Johnathan Hatch v. Michael DeMayo ( 2022 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1478
WILLIAM PARKER GAREY; AARON KENT CRUTHIS; JUSTIN BRENT
BLAKESLEE; ADILAH HANEEFAH-KHADI MCNEIL; CHARLOTTE
MOFFAT CLEVENGER; BELINDA LEE STEINMETZ, on behalf of themselves
and others similarly situated,
Plaintiffs – Appellants,
v.
JAMES S. FARRIN, P.C., d/b/a Law Offices of James Scott Farrin; MARCARI,
RUSSOTTO, SPENCER & BALABAN, P.C.; RIDDLE & BRANTLEY, L.L.P.;
WALLACE PIERCE LAW, PLLC; R. BRADLEY VAN LANINGHAM; LANIER
LAW GROUP, P.A.; JAMES S. FARRIN; DONALD W. MARCARI; SEAN A.
COLE; JARED PIERCE; VAN LANINGHAM & ASSOCIATES, PLLC, d/b/a
Bradley Law Group; LISA LANIER; CHRIS ROBERTS; CRUMLEY ROBERTS,
LLP; HARDISON & COCHRAN, PLLC; BENJAMIN T. COCHRAN; TED A.
GREVE & ASSOCIATES, P.A.; TED A. GREVE; LAW OFFICES OF MICHAEL
A. DEMAYO, L.L.P.; MICHAEL A. DEMAYO; HARDEE & HARDEE, LLP;
CHARLES HARDEE; G. WAYNE HARDEE; KATHERINE E. ANDREWS-
LANIER,
Defendants – Appellees,
and
UNITED STATES OF AMERICA,
Intervenor.
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No. 21-1480
JOHNATHAN HATCH; MARK F. DVORSKY; KELLY EPPERSON,
Plaintiffs – Appellants,
and
SHATERIKA NICHOLSON,
Plaintiff,
v.
MICHAEL A. DEMAYO; LAW OFFICES OF MICHAEL A. DEMAYO, L.L.P;
THE LAW OFFICES OF MICHAEL A. DEMAYO, P.C.; JASON E. TAYLOR;
LAW OFFICES OF JASON E. TAYLOR, P.C.; BENJAMIN T. COCHRAN;
HARDISON & COCHRAN, PLLC; CARL B. NAGLE; NAGLE & ASSOCIATES,
P.A.; JOHN J. GELSHENEN, JR.; DAVIS & GELSHENEN, LLP; MARK I.
FARBMAN; MARK FARBMAN, P.A.; TED A. GREVE; TED A. GREVE &
ASSOCIATES, P.A.; CHRISTOPHER THOMAS MAY; ESTWANIK ANY
MAY, P.L.L.C.,
Defendants – Appellees,
UNITED STATES OF AMERICA,
Intervenor,
and
MICHAEL J. LEWIS; LEWIS & ASSOCIATES ATTORNEYS AT LAW, P.A.;
THOMAS KREGER,
Defendants.
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Appeals from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:16-cv-00542-LCB-LPA; 1:16-cv-00925-
LCB-LPA)
Argued: May 3, 2022 Decided: June 3, 2022
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkinson
and Judge Thacker joined.
ARGUED: J. David Stradley, WHITE & STRADLEY, LLP, Raleigh, North Carolina, for
Appellants. Matthew Nis Leerberg, FOX ROTHSCHILD LLP, Raleigh, North Carolina,
for Appellees. Amanda Mundell, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Intervenor. ON BRIEF: Robert P. Holmes, IV, WHITE &
STRADLEY, LLP, Raleigh, North Carolina; John F. Bloss HIGGINS BENJAMIN, PLLC,
Greensboro, North Carolina, for Appellants. Reid C. Adams, Jr., Jonathan R. Reich,
WOMBLE BOND DICKINSON (US) LLP, Winston-Salem, North Carolina; Bradley M.
Risinger, Troy D. Shelton, Jeffrey R. Whitley, FOX ROTHSCHILD LLP, Raleigh, North
Carolina; Harold C. Spears, CAUDLE & SPEARS, P.A., Charlotte, North Carolina; David
Coats, BAILEY & DIXON, Raleigh, North Carolina, for Appellees. Brian M. Boynton,
Acting Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.
