through the use of personal

information that drivers must, by law, provide to the state.” Id. Despite these

reservations, the district court concluded that, as a state contractor, Imagitas was

acting on behalf of the Florida DHSMV in carrying out its functions and therefore

not in violation of the DPPA. Plaintiff-appellants appeal the district court's grant

of summary judgment to Imagitas.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo, viewing

all evidence and any reasonable inferences that might be drawn therefrom in the

light most favorable to the non-moving party. See Acevedo v. First Union Nat.

Bank, 357 F.3d 1244, 1246-47 (11th Cir. 2004). Under Fed. R. Civ. P. 56(c), a

motion for summary judgment is properly granted when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.

12
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). The interpretation of

a statute is a question of law subject to de novo review. See United States v.

Endotec, Inc., 563 F.3d 1187, 1194 (11th Cir. 2009).

III. DISCUSSION

This appeal raises questions concerning what states and their contractors can

or cannot do under the DPPA. Specifically, is the act of mailing notices to

registered vehicle owners reminding them of the need to complete an annual

registration a government function? If so, can the state of Florida include

advertisements in such a notice in an effort to generate revenue to offset the cost?

If such is a permissible government function, can the state of Florida accomplish

this through a contractor? Resolving these questions requires that we engage in an

exercise of statutory interpretation.

“As with any question of statutory interpretation, we begin by examining the

text of the statute to determine whether its meaning is clear.” Harry v. Marchant,

291 F.3d 767, 770 (11th Cir. 2002) (en banc). “In construing a statute we must

begin, and often should end as well, with the language of the statute itself.” United

States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (quoting Merritt v.

Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997)). “We do this because

we presume that Congress said what it meant and meant what it said.” Marchant,

13
291 F.3d at 770 (internal quotations omitted). “Where the language of a statute is

unambiguous, as it is here, we need not, and ought not, consider legislative

history.” Id. at 772; see also United States v. Gonzales, 520 U.S. 1, 6, 117 S. Ct.

1032, 1035 (1997) (“Given the straightforward statutory command, there is no

reason to resort to legislative history.”); Harris v. Garner, 216 F.3d 970, 976 (11th

Cir. 2000) (en banc) (“When the import of the words Congress has used is clear, . .

. we need not resort to legislative history, and we certainly should not do so to

undermine the plain meaning of the statutory language.”).

Plaintiff-appellants allege that Imagitas violated section 2722(a) of the

DPPA, which states: “It shall be unlawful for any person knowingly to obtain or

disclose personal information, from a motor vehicle record, for any use not

permitted under section 2721(b) of this title.” 18 U.S.C. § 2722(a). Imagitas does

not dispute that it qualifies as a person under the DPPA and that it knowingly

obtained personal information from a motor vehicle record. Imagitas obtained

drivers’ names and addresses pursuant to its contract with the Florida DHSMV. As

such, the question of Imagitas’s liability is limited to whether its use of plaintiff-

appellants’ personal information is permitted under section 2721(b). Put another

way, Imagitas is only liable if its DriverSource program was not a permissible use

under section 2721(b).

14
 Section 2721(b) authorizes the disclosure of drivers’ personal information

for fourteen permissible uses. See 18 U.S.C. § 2721(b)(1)-(14). Imagitas argues

that subsection 2721(b)(1), which permits disclosure of personal information “[f]or

use by . . . any private person or entity acting on behalf of a Federal, State, or local

agency in carrying out its functions,” expressly permits the DriverSource program.

18 U.S.C. § 2721(b)(1). Application of this subsection to Imagitas’s DriverSource

program brings us to the heart of the dispute and requires the resolution of two

main issues: first, whether the DriverSource program is carrying out a function of

the Florida DHSMV; and second, whether Imagitas is a private entity “acting on

behalf of” the Florida DHSMV.

A. Is the DriverSource program carrying out a function of the Florida DHSMV?

Plaintiff-appellants do not dispute that mailing registration renewal notices

is a legitimate function of the Florida DHSMV. The dispute here centers on

whether the inclusion of commercial advertising in renewal envelopes is a

legitimate agency function. However, the DPPA does not define what it means by

an agency function. Because the DPPA is a federal statute, its interpretation is a

matter of federal law. See Stein v. Paradigm Mirasol, LLC, 586 F.3d 849, 854

(11th Cir. 2009). “When statutory terms are undefined, we typically infer that

Congress intended them to have their common and ordinary meaning, unless it is

15
apparent from context that the disputed term is a term of art.” Garcia v. Vanguard

Car Rental USA, Inc., 540 F.3d 1242, 1246 (11th Cir. 2008). “Function” is defined

as “the action for which a person or thing is specially fitted, used , or responsible

or for which a thing exists; the activity appropriate to the nature or position of a

person or thing.” Webster’s Third New International Dictionary 920 (3d ed.

1966). Of course, we will defer to Florida as to the proper activities of the

DHSMV.