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DIANA GRIBBON MOTZ, Circuit Judge:
The Defendants here, a number of personal injury lawyers, obtained car accident
reports from North Carolina law enforcement agencies and private data brokers. The
reports included the names and addresses of the drivers involved in those accidents. The
Defendants used that personal information to mail unsolicited attorney advertising
materials to some of the drivers. Two groups of the drivers who received these materials,
the Plaintiffs here, filed suit, asserting that the Defendants violated the Driver’s Privacy
Protection Act (“DPPA”). That statute provides a private cause of action against “[a]
person who knowingly obtains, discloses or uses personal information, from a motor
vehicle record,” for an impermissible purpose. See 18 U.S.C. § 2724(a). The district court
held that the Plaintiffs had standing to bring suit for damages, but rejected the Plaintiffs’
claims on the merits, granting summary judgment to the Defendants in both cases. We
affirm, albeit on narrower grounds than those on which the district court relied.
I.
Despite the voluminous 1 record in these consolidated cases, the relevant facts are
uncontested. When law enforcement officers respond to a car crash in North Carolina, they
generate an account of the accident on a standardized form. The form includes the type of
1
The Joint Appendices in these cases run over 13,000 pages, of which only a few
hundred are necessary to dispose of this appeal. We gently remind litigants that the Federal
Rules of Appellate Procedure provide that parties should include in a joint appendix “the
relevant docket entries in the proceeding below,” “the relevant portions of the pleadings, .
. . findings, or opinion,” and limited other documents helpful to the resolution of an appeal.
Fed. R. App. P. 30(a)(1) (emphasis added); see also Theodore Seuss Geissel, The Lorax 23
(1971) (“I speak for the trees, for the trees have no tongues.”).
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information one might expect: the time and location of the accident, the make and model
of the involved vehicles, a description of any injuries, a brief narrative of the crash, and so
on. Crucially, the form also includes the names and home addresses of the drivers.
Underneath the address field in the form is the text: “Same Address on Driver’s License?”
followed by “Yes” or “No” checkboxes. Law enforcement agencies store these accident
reports, 2 which are public records under North Carolina law. See N.C. Gen. Stat. § 20-
166.1(i) (“The [accident] reports made by law enforcement officers . . . are public records
and are open to inspection by the general public.”). In addition, some private data brokers
obtain and sell these accident reports.
The Defendants are attorneys who wish to represent people involved in car crashes
in North Carolina. They obtained accident reports from North Carolina law enforcement
agencies or private data brokers and used the names and addresses on the reports to mail
unsolicited attorney advertising materials to the drivers involved in those crashes. Two
groups of drivers who received such mailings — the Plaintiffs here — sued, invoking §
2724(a) of the DPPA. That statute provides:
A person who knowingly obtains, discloses or uses personal information,
from a motor vehicle record, for a purpose not permitted under this chapter
shall be liable to the individual to whom the information pertains, who may
bring a civil action in a United States district court.
§ 2724(a). Both groups of Plaintiffs sought monetary damages and injunctive relief, and
one group also sought a declaratory judgment.
2
Although somewhat confusingly labelled as a “DMV-349,” the standardized form
is neither created nor stored by the North Carolina Department of Motor Vehicles.
Therefore, for clarity’s sake, we refer to this form as an “accident report.”
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After a flurry of motions and amended complaints, the district court denied the
Defendants’ motions to dismiss the damages claims for lack of standing but granted those
motions insofar as the Plaintiffs sought injunctive relief. Ultimately, the district court ruled
for the Defendants on cross-motions for summary judgment. The court reasoned that the
DPPA applies only to persons who obtain personal information directly from a state DMV.
Here, the court noted, the “Defendants either obtained these reports directly from a local
law enforcement office or they subscribed to third-party services that aggregated crash
records.” Because the Defendants never obtained records from a DMV, the court
concluded that their “conduct thus falls outside the ambit of the DPPA, and they are entitled
to judgment as a matter of law.”
The Plaintiffs then appealed. Because the Hatch and Garey cases present
substantively identical legal questions (with a few minor exceptions noted herein), we
consolidated them for appeal. We now affirm.
II.
The Defendants challenge the Plaintiffs’ standing to seek monetary and injunctive
relief. The district court held that the Plaintiffs had standing to pursue damages but lacked
standing to obtain an injunction. Because “[s]tanding ‘is a threshold jurisdictional
question,’” we address it first. Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 343 (4th
Cir. 2017) (quoting Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001)). Our review
of standing questions is de novo. Wikimedia Found. v. NSA, 857 F.3d 193, 207 (4th Cir.
2017).
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A.
Plaintiffs who do not have a legally cognizable injury lack standing to bring suit in
federal court. 3 Congress may, of course, “elevat[e] to the status of legally cognizable
injuries concrete, de facto injuries that were previously inadequate in law.” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 578 (1992). But as the Defendants correctly point out, plaintiffs
cannot establish a cognizable injury simply by pleading a statutory violation. See Spokeo,
Inc. v. Robins, 578 U.S. 330, 341 (2016) (“Article III standing requires a concrete injury
even in the context of a statutory violation.”).