Funding public programs through commercial advertising is a legitimate

agency function within Florida. Through various enabling statutes, Florida

encourages its agencies to take advantage of commercial advertising to offset

program costs and raise revenues. Imagitas relies heavily on Florida Statute §

283.58, which permits Florida agencies to “place advertising” in public

information materials as a way of paying “the costs of [the materials’] publication

or production . . . .” Fla. Stat. § 283.58(1)(a). In addition to public information

materials, Florida permits commercial advertising on public transportation benches

and shelters, see Fla. Stat. § 337.408(1), highway right-of-ways, see Fla. Stat. §

479.261, and highway rest area information panels, see Fla. Stat. § 479.28(3).

Florida’s contract with Imagitas stated “[t]he purpose of the sale of advertisements

for inclusion in the mailings is to secure the distribution of public information

16
materials free to the public, and at no cost to the state . . . .” ITN No. 010-04 § 4.7.

As such, the DriverSource program is carrying out a function of the Florida

DHSMV.

B. Is this agency function preempted by the DPPA?

While state agency functions are defined almost exclusively by state law, an

otherwise legitimate agency function may be preempted by federal law. Under the

Supremacy Clause, any state law that conflicts with federal law is preempted.

Gibbons v. Ogden, 22 U.S. 1 (1824). Conflict arises “where compliance with both

federal and state regulations is a physical impossibility or where state law stands as

an obstacle to the accomplishment and execution of the full purposes and objectives

of Congress.” Gade v. Nat’l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S. Ct.

2374, 2383 (1992) (internal quotes and citations omitted). Thus, even a legitimate

state function is prohibited if it conflicts with the DPPA.

Plaintiff-appellants claim that section 2721(a), which provides that states

“shall not knowingly disclose or otherwise make available to any person or entity”

drivers’ personal information, 18 U.S.C. 27121(a) (emphasis added), prohibits

Florida from utilizing targeted advertising such as the DriverSource program.

Plaintiff-appellants argue that Florida makes drivers’ personal information available

to advertisers by sending their targeted solicitations to non-consenting drivers.

17
 Congress wrote section 2721(a) in the disjunctive, which “indicates

alternatives and requires that those alternatives be treated separately.” Brown v.

Budget Rent-A-Car Sys., Inc., 119 F.3d 922, 924 (11th Cir. 1997); see also United

States v. Harmas, 974 F.2d 1262, 1266 (11th Cir. 1992) (statutes “written in the

disjunctive” should “ be interpreted as establishing two alternative means of

committing a violation”). The use of the disjunctive “or” indicates that something

different or unlike disclosure is also prohibited by section 2721(a). See Webster’s

Third New International Dictionary 1585 (3d ed. 1966) (“or” is “[u]sed as a

function word to indicate an alternative between different or unlike things”);

Resolution Trust Corp. v. United Trust Fund, Inc., 57 F.3d 1025, 1033 (11th Cir.

1995) (“the disjunctive ‘or’ gives independent meaning to the words it separates”);

United States v. Cruz, 805 F.2d 1464, 1472 (11th Cir. 1986) (separating terms “by

the disjunctive word ‘or,’ strongly indicat[es] that Congress construed the two to be

separate and distinct”). Congress’s use of “otherwise” confirms that “make

available” means something different than, or unlike, disclosure. See Webster’s

Third New International Dictionary 1598 (3d ed. 1966) (“in a different way or

manner”). Thus, section 2721(a) generally prohibits states from disclosing personal

information or using personal information in a manner that, although not disclosed,

would “otherwise make [it] available to any person or entity . . . .” 18 U.S.C.

18
27121(a). However, section 2721(b) remains an exception to this general

prohibition against disclosing or otherwise making available drivers’ personal

information. As such, it is unnecessary for us to reach the question of whether

Florida makes drivers’ personal information available to advertisers if the

DriverSource program is a permissible use under section 2721(b)(1).

C. Was Imagitas acting on behalf of the Florida DHSMV?

Having determined that the DriverSource program was a legitimate agency

function, we now turn to whether Imagitas was a private entity acting on behalf of

the Florida DHSMV. See 18 U.S.C. § 2721(b)(1). Because the phrase “on behalf

of” is not defined in the DPPA, we again look to its ordinary meaning. See Garcia,

540 F.3d at 1246. “On behalf of” means “as the agent of” or “as representative of.”

Bryan A. Garner, A Dictionary of Modern Legal Usage 83 (1987).

In the district court, Plaintiff-appellants argued that Imagitas was not acting

on Florida’s behalf. Plaintiff-appellants raised multiple arguments asserting that

Florida’s contract with Imagitas did not require advertising, that Imagitas acted

outside of its contract, and that Imagitas was an independent contractor rather than

Florida’s agent. The district court rejected these arguments. On appeal, plaintiff-

appellants have not restated these arguments nor contended that the district court

wrongly decided this issue. Rather, plaintiff-appellants now claim that Imagitas

19
acted on behalf of its advertising clients rather than the Florida DHSMV. We

disagree.