Balancing these two rules has in the past caused some confusion, but the Supreme
Court recently clarified when a statutory cause of action identifies an injury sufficient for
standing purposes. In TransUnion LLC v. Ramirez, the Court explained that plaintiffs
proceeding under a statutory cause of action can establish a cognizable injury by
“identif[ying] a close historical or common-law analogue for their asserted injury” for
which courts have “traditionally” provided a remedy. 141 S. Ct. 2190, 2204 (2021) (citing
Spokeo, 578 U.S. at 341). A plaintiff who does so has standing even if the precise injury
would not, absent the statute, be sufficient for Article III standing purposes.
Consistent with TransUnion, the district court here found standing because
“[p]laintiffs’ alleged harms are closely related to the invasion of privacy, which has long
provided a basis for recovery at common law.” We agree. Indeed, following Spokeo and
foreshadowing TransUnion, we recently rebuffed a nearly identical standing challenge in
3
The other two standing requirements are causation and redressability. See Lujan,
504 U.S. at 560–61. Only the presence of a legally cognizable injury is at issue in this case.
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a case arising under the Telephone Consumer Protection Act (“TCPA”), another consumer
privacy statute that, like the DPPA, provides a private right of action against offenders.
See Krakauer v. Dish Network, LLC, 925 F.3d 643, 652–54 (4th Cir. 2019).
In Krakauer, we explained that by enacting the TCPA, “Congress responded to the
harms of actual people by creating a cause of action that protects their particular and
concrete privacy interests.” Id. at 653. And we noted that injuries to personal privacy have
long been “recognized in tort law and redressable through private litigation.” Id. We
acknowledged that although the TCPA provides claims that differ from common law
privacy torts, Spokeo does not require us to “import the elements of common law torts,
piece by piece, into any scheme Congress may devise.” Id. Rather, we concluded that our
inquiry “focuse[s] on types of harms protected at common law, not the precise point at
which those harms become actionable.” Id. at 654. Therefore, we held that the TCPA’s
“private right of action . . . plainly satisfies the demands of Article III.” Id. at 653.
Applying the same analysis as Krakauer, we reach the same result. The Plaintiffs
have alleged a legally cognizable privacy injury. See, e.g., Garey Second Am. Compl. ¶
127 (“[E]ach [Plaintiff] sustained actual damages by having his or her privacy invaded by
Defendants’ knowingly obtaining his or her name and address from a motor vehicle record
for an impermissible purpose in violation of law.”). The Defendants point out some
differences between the common law privacy torts and the DPPA, but our inquiry “does
not require an exact duplicate in American history and tradition.” TransUnion, 141 S. Ct.
at 2204. At bottom, the DPPA is aimed squarely at “the right of the plaintiff, in the phrase
coined by Judge Cooley, ‘to be let alone.’” William L. Prosser, Privacy, 48 CALIF. L. REV.
8
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383, 389 (1960) (footnote omitted). See generally Samuel D. Warren & Louis D. Brandeis,
The Right to Privacy, 4 HARV. L. REV. 193 (1890). Therefore, the Plaintiffs have Article
III standing to pursue claims for damages. 4
B.
Our holding that the Plaintiffs have standing to seek damages does not end our
inquiry, because “a plaintiff must demonstrate standing separately for each form of relief
sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185
(2000). Here, the Plaintiffs seek injunctive relief in addition to damages. “[A] plaintiff
can ‘satisfy the injury-in-fact requirement for prospective relief’ either by demonstrating
‘a sufficiently imminent injury in fact’ or by demonstrating ‘an ongoing injury’ . . . .” Deal
v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 189 (4th Cir. 2018) (quoting Kenny v. Wilson,
885 F.3d 280, 288 (4th Cir. 2018)).
The district court rejected the Garey Plaintiffs’ request for injunctive relief on
standing grounds because “[t]here is no showing either in the Second Amended Complaint
or in Plaintiffs’ Response to [the] Motion to Dismiss that [the named] plaintiffs are subject
to any imminent harm.” Similarly, the court rejected the Hatch Plaintiffs’ request for an
injunction because “[t]here is no . . . showing either in the Second Amended Complaint or
in Plaintiffs’ [response to the motion to dismiss] that any of the three plaintiffs are subject
4
The DPPA provides for liquidated damages of $2,500 if a plaintiff cannot prove
actual damages greater than that amount. § 2724(b)(1). See Kehoe v. Fidelity Fed. Bank
& Tr., 421 F.3d 1209, 1213 (11th Cir. 2005) (“Since liquidated damages are an appropriate
substitute for the potentially uncertain and unmeasurable actual damages of a privacy
violation, it follows that proof of actual damages is not necessary for an award of liquidated
damages [under the DPPA].”). The Defendants do not contend otherwise.
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to any ‘imminent’ or ‘certainly impending’ harm.” Once again, we agree with the district
court. However, because this is one of the rare instances in which these consolidated cases
diverge slightly, we discuss them separately.
1.
The Garey Plaintiffs protest that at the time they commenced this action, the
Defendants “were unlawfully using DPPA-protected information in connection with their
mail solicitation efforts.” Garey Pls’. Br. at 33 (emphasis added). To be sure, the DPPA
imposes liability on one “who knowingly obtains, discloses or uses personal information.”
§ 2724(a) (emphasis added). But the operative document here is the Second Amended
Complaint. And in seeking leave to file that complaint, the Garey Plaintiffs made clear
that their proposed amendments would “streamline the action” by eschewing a “use” or
“disclosure” theory and focusing “only [on] the Defendants’ obtaining of Plaintiffs’
personal information.” The district court granted them leave to amend. Having amended
their complaint to jettison a “use” theory of DPPA liability and bring only an “obtaining”
claim, the Garey Plaintiffs cannot now seek standing based on the “use” of their personal
information.
Instead, having narrowed their case to “obtaining,” the Garey Plaintiffs must allege
that the Defendants are currently obtaining their personal information or will do so
imminently, unless they receive injunctive relief. But under their theory of the case, the
obtaining of their personal information is a fait accompli; the Garey Plaintiffs were already
in car accidents, and the Defendants already obtained the relevant accident reports. That
is enough for retrospective monetary relief, but it does not establish an ongoing or
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imminent injury. A future “obtaining” violation would only occur if a Plaintiff is involved
in a future car accident in North Carolina, if law enforcement generates another crash
report, and if the Defendants obtain that hypothetical report. But that mere possibility is
hardly the kind of non-speculative, imminent danger that can support injunctive relief. See
City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (“[P]ast wrongs do not in themselves
amount to that real and immediate threat of injury necessary to [obtain prospective
remedies].”). Therefore, we affirm the district court’s dismissal of the Garey Plaintiffs’
request for injunctive relief for lack of standing.
2.
The Hatch Plaintiffs’ standing to seek injunctive relief presents a slightly different
story, although the ending is the same. 5 Unlike the Garey Plaintiffs, the Hatch Second
Amended Complaint (the operative complaint) did not disavow a “use” theory of liability.
Indeed, the operative Hatch complaint plainly alleges that the “Defendants knowingly
obtained and used one or more Plaintiff’s protected personal information from a motor
vehicle record.” Thus, although the Hatch Plaintiffs lack standing for injunctive relief
under an “obtaining” theory for the same reasons as the Garey Plaintiffs, the Hatch
Plaintiffs (unlike the Garey Plaintiffs) might establish standing for injunctive relief against
the ongoing or future use of their previously obtained personal information.
5
Because we conclude that the Hatch Plaintiffs lack standing to seek injunctive
relief, they also lack standing to seek a prospective declaratory judgment. See Kenny, 885
F.3d at 287–88 (explaining that the standing analysis for prospective relief applies both to
injunctive and declaratory remedies). The Garey Plaintiffs did not request declaratory
relief. See Garey Second Am. Compl. at 65–66.
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To do so, however, the Hatch Plaintiffs would have to allege that at the time of the
operative complaint, the Defendants were using their personal information or were about
to do so. See Deal, 911 F.3d at 189. But the operative complaint alleges only that the
Defendants “used” — past tense — the Plaintiffs’ information to send them unsolicited
mailings. See, e.g., Hatch Second Am. Compl. ¶ 83 (“Each Defendant knowingly obtained
and used one or more Plaintiff’s protected personal information . . . for the purpose of
marketing that Defendant’s legal services.” (emphasis added)); ¶ 90 (“[T]he named
Plaintiffs . . . have suffered damage to their respective privacy rights . . . when personal
information from a motor vehicle record . . . was obtained, disclosed or used by Defendants
without consent or permission. Such acts and conduct constituted an invasion of a legally
protected interest . . . .” (emphasis added)).
To be sure, as the Hatch Plaintiffs note, see Hatch Pls’. Br. at 27–28, they also
alleged that the “Defendants regularly and knowingly obtain and use personal information
from motor vehicle records for purposes of marketing their services,” Hatch Second Am.