Florida Statute § 283.58, authorizes state agencies to “[e]nter into agreements

with private vendors” to publish or produce public information materials, financed

by the vendor’s right to “select, sell, and place advertising . . . .” Fla. Stat. §

283.58(1)(a). Florida’s contract with Imagitas was such an agreement. Prior to

entering into its contract with Imagitas, Florida issued an Invitation to Negotiate

(“ITN”), which invited private companies to bid on a state contract for furnishing

and mailing notices to renew vehicle registrations in containers including public

information and advertising. See ITN No. 010-04. The ITN requested proposals by

which the advertising revenue would “secure the distribution of public information

materials free to the public, and at no cost to the state . . . .” ITN No. 010-04 § 4.7.

This evidence demonstrates that the Florida DHSMV actively sought a private

entity to administer this program on its behalf. While Imagitas developed and

submitted details for the DriverSource program, the initial concept was Florida’s

design. Moreover, Florida retained control over the entire DriverSource program.

Florida never relinquished ownership of its motor vehicle records and “[t]he entire

advertising program [was] subject to DHSMV review.” Technical Proposal §

2.6.2.6. Florida could even require the inclusion of public service information of its

20
choosing. Thus, Imagitas’s administration of the DriverSource program was on

behalf of the Florida DHSMV.

Based on the foregoing analysis, we conclude that Imagitas was a private

entity acting on behalf of the Florida DHSMV in carrying out its functions. As

such, Imagitas obtained drivers’ personal information for a permissible use under

section 2721(b)(1) of the DPPA.

D. Does § 2721(b)(12) have to be complied with instead?

Plaintiff-appellants argue that even if subsection 2721(b)(1) generally

applies, subsection 2721(b)(12), which specifically addresses the bulk distribution

of marketing and solicitation materials, must be complied with instead. Plaintiff-

appellants rely on HCSC-Laundry v. United States for this conclusion. 450 U.S. 1,

101 S. Ct. 836 (1981). In HCSC, a non-profit corporation, organized to provide

laundry and linen services to non-profit hospitals, sought tax-exempt status under

section 501(c)(3) of the Internal Revenue Code. See id. at 3, 101 S. Ct. at 837.

Section 501(c)(3) generally provides such an exemption. However, the Supreme

Court held that the non-profit was not entitled to tax-exempt status because section

501(e), which specifically concerned “cooperative hospital service organizations,”

did not authorize tax-exempt status for organizations providing laundry and linen

services. See id. at 8, 101 S. Ct. at 839. The Court explained that “it is a basic

21
principle of statutory construction that a specific statute . . . controls over a general

provision . . . particularly when the two are interrelated and closely positioned . . . .”

Id. at 6, 101 S. Ct. at 839.

Imagitas claims that Connecticut National Bank v. Germain, is controlling.

503 U.S. 249, 112 S. Ct. 1146 (1992). The Germain Court addressed two statutes

that potentially governed interlocutory appeals of bankruptcy decisions: a provision

permitting appellate review of interlocutory orders, see 28 U.S.C. § 1292, and a

provision permitting bankruptcy appeals, see 28 U.S.C. § 158(d). The Second

Circuit dismissed the appeal for lack of jurisdiction. The Supreme Court reversed

and remanded holding that even though the statutes overlapped, both must be given

effect unless there is a “positive repugnancy” between the provisions. Germain,

503 U.S. at 253, 112 S. Ct. at 1149. See generally Tug Allie-B, Inc. v. United

States, 273 F.3d 936, 941-42 (11th Cir. 2001) (a “positive repugnancy” is a

“conflict that cannot be reconciled”).

This case more closely resembles Germain than HCSC. The general/specific

principle of statutory construction, which the Court applied in HCSC, is not

applicable here because subsection (b)(1) is just as specific as subsection (b)(12).

Both are exceptions to the general prohibition against the disclosure of drivers’

personal information. Subsection (b)(1) applies to a situation not addressed by

22
subsection (b)(12) and vice versa. Like Germain, this case involves two statutory

provisions that potentially apply. While these provisions may overlap, they both

apply to situations not governed by the other and both must be given effect unless

they “pose an either-or proposition.” Germain, 503 U.S. at 253, 112 S. Ct. at 1149.

Furthermore, nothing in the DPPA suggests that the (b)(12) exception alters the

scope or meaning of the separate and independent exception found in subsection

(b)(1). As such, the statutory exceptions found in section 2721(b) are not mutually

exclusive, meaning that any one or more of them may be applicable to a given

situation.

IV.

Plaintiff-appellants argue that Imagitas and the State of Florida are doing an

“end run” around the DPPA, and indeed, the district court thought such an argument

was not unreasonable. That may or may not be true. Congress knew what the states

were doing when it passed the DPPA. There is nothing in the federal statute that

prevents states from including advertisements in such renewal notices and the same

statute specifically allows states to operate though private contractors. If this is a

loop hole, Congress can remedy this situation. However, we can just as easily

conclude that Congress knew exactly what it was doing and through the DPPA put

broad limits on the disclosure of personal information while not preventing state

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agencies from using this method to pay for the cost of such governmental notices.

For the foregoing reasons, the summary judgment of the district court is,

AFFIRMED.

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