Compl. ¶ 89, and that some Defendants kept sending mailings like those sent to the named
Plaintiffs even after this case commenced. Id. ¶ 80. But there is no allegation that the
Plaintiffs were continuing to receive such mailings at the time of the operative complaint,
nor that they are imminently likely to receive such mailings in the future. Instead, the
allegations of ongoing conduct relate to the Defendants’ practices in general, rather than
specifically in connection with the named Plaintiffs. Thus, because the Hatch Plaintiffs
(and, for that matter, the Garey Plaintiffs) have not alleged an ongoing or imminent
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“obtaining” or “use” violation vis-à-vis their own personal information, 6 the district court
properly dismissed their request for injunctive relief.
III.
We turn to the merits. On cross-motions for summary judgment, the district court
ruled for the Defendants and against the Plaintiffs. We review such rulings de novo. Young
v. Equinor USA Onshore Props., Inc., 982 F.3d 201, 205 (4th Cir. 2020).
The parties seek to present several complex questions of first impression in this
Circuit, including whether a driver’s license is a “motor vehicle record,” whether the DPPA
applies to records outside the possession of a state DMV, and whether the DPPA’s
restrictions on the obtaining, use, and dissemination of records impinge on the First
Amendment. But those questions must be answered another day, for we affirm the district
court on the following, much narrower ground.
To be civilly liable under the DPPA, a defendant must have obtained a plaintiff’s
personal information “from a motor vehicle record.” § 2724(a) (emphasis added). But the
Plaintiffs do not allege that the Defendants obtained any of the Plaintiffs’ personal
information “from” any of the sources that they argue constitute “motor vehicle record[s].”
Id. (emphasis added). Thus, even assuming for the sake of argument that everything the
6
The Plaintiffs’ failure to allege that they personally were facing an ongoing or
imminent injury may make sense in the context of a class action. Cf. Gratz v. Bollinger,
539 U.S. 244, 260–68 (2003) (discussing class representative’s standing to seek injunctive
relief on behalf of class members not identically situated). But the district court denied
class certification, a decision that the Plaintiffs do not now contest and did not previously
seek to appeal on an interlocutory basis pursuant to Federal Rule of Civil Procedure 23(f).
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Plaintiffs consider to be a “motor vehicle record” is, in fact, a “motor vehicle record,” the
Plaintiffs cannot prevail.
We begin with the statutory text. The DPPA provides a cause of action against “[a]
person who knowingly obtains, discloses or uses personal information, from a motor
vehicle record, for a purpose not permitted under this chapter . . . .” Id. (emphasis added).
The next section of the statute defines a “motor vehicle record” as “any record that pertains
to a motor vehicle operator’s permit, motor vehicle title, motor vehicle registration, or
identification card issued by a department of motor vehicles.” Id. § 2725(1).
The parties spend a good deal of time arguing over what this definition of a “motor
vehicle record” under § 2725(1) might include. 7 But we think this case can be more easily
resolved on the basis of a simpler statutory term found in § 2724(a), i.e., “from.” To
illustrate why, we turn to each of the items Plaintiffs contend is a “motor vehicle record,”
and ask whether the Defendants obtained any personal information “from” those records.
A.
The Plaintiffs’ primary contention is that a driver’s license is a motor vehicle record.
See Garey Pls’. Br. at 36–41; Hatch Pls’. Br. at 31–35. Courts are divided on this question.
Some courts, reasoning from the structure of the DPPA, have held that a “motor vehicle
record” refers only to records held by a state DMV; under that reading of the text, because
7
As for the other elements of § 2724(a)’s cause of action, there is no question that
attorney solicitation is a “purpose not permitted under this chapter,” see Maracich v.
Spears, 570 U.S. 48, 76 (2013) (“Solicitation of prospective clients is not a permissible use
. . . under . . . the DPPA.”), nor that protected “personal information” includes “an
individual’s . . . name, [or] address.” See § 2725(3).
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a license is possessed by an individual driver rather than the DMV, it cannot be a “motor
vehicle record.” See, e.g., Andrews v. Sirius XM Radio Inc., 932 F.3d 1253, 1259–60 (9th
Cir. 2019). Another widely cited opinion focuses on the wording of the statutory definition
of a “motor vehicle record” to conclude that “[a] driver’s license [does not pertain to] a
motor vehicle operator’s permit; it is a motor vehicle operator’s permit.” Whitaker v.
Appriss, Inc., 266 F. Supp. 3d 1103, 1108 (N.D. Ind. 2017). Still others have reached the
opposite result, reasoning that nothing in the statutory text limits “motor vehicle record[s]”
to records held by a state DMV and “that the use of the phrase ‘pertains to’ is meant to
expand the scope of the Act’s coverage, so that a driver’s information is protected not just
with respect to a small list of the most obvious motor vehicle records, but any related
records as well.” Eggen v. WESTconsin Credit Union, 2016 WL 4382773, No. 14 Civ.
873, at *3 (W.D. Wis. Aug. 16, 2016); see also Wilcox v. Swapp, 360 F. Supp. 3d 1140,
1145–46 (E.D. Wa. 2019).
We need take no position on this debate, because whether or not a driver’s license
is a “motor vehicle record,” it is undisputed that none of the Defendants obtained any
information “from” a driver’s license. 8
8
We note, however, that the Plaintiffs’ interpretation might well lead to absurd
results. For example, the statutory text would not appear to protect a defendant who obtains
a plaintiff’s personal information from a motor vehicle record with the implicit or verbal
consent of that plaintiff. See Whitaker, 266 F. Supp. 3d at 1110. So if a driver’s license is
a “motor vehicle record,” a bartender who looks at a patron’s proffered license to verify
that the patron is old enough to drink alcohol could be sued for liquidated damages of
$2,500 plus attorney’s fees and costs. See § 2724(b) (outlining remedies available under
the DPPA). We think Congress might be surprised to learn that it had enacted such a
sweeping change in the (night)life of the nation.
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B.
The Plaintiffs alternatively argue that even if the Defendants did not obtain their
personal information from a license, “the information came from . . . a driver’s license,”
because the crash report’s address field indicates whether the address is the same as that
on the license. Garey Pls’. Br. at 35 (emphasis added). As a matter of statutory plain
meaning, we are skeptical. The phrase “obtain, disclose or use personal information, from
a motor vehicle record” is most naturally read to refer to a defendant who obtains such
information directly “from a motor vehicle record” (or a defendant who uses or discloses
that information once so obtained), not a defendant who obtains information that, at some
point in time, appeared in a motor vehicle record.
This case might be different if Congress had said what the Plaintiffs assert Congress
meant, i.e., that the DPPA protects personal information derived from a motor vehicle
record, even if a defendant did not retrieve the information directly from such a record.
But Congress did not enact such a law. In fact, confirming what the plain text says,
Congress considered and rejected a version of the statute that would have done exactly
what the Plaintiffs believe Congress meant to do.
When first introduced, the DPPA lacked any private cause of action. See Driver’s
Privacy Protection Act of 1993, H.R. 3365, 103d Congress (1993). The first version of 18
U.S.C. § 2724(a) appeared on April 20, 1994, when Representative James Moran offered
an amendment that provided, in relevant part: “A person who knowingly obtains, discloses
or uses personal information, derived from a motor vehicle record, for a purpose not
permitted under this chapter shall be liable to the individual to whom the information
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pertains, who may bring a civil action in a United States district court.” 140 Cong. Rec.
7911, 7922 (Apr. 20, 1994) (emphasis added) (“the Moran Amendment”).
This language found a vehicle in the House’s initial version of the Violent Crime
Control and Law Enforcement Act of 1994, which included the DPPA as modified by the
Moran Amendment. See 140 Cong. Rec. 8112, 8142, 8193 (Apr. 21, 1994). But the House
and Senate could not immediately agree on the wide-ranging crime bill’s text. Thus, the
bill went to a conference committee, which excised the word “derived.” See 140 Cong.
Rec. 20702, 20867 (Aug. 10, 1994) (conference committee version). Both chambers
agreed to the conference committee’s version, and the President signed the DPPA into law
— without “derived.” See Pub. L. No. 103-322, § 300002, 108 Stat. 1796, 2101 (1994).
In light of this history, we must disagree with those courts that have held that if a
piece of personal information can be traced back to a motor vehicle record, “the DPPA
protects the information throughout its travels.” Pavone v. Law Offices of Anthony
Mancini, Ltd., 118 F. Supp. 3d 1004, 1007 (N.D. Ill. 2015) (quoting Whitaker v. Appriss,
Inc., 2014 WL 4536559, *4 (N.D. Ind. Sept. 11, 2014)); see also Wilcox, 360 F. Supp. 3d
at 1146. If that were the case, why delete “derived”? We cannot simply assume that
Congress made this change for no particular reason. 9 To the contrary, “[f]ew principles of
9
Nor can we assume that Congress thought that “from” and “derived from” mean
the same thing. And indeed, as a matter of ordinary English, they do not. If you needed
flour, eggs, and milk to bake a cake, you might say you purchased ingredients “derived
from” wheat, hens, and cows. But you probably would not say that you purchased
ingredients “from” wheat, hens, and cows, because as a general matter, plants and farm
animals do not directly engage in the sale of their own wares. In other words, the phrase
“derived from” contemplates intermediaries — e.g., the farmer in the cake example, or the
accident report here.
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statutory construction are more compelling than the proposition that Congress does not
intend sub silentio to enact statutory language that it has earlier discarded in favor of other
language.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (quoting Nachman
Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 392–93 (1980) (Stewart, J.,
dissenting)); see also Muniz v. Hoffman, 422 U.S. 454, 468 (1975) (explaining that
statutory text “may not be read isolated from its legislative history and the revision process
from which it emerged, all of which place definite limitations on the latitude we have in
construing it.”).
Thus, the legislative history clarifies the plain text: the DPPA imposes civil liability
only on a defendant who obtains personal information from a motor vehicle record, but not
on a defendant who merely obtains personal information that can be linked back to (i.e.,
derived from) such a record. The district court properly rejected the Plaintiffs’ contentions
to the contrary.
C.
Next, the Plaintiffs argue that a DMV database is or contains “motor vehicle
record[s],” such that “the name and address” on a driver’s license, and thus on an accident
report, “originate from the DMV” database. Garey Pls’. Br. at 36, 42; Hatch Pls’. Br. at
30–31, 35. A DMV database may well constitute or contain a “motor vehicle record.” But
there is no allegation that the Defendants accessed a DMV database, as has occurred in
other cases. See, e.g., Maracich, 570 U.S. at 52 (“Respondents are trial lawyers . . . [who]
obtained names and addresses of thousands of individuals from the South Carolina DMV
in order to send [attorney solicitation materials].” (emphasis added)). Instead, the
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Defendants obtained accident reports from local law enforcement agencies or private data
brokers. So regardless of whether a given DMV database is or contains “motor vehicle
record[s],” the Defendants here did not “obtain” any information “from” such a database.
D.
The Plaintiffs have one final theory as to the identity of the “motor vehicle record”
in this case “from” which the Defendants obtained personal information: the accident
report itself. This presents a difficult question. On the one hand, there is a non-frivolous
textual argument that an accident report is a “record that pertains to a motor vehicle
operator’s permit,” because the report indicates whether a driver’s address is the same as
that shown on their license. § 2725(1). Indeed, a district court in our circuit recently held
that the exact same kind of accident report at issue here is a “motor vehicle record” within
the meaning of the DPPA. See Gaston v. LexisNexis Risk Sols., Inc., 483 F. Supp. 3d 318,
336–37 (W.D.N.C. 2020). On the other hand, several courts have limited a DPPA “motor
vehicle record” to those documents held by a state DMV, which would exclude the accident
reports in question. See, e.g., Andrews, 932 F.3d at 1259–60; Fontanez v. Skepple, 563 F.
App’x 847, 849 (2d Cir. 2014) (unpublished) (summary order); Siegler v. Best Buy Co. of
Minn., Inc., 519 F. App’x 604, 605 (11th Cir. 2013) (unpublished) (per curiam). We need
not and do not reach this question, because the Plaintiffs have failed to preserve this
argument.
“It is well established that this court ‘does not consider issues raised for the first
time on appeal,’ ‘absent exceptional circumstances.’” Hicks v. Ferreyra, 965 F.3d 302,
310 (4th Cir. 2020) (alterations omitted) (quoting Robinson v. Equifax Info. Servs., LLC,
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560 F.3d 235, 242 (4th Cir. 2009)). “Rather, ‘when a party in a civil case fails to raise an
argument in the lower court and instead raises it for the first time before us, we may reverse
only if the newly raised argument establishes “fundamental error” or a denial of
fundamental justice.’” Id. (alterations omitted) (quoting In re Under Seal, 749 F.3d 276,
285 (4th Cir. 2014)). “This rigorous standard is an even higher bar than the ‘plain error’
standard applied in criminal cases, and the burden is on the party who has failed to preserve
an argument to show that the standard is met.” Id. (internal citation omitted). Neither set
of Plaintiffs comes close to meeting this standard, but because this is another instance in
which the cases before us differ slightly, we again deal with them separately. 10
1.
We begin with the Garey Plaintiffs, who not only failed to preserve this argument,
but affirmatively disavowed it before the district court. See Garey Pls’. Br. in Resp. to
Defs.’ Mots. to Dismiss Pls’. First Am. Compl. and Br. of Amici Curiae at 24 (“Defendants
begin by setting up a straw man argument: accident reports are not DMV records.
Plaintiffs do not contend otherwise.” (citations omitted)). And the district court took the
Garey Plaintiffs at their word. See Garey Summ. J. Ord. at 18 (“There are no allegations
10
Even if the Plaintiffs had timely raised before the district court the argument that
an accident report qualifies as a “motor vehicle record,” their attention to this argument in
their opening appellate briefs borders on a “passing shot at the issue,” Grayson O Co. v.
Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (citation omitted), which would likely
constitute waiver. See Garey Pls’. Br. at 43 (arguing in a conclusory fashion that “[s]ince
that [accident] report itself (or, at a minimum the Driver’s address on that report) is a motor
vehicle record, and since the [Defendants] obtained each Driver’s address from such a
report, the [Defendants] obtained the Drivers’ information ‘from a motor vehicle
record.’”); Hatch Pls’. Br. at 36 (same).
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that the accident reports are ‘motor vehicle records’ under the DPPA.”). After losing on
summary judgment, the Garey Plaintiffs forthrightly acknowledged in their brief in support
of their Rule 54(b) motion that they had “fundamentally altered [their] position on whether
a North Carolina DMV-349 accident report is, itself, a ‘motor vehicle record’ under the”
DPPA.
The district court rejected the Garey Plaintiffs’ effort to reverse course, reasoning
that the “Plaintiffs had several chances to make the straightforward contention that DMV-
349s were in fact motor vehicle records and chose not to do so.” Not only was this a plainly
proper reason to deny the Rule 54(b) motion, but the Garey Plaintiffs did not appeal that
denial. Considering arguments in a civil case for the first time on appeal requires an
extraordinarily compelling reason to do so. Here, the procedural history provides
extraordinarily compelling reasons not to do so.
2.
For their part, the Hatch Plaintiffs did not go so far as to label as a “straw man” the
argument that an accident report is the “motor vehicle record” from which the Defendants
obtained personal information. They simply failed to raise that contention in the district
court. Instead, the Hatch Plaintiffs asserted in their summary judgment briefing that the
“Plaintiffs’ information came from a motor vehicle record,” even if the Defendants did not
obtain that information from such a record. After losing on summary judgment, the Hatch
Plaintiffs moved under Rule 54(b), nominally to revise the district court’s summary
judgment order. But the Hatch Plaintiffs’ 54(b) motion really sought to revise their
summary judgment briefing. They contended that they had “in substance” argued that
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accident reports constitute “motor vehicle records,” because “there is no principled
distinction between . . . [the argument that] the entire DMV-349 is a DPPA motor vehicle
record, and the argument of Plaintiffs [in their summary judgment briefing] that the
addresses of the Plaintiffs on DMV-349s . . . constitute DPPA motor vehicle records.”
The district court declined to revisit its prior decision, holding that the Hatch
Plaintiffs had “fail[ed] to rebut the Court’s original statement” that “there are no allegations
that the accident reports are ‘motor vehicle records.’” The court did not err in doing so.
Depending on how one interprets the Hatch Plaintiffs’ summary judgment briefing, they
either presented the ‘derived from’ theory (which we have already discussed) or argued
that an address, which the DPPA defines as the kind of “personal information” found in a
“motor vehicle record,” see § 2725(3), is also a “motor vehicle record” unto itself. Neither
is an argument that an accident report is itself the “motor vehicle record” from which the
Defendants obtained personal information. And in any case, as in Garey, the Hatch
Plaintiffs did not appeal the district court’s denial of their Rule 54(b) motion.
Thus, neither set of Plaintiffs has met their heavy burden of convincing us to
consider for the first time on appeal their argument that an accident report is a “motor
vehicle record.”
IV.
Our holding today is narrow and straightforward. The district court correctly held
that the Plaintiffs have standing to seek damages, but not prospective relief. On the merits,
the DPPA imposes civil liability only on “[a] person who knowingly obtains . . . personal
information, from a motor vehicle record,” or one who uses or discloses personal
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information so obtained. § 2724(a). That means what it says: a DPPA plaintiff must allege
and prove that the defendant obtained the plaintiff’s personal information “from a motor
vehicle record.” Id. (emphasis added).
Given that holding, we must affirm. Whether or not driver’s licenses or DMV
databases constitute “motor vehicle record[s]” (questions on which we take no position),
the Defendants did not obtain the Plaintiffs’ personal information from licenses or DMV
databases. The Defendants obtained the Plaintiffs’ personal information from accident
reports — but the Plaintiffs failed to preserve the argument that those accident reports are
“motor vehicle record[s].” Therefore, the judgment of the district court is
AFFIRMED.
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